Legislation

Reasonable Accommodations under the Pregnant Workers Fairness Act

Ashley D. Mitchell Leave a comment

The Pregnant Workers Fairness Act (“PWFA”) was signed by President Biden on December 29, 2022, and takes effect on June 27, 2023. The PWFA requires covered employers to provide a reasonable accommodation to the known limitations of a qualified employee related to pregnancy, childbirth, or related medical conditions unless the accommodation would pose an undue hardship on the operation of the business.

Below is a summary of the PWFA.

Who is a covered employer?

A covered employer is an employer with at least 15 employees. Employers may look to EEOC regulations related to Title VII and how courts interpret employers under Title VII for purposes of determining coverage as the PWFA explicitly references the Title VII definition of employer.

What does the PWFA require?

Under Title VII employers cannot discriminate against an employee based on pregnancy, childbirth, or related medical conditions. Likewise, employers covered by Title VII must treat an employee affected by pregnancy, childbirth, or related medical conditions the same as other workers with similar abilities or an inability to work.

Continue reading →

Pay Transparency Laws and New State Laws re: Non-Compete Agreements [Webinar Recording]

Theresa Green Leave a comment

On Thursday, April 20, 2023, Daniel Deacon and Samuel Rose presented a webinar regarding Pay Transparency Laws and New State Laws re: Non-Compete Agreements.

Pay transparency laws have taken the country by storm. In December 2021, New York City Council passed a pay transparency measure that went into effect in November 2022. California passed a similar law that went into effect in January 2023. The trend will likely spread to other states across the country. This webinar explained the laws, compliance challenges, and some tips to make compliance easier. It also covered a general overview of new state laws regarding non-compete agreements, including the District of Columbia’s Ban on Non-Compete Agreements Amendment Act, which went into effect in October 2022.

Participants in the webinar learned: Continue reading →

Illinois Set to Become the Third State with a Mandatory Paid Leave Law

Daniel C. Deacon Leave a comment

The Illinois Paid Leave for All Workers Act (Senate Bill 208), which will provide paid leave to virtually all Illinois employees, was passed by the Illinois legislature on January 10, 2023 and was sent to the Governor J.B. Pritzker for signature on January 30, 2023.  Governor Pritzker has publicly supported this bill and it is expected he will sign the bill into law soon.   Illinois is set to join Nevada and Maine as the only three states in the country with a mandatory paid leave law- requiring nearly all Illinois employers to provide employees up to 40 hours of paid leave per year for “any purpose.”  This will have significant impact on Illinois employers, and it is imperative for employers to take proactive steps to review existing leave policies and prepare to implement the Act’s requirements when it goes into effect on January 1, 2024.

Scope of the Act

The Act will apply to all Illinois employers except school districts organized under the School Code and park districts organized under the Park District Code.  Furthermore, all Illinois employees will be covered with a few limited exceptions:

  • employees under the federal Railroad Unemployment Insurance Act or the Railway Labor Act;
  • students employed by a college or university for less than 2 consecutive calendar quarters during a calendar year with no reasonable expectation of being rehired by the same employer of the same service in a subsequent calendar year;
  • employees working in the construction industry who are covered by a collective bargaining agreement (“CBA”); and
  • employees covered by a collective CBA with an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents, and freight.

The Act will not impact the validity or otherwise modify the terms of a CBA in effect on January 1, 2024. The Act’s requirements can be waived in a bona fide CBA as long as the waiver is set forth explicitly in the agreement in clear and unambiguous terms.

Th Act also exempts those employers that are covered by a municipal or county law in effect on Jan. 1, 2024, such as the Chicago Minimum Wage and Paid Sick Leave Ordinance and the Cook County Earned Sick Leave Ordinance.  For any municipal or county ordinances enacted or amended on or after January 1, 2024, employers are only required to comply with the provisions of the local ordinance to the extent that it provides greater benefits, rights, and remedies to employees than those provided under the Act.

Accrual and Use of 40 hours of Leave in 12-Month Period

Beginning on January 1, 2024, covered employees will accrue one hour of paid leave for every 40 hours worked.  However, employees cannot use their paid leave until they have completed 90 calendar days of employment, or until March 31, 2024, whichever is later.

Continue reading →

Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Theresa Green Leave a comment

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

Continue reading →

New York City Pay Transparency Law Goes into Effect – Tips for Employers

Daniel C. Deacon Leave a comment

After a series of amendments passed by the New York City Council in the Spring of 2022 postponed the effective date of the New York City Pay Transparency Law, the law finally went into effect on November 1, 2022.  Employers need to take swift action to ensure that their job advertisements comply with the law, if they haven’t already done so.  The law amended the New York City Human Rights Law (NYCHRL) to make it an unlawful employment practice for a covered employer to advertise a job, promotion, or job transfer without disclosing the minimum and maximum salary or hourly wage range of compensation for the position that the employer in good faith believes it would pay for the position.

