On October 8, 2023, California Governor Gavin Newsom signed into law Senate Bill No. 497, the “Equal Pay and Anti-Retaliation Protection Act.” The new law amends California Labor Code sections 98.6, 1102.5, and 1197.5 to create a “rebuttable presumption of retaliation” if an employee experiences an adverse employment action within 90 days of engaging in any protected activity covered by the specified sections. This new law, which will become effective on January 1, 2024, also entitles a prevailing plaintiff civil penalties for each violation.Continue Reading New California Law Makes It Easier for Employees to Establish Retaliation Claims for Alleged Labor Code Violations
At the end of June, the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows Of Harvard College, Nos. 20-1199 & 21-707, 2023 WL 4239254 (U.S. June 29, 2023), outlawed race-based affirmative action in higher education. Splitting along ideological lines, the Court’s conservative supermajority ruled, 6-3, the college admissions programs of Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment. The monumental decision, which dispensed with 45 years of precedent allowing race-conscious admission policies to achieve a diverse student body, has upended the world of higher education.Continue Reading What Does Affirmative Action’s Death Knell Mean for Employers?
In People ex rel. Garcia-Brower v. Kolla’s, Inc., the California Supreme Court resolved a split between the Courts of Appeal for the First and Second Districts over whether a protected “disclosure” under Labor Code section 1102.5(b) includes a report of unlawful activity made to an employer or agency that already knew about the reported unlawful activity. The Supreme Court held that it does.Continue Reading California Supreme Court Adopts Broader Definition of “Disclosure” Under State Whistleblower Law
As we previously reported, the Equal Employment Opportunity Commission (“EEOC”) has had on its radar potential harms that may result from the use of artificial intelligence technology (“AI”) in the workplace. While some jurisdictions have already enacted requirements and restrictions on the use of AI decision making tools in employee selection methods, on May 18, 2023, the EEOC updated its guidance on the use of AI for employment-related decisions, issuing a technical assistance document titled “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964” (“Updated Guidance”). The Updated Guidance comes almost a year after the EEOC published related guidance explaining how employers’ use of algorithmic decision-making tools may violate the Americans with Disabilities Act (“ADA”). The Updated Guidance instead focuses on how the use of AI may implicate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Particularly, the EEOC focuses on the disparate impact AI may have on “selection procedures” for hiring, firing, and promoting.Continue Reading The Use of Artificial Intelligence in Employee Selection Procedures: Updated Guidance From the EEOC
On December 7, 2022, President Biden signed the Speak Out Act (the “Act”) into law. The Act limits the enforceability of pre-dispute non-disclosure and non-disparagement clauses relating to sexual assault and sexual harassment claims, but does not prohibit such provisions in settlement agreements or severance agreements. Continue Reading President Biden Signs “Speak Out Act” Limiting the Enforceability of Non-Disclosure and Non-Disparagement Provisions in Sexual Harassment Cases
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
In Lawson v. PPG Architectural Finishes, Inc., __ P.3d __, 2022 WL 244731 (Cal., Jan. 27, 2022), the California Supreme Court clarified that whistleblower retaliation claims brought under Labor Code section 1102.5 should not be evaluated under the McDonnell Douglas test, but instead the standard enumerated in Labor Code section 1102.6. Under the section 1102.6 standard, a plaintiff must show that a protected activity was a contributing factor in a prohibited action against the employee by a preponderance of the evidence. The employer must then demonstrate with clear and convincing evidence that the action would have occurred for legitimate, independent reasons, even if the employee had not engaged in protected action.
Continue Reading California Supreme Court Holds That McDonnell Douglas Standard Should Not Be Used When Evaluating Whistleblower Retaliation Claims
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
In January 2020, Illinois legalized the use of recreational marijuana through the Cannabis Regulation and Tax Act (“the Act”). Two months later, many employees began working remotely because of the pandemic. Today, work-from-home continues to blur the lines between “work” and “home” in countless ways, and employee drug policies are no exception. The new world of remote work has left many employers wondering what to do with their drug policies now that cannabis is legal and their employees are remote or hybrid. Can an employer lawfully prevent their employees from using cannabis while working from home?
Continue Reading What Do I Do With My Workplace Drug Policy Now That Cannabis Is Legal in Illinois and My Employees Are Remote?
The Equal Employment Opportunity Commission (“EEOC”)—the agency tasked with enforcing federal labor laws—was deputized by Congress in 1972 with authority to bring lawsuits against employers for violating anti-discrimination laws and retaliating against employees. Since then, the agency has made a concerted and aggressive effort to challenge, among other things, standard clauses in separation agreements that have the potential to chill former employees’ participation in legal actions against their former employers, including non-cooperation and covenant not to sue clauses. This concern is especially salient in the age of COVID-19, where many employers are using separation agreements at a breakneck pace due to the unprecedented rate of employee layoffs, and EEOC enforcement actions may be just around the corner.
Continue Reading Employee Separation Agreements Likely to Face Increased EEOC Scrutiny
On January 1, 2021, various new and amended employment laws will go into effect in California. Below is a summary of some of these laws that employers should make themselves aware of heading into the new year. All laws discussed in this post go into effect on January 1, 2021, unless otherwise noted.
Continue Reading New Employment Laws to Look Out for in 2021