The current National Labor Relations Board (NLRB or Board) continues to take steps toward reversing union-friendly Obama-era NLRB rules and regulations. Previously, the Board sought public comment on whether it should change the NLRB rules and regulations established in 2015, also referred to by some as the “Ambush Election” Rules or “Quickie Election” Rules. On Aug. 12, 2019, the Board published a Notice of Proposed Rulemaking involving Representation Election procedures (Proposed Rule). The Proposed Rule is consistent with the Board’s use of formal notice-and-comment rulemaking to reshape labor law. It seeks to modify three policies that currently simplify unions’ ability to achieve and retain their status as the exclusive representative of employees for the purpose of collective bargaining: (1) the use of unfair labor practice charges to block petitions for a decertification election, (2) the use of voluntary recognition to prevent challenges to a union’s majority status via NLRB election procedures, and (3) the use of collective bargaining agreement language to convert a construction industry pre-hire agreement into a Section 9(a) collective bargaining relationship without an NLRB election or a showing of majority status.
On August 12, 2019, New York Governor Andrew Cuomo signed new legislation amending the New York State Human Rights Law (the “NYSHRL”), changing the State law’s previous adherence to certain fundamental principles of federal law concerning employment harassment generally, including the standard for determining employer liability for “hostile work environment” discrimination claims and the availability of punitive damages, among other issues. Whereas New York courts have historically interpreted the NYSHRL based on interpretations of claims filed under Title VII of the federal Civil Rights Act of 1964, the new amendments will alter the applicability of many significant precedents.
The amendment addresses workplace harassment, including but not limited to sexual harassment, against employees in any protected group. Claims of harassment based on age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or claims based on an employee’s opposition to such misconduct, are subject to the new provisions.
To begin with, the revised NYSHRL will now cover employers of all sizes, and even includes new protections for domestic workers, who will now be protected on the same grounds as other types of employees. Some of the law’s provisions take effect immediately, others within 60 days or 120 days of the law’s passage. Broadly stated, the law purports to provide “increased protections for protected classes and special protections for employees who have been sexually harassed.”
On August 9, 2019, New York state amended its Human Rights Law (NYSHRL) to expressly include the workplace protection of religious attire, clothing, and facial hair. The law becomes effective in sixty (60) days, on October 8, 2019.
While religious discrimination has long been outlawed under both state and federal law, this amendment makes clear that the definition of religion in New York state’s existing anti-discrimination statute includes bias against any employee’s religious clothing, facial hair, or attire.
Click here for the full GT Alert.
On July 24, 2019, the city of Chicago enacted the Chicago Fair Workweek Ordinance, intended to “enact and enforce fair and equitable employment scheduling practices in the City of Chicago…” Most provisions of the Ordinance go into effect on July 1, 2020.
The Ordinance covers employers primarily engaged in building services, health care, hotel, manufacturing, restaurant, retail and warehouse services industries and who employ 100 or more employees (250 or more employees for not-for-profit corporations), at least 50 of whom are considered “Covered Employees.” A Covered Employee spends the majority of his or her time at work in a covered industry while physically present in the city of Chicago and who earns $50,000 or less per year as a salaried employee, or $26.00 or less per hour as an hourly employee. For purposes of meeting these minimums, the number of Covered Employees is aggregated if they are employed by members of a unitary business group for Illinois income tax purposes.
The Ordinance covers restaurants only if the business has at least 30 locations and 250 employees. Restaurant businesses having three or fewer locations in the city under a sole franchise are exempt from coverage. In addition, there are certain other exceptions for employees who self-schedule or who work at certain types of venues or events.
Click here for the full GT Alert, which covers the requirements of the Ordinance, rights of Covered Employees, and enforcement and penalties.
On Aug. 6, 2019, New Jersey Acting Gov. Sheila Oliver signed a new “wage theft” law that expands the fines, penalties, and damages to be imposed for violations of the state’s wage payment law for an extended six-year statute of limitations period. The law takes effect immediately. In this GT Alert we explore the new law’s civil and criminal penalties for violators, additional retaliation protection, the expansive application of the new law, and key takeaways for employers.
Click here for the full GT Alert.
Last year was the most destructive fire season in California’s history. Over 7,600 wildfires burned nearly two million acres. As a result, on July 18, the California Department of Industrial Relations (DIR) Occupational Safety Health Standards Board adopted an emergency regulation to protect workers from hazards associated with wildfire smoke. The regulation is now in effect, following its approval on July 29, 2019, by the Office of Administrative Law.