A covered employers is any employer with four or more employees, including independent contractor and owners, or one or more domestic workers, that has at least one employee who works, at least in part, in New York City.  The law also covers employment agencies of any size. Temporary help firms that recruit, hire, and assign their own employees to perform work or services for other organizations to support or supplement the other organization’s workforce are exempt from the disclosure requirements.  However, employers that work with temporary help firms must follow the disclosure requirements.

Prior guidance issued by the New York City Commission on Human Rights (the “Commission”) provides that the “salary” employers must disclose is the “base annual or hourly wage or rate of pay,” and it does not need to include other forms of compensation or benefits offered in connection with the advertised job, such as health insurance, 401K contributions or employer-funded pension plans, severance pay, overtime pay, commissions, tips, bonuses, and stock. The guidance also provides further instruction about how the law applies, which include the following highlights:

  • Coverage and Application
    • The four employees do not need to work in the same location, and they do not need to all work in New York City.
    • As long as one of the four employees works in New York City, the workplace is covered.
    • The disclosure requirements apply to any position that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home.  In other words, employers outside of New York City need to be aware of the law’s potential reach, especially with respect to remote jobs that could be filled by persons living (and working from) New York City.  Employers that post for remote jobs and have more than four employees should include compliant salary/wage ranges in postings for those jobs.
Continue reading →

Preparing for the Virginia Consumer Data Protection Act

Darius Rohani-Shukla Leave a comment

Beginning June 1, 2023, the Virginia Consumer Data Protection Act (CDPA) will come into effect for Virginia businesses and consumers.

What is the CDPA?

At its core, the CDPA is a data privacy law intended to provide guardrails on how businesses use and store the data of Virginia consumers. Virginia was the second state to pass a state data privacy law after California’s California Consumer Privacy Act (CCPA).

The CDPA will apply to covered businesses that conduct business in Virginia or affect Virginia commerce through targeting products and/or services to Virginia residents.  For the CDPA to apply to a company, it must either:

  • Control or process the personal data of at least 100,000 consumers during a calendar year; or
  • Process the personal data of at least 25,000 consumers and derive more than 50 percent of their gross revenue from selling personal data.

Personal data in this context includes “any information that is linked or reasonably linkable to an identified or identifiable natural person.”

What are the CDPA requirements?

The CDPA draws on concepts from the California Privacy Rights Act, CCPA, and the General Data Protection Regulation (GDPR) by establishing consumer rights relating to Privacy.

The main areas of the CDPA that businesses should prepare for are as follows:

Continue reading →

After the Supreme Court’s Ruling in Dobbs, Employers Explore Options in Providing Travel-for-Care Benefits

Kara Maciel Leave a comment

In the wake of the U.S. Supreme Court’s decision in Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organization, et. al., employers across the country have faced uncertainty in how to navigate the various federal and state laws regarding health-related services for their employees.  This is particularly challenging for employers in states that have laws that provide for criminal liability.  The Dobbs decision may impact how employers modify their employee benefit plans or create new plans to cover the cost of travel and lodging for medical care, including abortion, that require travel out of state. 

Texas’ bounty law is likely the most novel and we have received many questions on whether a company could face criminal liability under that statute for providing benefits to travel of state.  Texas Senate Bill 8 prohibits physicians from performing or inducing abortions if the physician detected a fetal heartbeat or failed to perform a test to detect a fetal heartbeat. Notably, this law authorized a private civil right of action – allowing any individual in the state of Texas to bring a civil action against any person [which while undefined in the Bill, in other contexts in the Texas code, does include corporations] who:

(1) performs or induces an abortion in violation of this subchapter;

(2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; or

(3) intends to engage in the conduct described in subdivision (1) or (2).

See TX SB8 Sec. 171.208

If a company wanted to offer coverage for procuring abortions in other states through its health benefit plans, there are several legal considerations that the company should be aware of.  First, under TX SB8 Sec. 171.208 (2), it is unlawful for any individual to aid or abet an individual in procuring an abortion. The Texas statute specifically prohibits “abortion[s] of unborn child[ren] with detectable fetal heartbeat[s]” and outlaws the conduct of physicians that “knowingly perform or induce an abortion on a pregnant woman if the physical detected a fetal heartbeat.” The statute itself defines a physician as “an individual licensed to practice medicine in this state.” So, the violations referenced in the statute arguably are limited only to those abortions conducted contrary to the statute by Texas physicians. If an organization’s health plan allows, as a benefit, costs to be recovered for traveling to procure an abortion in another state – then that would not be an action that would incur civil liability by a Texas physician. The statute legislates that abortions performed by Texas physicians are unlawful; it does not refer to travel to other states, and no court has yet opined on the scope of the statute in that context.  But, even if a lawsuit was brought under that theory, the company could raise the general presumption against extraterritorial application of state law.   

