On Thursday, October 25, 2018, at 1 pm EDT, join Kara M. Maciel and Andrew J. Sommer of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: “A Business Primer on Disability Access Laws: Preventive Tools and Defense Strategies“
Businesses continue to be plagued by litigation under the Americans with Disabilities, Title III (ADA) over alleged access barriers. Lawsuits against hotels and retailers, among other public accommodations, appear to be on the rise with a disproportionate share in California.
This webinar will provide an overview of ADA, Title III standards as they apply to construction existing before the enactment of the ADA in 1992 as well as to subsequent new construction and alterations. The webinar will also address Continue reading
It has been about a year since the #MeToo movement went viral, spreading greater awareness about sexual misconduct and harassment, and, more generally, the role of women, in the workplace. So, where are we now, and has anything changed? Was it just an awareness movement? Or, have things actually started to shift in the legal landscape with respect to the way employers are required to handle sexual misconduct and harassment? And what about with the way women are represented at work? Even if #MeToo may have started out as an awareness movement, states like New York and California are implementing changes in the law that are now imposing, or will soon impose, new requirements on employers, in hopes of giving #MeToo a significant, lasting effect. So, what should employers in New York and California do now? And, given that these states are often at the forefront of labor and employment issues, how should employers outside New York and California prepare in case new laws are passed in their states?
New York’s New Anti-Sexual Harassment Laws
On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, updating the state’s sexual harassment laws. Among other changes, there are two key components under these laws. First, every employer in New York must establish a sexual harassment prevention policy. These policies should have already been adopted and provided to all employees by October 9, 2018. The New York Department of Labor and New York Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt. But employers are not required to use this model, so long as their policy meets or exceeds the minimum standards of the model and set forth in the laws. Employers must distribute the policy to all employees in writing or electronically, and must ensure that all future employees receive the policy before they start work. Additionally, employers are encouraged to post a copy where employees can easily access it.
With the rise of the #MeToo movement, there have been a number of responses from both employers and state legislatures to address workplace harassment. As discussed during the EEOC Special Task Force Meeting on June 11, 2018, several state legislatures are taking proactive steps to combat workplace sexual harassment. For example, on May 15, 2018, Maryland Governor Larry Hogan signed and ratified the Maryland Disclosing Sexual Harassment in the Workplace Act of 2018 – which passed the Maryland House (46-0) and Senate (136-1) with almost unanimous support.
The Act, which goes into effect on Continue reading
On Wednesday, the Office of Information and Regulatory Affairs released the Trump Administration’s Unified Regulatory and Deregulatory Actions (Agenda). This Agenda lays out the short-term and long-term regulatory and, pursuant to the Trump Administration’s focus on rolling back regulation, deregulatory priorities for all the different Federal Government Agencies, including the National Labor Relations Board (“NLRB”), Department of Labor (“DOL”), and Equal Employment Opportunity Commission (“EEOC”). Specifically, the Agenda identifies and briefly explains the rulemaking activities in which each Agency plans to engage over the remainder of 2018 and into the next year. Below, we have highlighted the major initiatives the NLRB has taken and intends to undertake as outlined in this Agenda. We will address highlights from the Agenda for the DOL and EEOC in Part Two of this post.
NLRB’s Intent to Establish Joint-Employer Standard
One of the initiatives that came as a surprise to many when it appeared in the Spring 2018 Agenda is a rulemaking to establish a standard to assess joint-employer status. This rulemaking has been initiated by the NLRB and is currently on the Long-term Actions list. Although agencies usually include items on the Long-term Actions list that they do not plan to act on within the next year, the press release issued by the NLRB in conjunction with the Spring 2018 Agenda indicates an intent to move on this rulemaking promptly. In the press release, Chairman John F. Ring states, “In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the [joint-employer] standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible…” (emphasis added). The press release also reveals that certain members of the NLRB – Chairman Ring and Members Emanuel and Kaplan – have already begun the internal process required to consider rulemaking on the standard. Continue reading
By Andrew J. Sommer
The #MeToo movement, formed in the wake of sexual misconduct allegations against high profile public figures, has dramatically changed the discourse over harassment. Various politicians, celebrities and business leaders have been implicated in varying degrees, from engaging in sexual misconduct to tolerating a workplace with a pervasive culture of harassment and bias. With this social movement gaining traction, the California legislature has introduced a flurry of bills seeking to change the perceived culture of workplace harassment but also revamp a host of existing general employment laws to add tools to the arsenal for employees and their attorneys. As an example, the legislature has introduced the following bills since January 2018
SB 820 – Non-Disclosure Clauses in Settlement Agreements
In the #MeToo movement, the use of non-disclosure agreements to keep harassment allegations from coming to light has drawn significant public criticism. The California legislature has recently stepped into the fray, by introducing Senate Bill (SB) 820 to generally ban non-disclosure provisions in settlement agreements resolving claims of sexual assault or harassment, sex discrimination, or harassment and retaliation for reporting such claims. Specifically, the bill prohibits settlement agreements from containing any provision preventing the “disclosure of factual information” related to these types of lawsuits, except where the provision was included at the request of the claimant. Continue reading
By: Aaron Gelb
As many individuals turn their attention to preparing and filing their tax returns on or before April 15, there are two notable changes to the tax code of which employers should take note. These changes, tucked away in the 2017 Tax Act (also known as the Tax Cuts and Jobs Act) (the “Act”), have gone largely unnoticed while most Americans have focused on the on-again, off-again government shutdown drama. The first change involves the deductibility of settlement payments made to resolve sexual harassment/abuse claims, while the second is a tax credit available, in certain circumstances, to employers that offer paid family leave to their employees.
Sexual Harassment and/or Abuse Settlement Payments
Section 13307 of the Act prohibits employers from deducting any settlement or payment related to sexual harassment or abuse claims if the settlement or payment is made subject to the sort of nondisclosure provisions commonplace in settlement agreements. This means that if an employer insists that the complaining employee keep the terms of the agreement confidential, the monies paid in exchange for the release are not deductible. The same presumably holds true if the employer conditions said payments on the claimant agreeing not to disclose the allegations set forth in the original claim that precipitated the settlement. Continue reading
On March 6, 2018, Kara Maciel, Chair of Conn Maciel Carey’s Labor & Employment Practice Group will present at the HR in Hospitality Conference on the recent trend of medical and recreational marijuana laws.
As we have written about in the past, to date, 26 states and the District of Columbia have legalized medical marijuana, and eight states (plus D.C.) permit its recreational use. As marijuana laws become more liberal and usage becomes more pervasive, employers must address the emergent issue of marijuana in the workplace and the legal implications of employee use. For example, must employers make accommodations for employees with valid marijuana prescriptions, allowing them to use the drug on the job? At this session, Ms. Maciel will discuss solutions to these and other accommodation issues, with a look at recent court opinions.
The HR in Hospitality conference is a unique event where hundreds of human resources and labor relations professionals from hotels, resorts, restaurants, casinos, cruise lines come together to learn legal and practical guidance on issues specifically tailored to the hospitality industry! To learn more about the conference and to register, click here.