The United States Supreme Court is currently considering two cases concerning whether race-conscious admissions programs are permissible under federal law. While these cases are limited to the relatively narrow universe of college admissions, the Court’s decision may be instructive to private employers and will likely have implications beyond the classroom.
As economists argue whether a recession is on the horizon, some employers may begin to prepare to cut expenditures, including through a reduction in force. While not necessary under most state laws, many employers opt to provide severance to employees they choose to lay off. This severance is usually provided by way of a separation agreement in exchange for the employee’s agreement not to bring certain claims against the employer, among other things. As employers begin determining whether they will undergo a reduction in force, they should ensure their separation agreements adhere to applicable state laws.
Continue Reading Considering a Reduction in Force? Time to Revise Your Separation Agreement Template
Beginning January 1, 2024, and following the passage of Assembly Bill 2188, the California Fair Employment and Housing Act (FEHA) will add employee protections against discrimination based on off-the-job cannabis use with a few, limited exceptions. Governor Newsom signed Assembly Bill 2188 into law on September 18, 2022. AB 2188 focuses on employee impairment from cannabis use, which it correlates only to the psychoactive component of cannabis, tetrahydrocannabinol (THC) and places new requirements on employer-required drug screening tests. AB 2188 is significant because it is the first time that California’s permissive cannabis-use laws have been incorporated into the employment realm. California employers should consider reviewing their job application process and any pre-employment drug screening protocols, as well as their policies and practices relating to drug screening in connection with hiring, discipline, and termination to ensure they will comply with the new law.
Continue Reading California Expands Employees’ Right to Off-Duty Cannabis Use
On September 27, 2022, California Governor Newsom signed the state’s pay transparency bill, SB 1162, into law, requiring employers with 15 or more employees to disclose pay ranges in job postings, beginning on January 1, 2023. California now joins Colorado, Washington, and New York City with this requirement. SB 1162 also requires certain employers with 100 or more employees to report certain demographic information regarding their employees to the California Civil Rights Division, beginning in May 2023.
In a last minute whirlwind of activity by California’s Legislature, a significant number of employment-related bills have now made their way to Governor Newsom’s desk and await their fate. Below are highlights of some of the bills that may affect California employers, should Governor Newsom sign them into law.
On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing the application of the Americans with Disabilities Act (“ADA”) to employers utilizing software, algorithms, and artificial intelligence in hiring and employment decisions. Produced in connection with the EEOC’s launch of its Initiative on Artificial Intelligence and Algorithmic Fairness in October 2021, the EEOC’s latest guidance reflects its goal of ensuring that employers utilizing technology in hiring and employment decisions are complying with federal civil rights laws. Notably, the guidance was issued a few days after the EEOC filed a complaint against a software company alleging age discrimination, potentially signaling similar actions related to the use of artificial intelligence in the employment context. Below are some key takeaways on the new guidance.
For those larger Illinois employers who have not yet reported payroll and diversity data to the Illinois Department of Labor (the “IDOL”), now may be the time. The IDOL recently issued guidance to help employers navigate their reporting requirements (the “Guidance”).
On May 13, 2022, a law requiring publicly held corporations headquartered in California to have women on the board of directors was enjoined from being enforced and declared unconstitutional after a bench trial in Los Angeles Superior Court. In Crest v. Padilla, a judge ruled that the law violated the Equal Protection Clause of the California Constitution because it created a suspect gender classification without a compelling state interest, and the law was not necessary or narrowly tailored to achieve the State’s goals of remedying gender discrimination or benefiting the economy.
On March 16, 2022, New York Governor Kathy Hochul signed into law two amendments to the State’s workplace anti-discrimination and anti-harassment laws.
Continue Reading New York State Amends Its Workplace Anti-Discrimination and Anti-Harassment Laws
The California Department of Fair Employment and Housing (“DFEH”) recently announced a new effort to identify and correct violations of the Fair Chance Act. The Fair Chance Act, which was enacted in January 2018 and is commonly known as California’s “ban-the-box” law, amended the Fair Employment and Housing Act (“FEHA”) to prohibit employers with five or more employees from directly or indirectly inquiring into, seeking the disclosure of, or considering an applicant’s conviction history (including questions on a job application) until after the applicant receives a conditional offer of employment. We previously summarized employers’ obligations under the Fair Chance Act here.
Continue Reading The Department of Fair Employment and Housing Ramps Up Enforcement of California’s “Ban-the-Box” Law
In 2018, California passed Senate Bill 820, the STAND Act (Stand Together Against Non-Disclosure Act), in response to the #MeToo movement. SB 820 prohibited the use of confidentiality provisions in settlement agreements where the underlying claims were based upon sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. The law did not extend to claims based upon other protected characteristics. Therefore, a confidentiality provision in a settlement agreement could not prevent an individual from discussing the factual information related to sexual harassment or sex discrimination allegedly experienced in the workplace, but could preclude an individual from discussing factual information related to harassment or discrimination based upon any other protected characteristic (e.g., race, age, gender, etc.). You can read our prior blog article here.
Continue Reading California’s SB 331 Extends Sweeping Changes to Workplace Settlement and Separation Agreements