Continue reading →

Maryland Joins a Number of States by Enacting a Paid Family and Medical Leave Law

Daniel C. Deacon Leave a comment

Maryland recently became the tenth state to enact a paid family leave law – joining California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island and Washington, as well as the District of Columbia and San Francisco.  Although the legislature passed the Maryland Time to Care Act of 2022 by a supermajority vote on March 31, 2022, Governor Hogan opposed the bill and vetoed it on April 8, 2022.  Just one day later, however, the legislature voted to override Governor Hogan’s veto by an overwhelming majority.  

Although the bill will be phased in over the course of the next two-and-a-half years, Maryland employers should pay close attention to the law and the regulations that the Maryland Department of Labor will be implementing within the next year.  To get ahead, employers should proactively make plans to revise their current leave policies and reach out to their HR and payroll providers to ensure that they are prepared to handle the necessary payroll tax contributions.

Effective Dates and Roll-Out of the Act

Similar to how the District of Columbia and other jurisdictions implemented their paid family leave laws, the law will be phased in over the course of several years.  Specifically, the Act establishes a Family and Medical Leave Insurance Fund that will require all employers with 15 or more employees, all employees, and all self-employed individuals that elect to participate in the program to make contributions a fund beginning October 1, 2023.  Notably, employers with less than 15 employees are not required to contribute to the fund, but employees of those small employers will still be required to contribute to the insurance fund.

The contribution rates will be set by the Maryland Secretary of Labor by June 1, 2023.  Covered employees will be eligible to claim and receive benefits approximately a year-and-a-half later on January 1, 2025.   The funding requirements and employer/employee contribution rates will also be periodically reviewed and subject to change based on bi-annual studies and recommendations by the Maryland Secretary of Labor.

Coverage and Qualifying Events under the Act

The Act defines “covered employer” broadly to any person or governmental authority that employs at least one individual in the state of Maryland.  However, there are certain limitations on who is eligible to claim benefits.  Covered individuals – i.e. employees eligible to claim benefits under the Act – are defined as employees who have worked at least 680 hours over the 12-month period immediately before the date that leave is to begin.

Continue reading →

Natural Hairstyles in the Workplace: The CROWN Act

Ashley D. Mitchell Leave a comment

“R-E-S-P-E-C-T. Find out what it means to me.” More than half a century after Aretha Franklin first sang those lyrics, state legislatures, local municipalities, and Congress are passing the Creating a Respectful and Open Workplace for Natural Hair legislation (“CROWN Act”). Before the flurry of legislation aimed at protecting natural hair, some appellate courts already applied the protections of Title VII liberally. In Jenkins v. Blue Cross Mut. Hosp. Ins., the 7th Circuit held a plaintiff’s EEOC charge sufficiently alleged race discrimination where plaintiff’s EEOC charge stated plaintiff’s boss denied plaintiff a promotion because plaintiff “could never represent [defendant] with [an] Afro.” 538 F.2d 164, 168 (7th Cir. 1976). Other courts, however, took a narrower approach. In EEOC v. Catastrophe Mgmt. Solutions, the 11th Circuit reasoned “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practice[,]” thereby upholding a race neutral grooming policy that prohibited dreadlocks. 852 F.3d 1018, 1028-34 (11th Cir. 2016). Indeed, as recently as 2018, the U.S. Armed Forces maintained grooming policies that prohibited natural or protective hairstyles commonly worn by Black servicemembers because the hairstyles were “unkempt.”

The CROWN Act

More than a dozen state legislatures already passed a variation of the CROWN Act Continue reading →

Challenges to California’s Corporate Board Diversity Laws Continue

Megan Shaked Leave a comment

A number of lawsuits challenging California’s corporate board diversity laws are still working their way through litigation, even years after the legislation went into effect.

Senate Bill 826

In 2018, California enacted Senate Bill 826, requiring California-based publicly held companies to have a minimum number of women on their boards of directors.  Such boards needed to have at least one female director by the end of 2019.  By the end of 2021, boards needed to have two female directors if the corporation has five directors and three female directors if the corporation has six or more directors.  A corporation out of compliance faces a $100,000 fine for the first violation and a $300,000 fine for a violation in any subsequent year. 

Assembly Bill 979

Continue reading →