The emergency regulation will be effective for one year, and applies where the current Air Quality Index (AQI) for airborne particulate matter (PM) 2.5 is 151 or greater (the AQI scale is from 0 to 500, and a 151 AQI is considered “unhealthy”), or where employers should reasonably anticipate that employees could be exposed to wildfire smoke.
Click here for the full GT Alert.
On June 27, 2019, New Jersey’s Appellate Division ruled that New Jersey’s Law Against Discrimination (NJLAD) can extend “in appropriate circumstances” to plaintiffs who reside or work outside of the state where New Jersey has the “most significant relationship” to the claims. Calabotta v. Phibro Animal Health Corp., et al.
In 2008, New Jersey-based Phibro Animal Health Corporation hired plaintiff David Calabotta to serve as vice president of marketing and technology deployment for Prince Agri Products Incorporated, a Phibro subsidiary located in Quincy, Illinois.
In June 2016, Phibro created a new position based at its headquarters in New Jersey for a senior vice president of marketing and product management. Plaintiff alleged that despite expressing interest in the new position, he was not interviewed because of his wife’s terminal breast cancer diagnosis. Plaintiff was terminated in August 2016, following allegations he acted inappropriately at a national conference.
Plaintiff filed a complaint in the Superior Court of New Jersey against Phibro, his supervisor, and the senior VP of human resources, who investigated the allegations and terminated his employment. Plaintiff alleged defendants discriminated against him in violation of NJLAD “on account of his association with a person with a disability” when (1) they refused to consider him for a promotion in New Jersey, and (2) they subsequently terminated his employment. The trial court originally dismissed plaintiff’s complaint, reasoning he had no viable cause of action under NJLAD as an Illinois resident who worked for the company’s subsidiary in Illinois.
Click here for the full GT Alert, which summarizes the Appellate Division’s decision.
There have been many significant developments in the first half of 2019 impacting private employers in New York and New Jersey. Federal, state, and local legislatures and agencies have been particularly busy in the employment arena, promulgating sweeping laws and regulations affecting a broad range of well-entrenched employment practices. For instance, New Jersey adopted prohibitions against non-disclosure provisions in settlement agreements resolving discrimination and harassment claims (with, as discussed in this GT Alert, New York expected to follow shortly), and New York enacted its Gender Expression Non-Discrimination Act.
So too have our courts been active, rendering decisions fleshing out some of these recent laws, as well as revisiting other, more familiar questions under longstanding principles. If you overlooked any of these developments, or need a quick and easy reference of what has occurred and what is on the horizon, we hope this topline recap helps.
Click here to read the full GT Alert.
On June 13, 2019, Nevada Governor Steve Sisolak signed SB 312 into law to require Nevada employers to provide paid leave to workers. Specifically, the bill requires that employees receive 0.01923 hours of paid leave for each hour worked. Under this formula, a worker who works 40 hours per week for 52 weeks will be entitled to approximately 40 hours of paid leave. Workers must receive the same rate of pay for the paid leave as paid for hours worked, and be paid at the same time they would have been paid had the hours been worked.
With passage of the bill, Nevada joins seven other states that have mandated paid time off: Arizona, California, Connecticut, Massachusetts, Oregon, Vermont, and Washington.
- Who will be required to provide paid time off to employees?
- What obligations are placed on employers?
- What rules may employers impose?
- What restrictions are imposed on employers?
- What obligations do employees have?
- How will the requirement be enforced?
- When does the requirement for paid leave go into effect?
Click here for the full GT Alert, which answers these questions.
Twelve attorneys from global law firm Greenberg Traurig, LLP were recognized by Human Resource Executive in a 2019 report researched by the Lawdragon organization. Human Resource Executive and Lawdragon, a networking site for lawyers and clients, conduct research to identify “the most powerful attorneys for employment law, benefits law, traditional labor and employment law, and immigration law.”
In 2019, Kate Kalmykov joins the “Nation’s 20 Most Powerful Employment Attorneys – Immigration.” In addition, Naomi G. Beer, Mark D. Kemple, and Todd D. Wozniak join the “Nation’s 100 Most Powerful Employment Attorneys.” Kalmykov and Wozniak were recognized on the list of the “Nation’s 40 Most Powerful Employment Attorneys – Up-and-Comers” in 2018.
To read the full release, click here.