Lasting Effects of the #MeToo Movement

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, orshutterstock_me too 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.

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Novel Legislation: Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018

harassmentWith 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

Highlights of the Spring 2018 Regulatory Agenda – Part 1: Initiatives of the NLRB

Spring 2018 Regulatory AgendaOn 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

Seeking to Pave the Way in the #MeToo Era, the California Legislature Veers off Course

By Andrew J. Sommer

shutterstock_me tooThe #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

Taxing Decisions: New Rules on Deductions and Credits in the Employment Context

By: Aaron Gelb

CalculatorAs 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

Kara Maciel to Speak at HR in Hospitality Conference on Marijuana Laws

marijuana pictureOn 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.

 

 

Conn Maciel Carey Opens Chicago Office with Prominent OSHA and Labor Lawyers Aaron Gelb and Mark Trapp

Washington, D.C.-based OSHA and Labor & Employment law firm Conn Maciel Carey LLP is pleased to announce the launch of a Midwest Office in Chicago, IL and the addition of two prominent Chicago attorneys – Aaron R. Gelb and Mark M. Trapp.

“We are thrilled not only to expand the Firm’s national footprint to the Midwest, but especially to be doing so with such great lawyers as Aaron and Mark,” said Bryan Carey, the firm’s managing partner.  “This move will enable us to better serve our existing national platform of clients, and will strengthen the firm’s specialty focus on Labor & Employment and Workplace Safety Law.  We look forward to bringing Aaron and Mark on board, as they will add depth to all areas of the firm’s practice, including OSHA, litigation and labor counseling on behalf of our management clients.”

Mr. Gelb, former Labor & Employment Shareholder and head of the OSHA Practice at Vedder Price PC, in its Chicago office, represents employers in all aspects of the employer-employee relationship.  Aaron GelbAaron’s practice has a particular emphasis on advising and representing clients in relation to inspections, investigations, and enforcement actions involving federal OSHA and state OSH programs, and managing the full range of litigation against OSHA.

“Aaron and I share the same vision of how we want to practice law and do business, thus entrusting him with the keys to our new Chicago office, and combining our expertise, talent, and resources together made so much sense,” said Eric J. Conn, Chair of the firm’s national OSHA practice“We look forward to partnering with Aaron to build a solid brand for our Midwest practice among our client base and doing what we know best, providing top-notch service and excellent value to clients.”

Aaron also has extensive experience litigating equal employment opportunity matters in federal and state courts having tried a number of cases to verdict and defending employers before the EEOC as well as fair employment agencies across the country.  In the past 5 years alone, Aaron has successfully handled more than 250 discrimination charges.

Mr. Gelb said “I am incredibly excited to join what I believe to be the country’s leading OSHA practice as the experience and expertise of the Conn Maciel team will enable me to enhance the workplace safety legal support I currently provide to my clients in the Midwest and beyond.  I’ve known Eric for years and have great respect for what he and his colleagues have accomplished in the OSH field.  At the same time, Kara’s employment defense group fits perfectly with my practice as we share a common client-focused philosophy and deep experience in many of the same industries.  While leaving Vedder Price after nearly 20 years was not an easy decision, I simply could not pass up the opportunity to partner with two dynamic attorneys that so perfectly complement the dual aspects of my practice.”

Mr. Trapp joins the firm with seventeen years of experience, during which he has represented employers in all types of labor disputes, from union campaigns and collective bargaining to grievances and arbitrations. Mark M. Trapp (3)Mr. Trapp has defended employers before administrative agencies and in litigation brought under the ADA, ADEA, Title VII and other federal anti-discrimination laws.

Mr. Trapp said “I am thrilled to again have the opportunity to work with the top-notch legal professionals at Conn Maciel Carey.” According to Mr. Trapp, the expertise of a boutique firm focused on OSHA and other labor and employment matters “complements my experience handling labor and employment issues. I look forward to helping strengthen the team’s ability to provide exceptional knowledge and insights to labor and employment clients, and expanding the firm’s presence in the Midwest.”

Mr. Trapp is perhaps best known as a leading authority on multi-employer pension withdrawal liability.  His articles on withdrawal liability and other labor and employment issues have been published in respected legal publications.

“I have worked with Mark for over a decade at various law firms, so I am excited that he has joined our boutique practice that focuses on positive client solutions and effective client service.  His unique knowledge of traditional labor issues and multi-employer pension disputes is unparalleled and he has proven to be a creative and out-of-the-box adviser when counseling clients,” Kara M. Maciel, Chair of the Labor & Employment Practice reported.