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.
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.
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:
On June 3, 2022, the full court of the U.S. Court of Appeals for the District of Columbia overturned long-standing precedent regarding the burden of proof a plaintiff must carry in pursuing a Title VII Claim. In Chambers v. District of Columbia (D.C. Cir. 2022), the D. C. Circuit held in a 9-3 en banc decision that when an employer transfers an employee or denies an employee’s request for a transfer because of the employee’s race, color, religion, sex, or national origin, the employer violates Title VII by discriminating against the employee in his or her “terms, conditions, or privileges” of employment. The court’s opinion overruled a nearly 24-year old precedent that held the denial or forced acceptance of a job transfer is actionable only if an employee suffers “objectively tangible harm.” See Brown v. Brody (D.C. Cir. 1999). The court’s decision could have sweeping effects on Title VII litigation throughout the country, as the diminished burden of proof is significantly more plaintiff-friendly and causes concern for employers when evaluating job transfers and potentially other employment actions.
The plaintiff worked in the Attorney General’s office in the District of Columbia for more than two decades as a clerk, Support Enforcement Specialist, and investigator. She requested several transfers to other units in the Attorney General’s office after complaining that she had a much larger caseload than her comparators. All of her transfer requests were denied, and she ultimately filed an EEOC charge and a lawsuit in 2014 alleging sex discrimination and retaliation.
The district court relied on Brown in granting the District of Columbia’s motion for summary judgement. On appeal, a three-judge panel of the D.C. Circuit upheld the district court’ ruling. However, two of the three judges highlighted that Title VII does not make any reference to “objectively tangible harm” and requested the full court to further review the matter.
The D.C. Circuit, in common with many other federal courts, has long imposed this tangible harm requirement articulated in Brown because of the view that Title VII is not a general “civility code” and that employees challenging discriminatory decisions should show more than de minimis harm lest courts be involved in supervising myriad routine business decisions. However, the en banc panel overruled Brown – holding that the refusal of a transfer request for one employee while granting similar requests to a similarly situated co-worker on the basis of a protected trait is discriminatory because it “deprives the employee of a job opportunity.”
AI refers to a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.” It can feature in software used to complete tasks previously completed by human beings. Relevant to the discussion with Commissioner Sonderling, employers can use AI in most employment and/or hiring decisions, such as who to inform about a new position, who to interview, and who to select for a position.
When making those decisions, employers could suffer liability if they discriminate against an individual based on their race, color, religion, sex, national origin, age, pregnancy, disability status, or genetic information. Unlawful discrimination can occur two ways – disparate treatment and disparate impact. Disparate treatment occurs when individuals are intentionally discriminated against by an employer, whereas disparate impact refers to unintentional discrimination – where an employer’s neutral policies or procedures negatively impact individuals in a particular protected class.
Employers should be aware, as Commissioner Sonderling stressed in his remarks, that AI technologies are only as good as the data and training used to develop them. There have been numerous instances where employers who used AI tools to assist in employment and/or hiring decisions have been left with discriminatory results and potential disparate impact liability as a direct result of the technology.
Commissioner Sonderling offered some examples of ways that AI could unintentionally produce discriminatory results in employment decisions:
“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 →
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.
Announcing Conn Maciel Carey’s 2022 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 2 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.
To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you. If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.
2022 Labor and Employment Webinar Series – Program Schedule
Earlier this week, the EEOC finally updated its guidance on Title VII and Religious Objections to COVID-19 Vaccine Mandates, which will impact how employers will implement their various vaccination, testing, and masking requirements.
US law has long-recognized an exemption from mandatory work policies (including vaccine-mandates) based on sincerely held religious beliefs, pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state statutes). For employers, evaluating religious exemption requests can be tricky (certainly trickier than requests for medical/disability-based exemptions), as there is often no readily verifiable evidence to help ascertain whether an employee’s religious objection to the work policy is a sincerely held religious belief (or even a religious belief at all). Indeed, although it is permissible to attempt to obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system, and employee is not required to provide such a statement, as they may not be affiliated with an organized religion. Furthermore, as an end-around to COVID-19 vaccine-mandates, many employees nationwide are attempting to seek a religious exemption when their actual objections are really based in political, ethical, or personal beliefs.
In response to requests from the regulated community, the EEOC has attempted to provide more clarity so that employers can have more confidence in implementing their accommodations process, and in many instances, to push back on suspect claims by employees of the need for a religious exemption. The guidance does offer some useful tools for employers, but unfortunately, it is not as helpful as we had hoped it might be.
The theme of the EEOC’s updated guidance is that employers must make an individualized evaluation of each employee’s request for a religious accommodation. The EEOC renewed Continue reading →
The seemingly never ending battle over employment arbitration agreements in California continues with last week’s Ninth Circuit court decision vacating a preliminary injunction over 2019’s California Assembly Bill 51 (previously discussed here and here).
Back in 2019, California Governor Gavin Newsom signed Assembly Bill 51, which added section 432.6 to the California Labor Code and sought to ban new mandatory arbitration agreements to the extent they cover any discrimination claims under the California Fair Employment and Housing Act (FEHA), or any claims under the California Labor Code. Under this legislation, an applicant or employee could not, as a condition of employment, continued employment or the receipt of any employment-related benefit, be required to waive any right, forum, or procedure under the FEHA or any other specific statute governing employment. Employers would also be prohibited from threatening, terminating or otherwise retaliating or discriminating against an applicant or employee because of the refusal to consent to a waiver. Violations of these provisions would constitute unlawful employment practices under the FEHA and would be a misdemeanor.
Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine. Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use. While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.
As explained in our prior blog, employers can mandate employee vaccinations under federal law. The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces. The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:
We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.