Epstein Becker & Green

Recent headlines have highlighted changes occurring in the workforce. Generation Z will be entering the workforce in the new year, marking five generations working side by side. Therefore, as 2019 approaches, it will be pivotal for employers to have a grasp of the current state of the workplace and to focus on the melding of multiple generations in the workforce.

In this edition of Take 5, we review mandatory anti-sexual harassment training, the increased legalization of marijuana, gender identity classification, the importance of pay equity audits, and how to identify and protect your employees from microaggressions and unconscious biases.

Sexual Harassment Training Mandated in 2019

Nancy Gunzenhauser Popper

One of the most lasting impacts of the #MeToo movement comes in the form of state legislation mandating sexual harassment training for employees. Since October 2017, three jurisdictions have enacted laws instituting (or expanding) a requirement that employees receive anti-sexual harassment training on a periodic basis. New York and Delaware will now require annual training for all covered employees, while California will require training every other year. California, Connecticut, and Maine require anti-harassment training for managers on a biannual basis. We can expect to see more legislation in the next year, as laws to prevent harassment in the workplace become more commonplace.

Marijuana: A Growing Concern for Employers in 2019

Nathaniel M. Glasser

The legalization of marijuana continues apace: Nearly two-thirds of the states, plus Washington, D.C., have legalized medical marijuana. Michigan just became the 10th state to legalize recreational marijuana (following closely on the heels of Massachusetts), and New York Governor Andrew Cuomo has announced his intention to prioritize in 2019 the legalization of recreational marijuana. But employers should be aware that these laws are far from uniform, and the courts have taken different views of the enforceability of zero-tolerance policies. Two recent cases illustrate this conundrum—the U.S. Court of Appeals for the Ninth Circuit held that Montana law permitted an employer to discharge an employee for testing positive for marijuana use, while the U.S. District Court for the District of Connecticut held that Connecticut law prohibited an employer from rescinding an offer to an applicant who used medical marijuana. Notably, however, both courts concluded that the federal Drug Free Workplace Act does not preempt state legalization laws, and thus even federal contractors must be cognizant of applicable state requirements to accommodate or not to discriminate against marijuana users. In the coming year, employers should carefully evaluate their current workplace drug policies in light of changing state laws and shifting social perceptions that may influence the applicant (and talent) pool. While drug-testing policies should make clear that on-the-job consumption or being under the influence of marijuana remains against company policy, employers should take a considered approach as to whether and how testing for marijuana will occur.

Broad Interpretation of Laws Protecting Gender Identity and Expression

Amanda M. Gómez

The number of people identifying as gender non-binary is growing, shifting the conversation about workplace diversity and inviting a broader view of gender equity. The New York City Commission on Human Rights takes the position that non-binary employees are covered by the city’s statutory protections, and recently proposed new rules reinforcing these protections. Employers should be proactively evaluating their current policies and considering implementing new policies—such as adding gender options beyond male and female to internal forms, reviewing dress codes to ensure that they are gender neutral, or updating training materials for both managers and employees—in order to support their non-binary employees and remain compliant with the law.

Pay Equity Audits Are Becoming Increasingly Important for Employers

Marc A. Mandelman

The federal equal pay law focuses on equal pay for substantially equal work; however, this year, we’ve seen a broadening of that standard in a number of states. New Jersey’s Diane B. Allen Equal Pay Act, which went into effect on July 1, 2018, stands out for its broader standard, which may possibly establish a new model for future state laws. Therefore, performing a comprehensive pay equity audit will become increasingly important for employers to ensure that they are in compliance with more protective state laws. In addition, when performing a pay equity analysis, employers need to evaluate pay equity based on both salary and other forms of compensation, such as bonuses. In industries where salaries are set relatively consistently by position, the failure to consider other forms of compensation, such as bonuses, may cause misleading pay equity audit results.

The Impact of Microaggressions and Unconscious Bias on Company Culture

Susan Gross Sholinsky and Alyssa Muñoz

“Microaggressions” and “unconscious bias” (or “implicit bias”) have certainly become buzzwords for employers this year. Microaggressions typically take the form of verbal, nonverbal, or environmental slights against socially marginalized groups, and unconscious (or implicit) bias refers to an individual’s negative and positive attitudes and stereotypes derived from his or her background and experiences.

Microaggressions are often unintentional. And we all have unconscious biases. But problems can arise when these subtle prejudices influence business strategies, hiring decisions, and opportunities for advancement or development. Further, even if our actions do not, at the present time, rise to the level of unlawful conduct, microaggressions and unconscious biases left unchecked can create potential long-term consequences for a company’s culture, business deliverables, and employee retention, and can even lead to legal liability down the road.

As such, employers may wish to consider taking steps to address unconscious bias and microaggressions through training and as part of their overall diversity and inclusion strategy.

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