With the new year comes newly-enacted laws in California. Governor Gavin Newsom signed several new laws during the last legislative session, which went into effect January 1, 2020. Is your company ready for these changes? Continue Reading New Wave of California Laws Enter 2020
On December 17, 2019, the Fair Chance to Compete for Jobs Act of 2019 (the “Fair Chance Act”) was signed by the President as an amendment to the National Defense Authorization Act. This federal “ban-the-box” law proscribes federal agencies and contractors from asking about a job applicant’s criminal history until after they make a conditional offer of employment. For federal contractors, the law only extends to positions related to a federal contract. The Fair Chance Act will go into effect on December 17, 2021. The Office of Personnel Management and General Services Administration will issue implementing regulations before the law goes into effect.
Restrictive covenants and non-compete agreements are increasingly under attack, this time by the Federal Trade Commission (FTC). Companies rely on these restrictions to protect investment in intellectual property, technology and employees. On January 9, the FTC suggested that employee freedom of mobility trumps all of these legitimate business reasons companies use restrictive covenants and non-compete agreements. The FTC has increased its attention to restrictive covenants, and non-compete agreements in particular, under the theory that these types of provisions unfairly limit employee mobility and have an adverse impact on competition among employers. Three of the five FTC commissioners oppose the current unregulated use of non-compete agreements and advocate the FTC taking steps to curtail them.
On November 22, 2019, the federal Consumer Financial Protection Bureau (CFPB) filed a complaint in the U.S. District Court for the Southern District of New York against Sterling Infosystems, Inc. (“Sterling”) regarding allegations that it violated the Fair Credit Reporting Act (FCRA) in providing criminal background checks to employers. Sterling is a “consumer reporting agency” as defined by the FCRA, which provides background check results to employers when requested. The CFPB is an independent federal agency tasked with regulating and enforcing a host of consumer protection and financial protection statutes, including the FCRA.
California’s law against arbitration remains in doubt after Eastern District Judge Kimberly Mueller extended the TRO issued on December 31, prohibiting the state of California from enforcing the law against agreements covered by the Federal Arbitration Act. That law, known as AB 51, seeks to prohibit companies in California from requiring arbitration agreements as a condition of employment.
In the last days of 2019, New Jersey Governor Phil Murphy signed a law that bans employers from discriminating against employees based on hairstyles that are associated with race. In doing so, New Jersey joined New York and California—both of which enacted similar legislation earlier in 2019—in prohibiting hair discrimination in the workplace.
The Department of Labor issued two opinion letters on Tuesday in response to specific inquiries that may nonetheless provide some clarity for employers in general.
The first letter was in response to an inquiry from an employer that offers its employees a non-discretionary lump sum bonus of $3,000 (in addition to their regular hourly rate) for completing a 10-week training program. During the training program, the employees may work more than 40 hours in a given week and the employer requested an opinion from the DOL on the proper method for calculating overtime pay. In response, the DOL stated that the $3,000 bonus must be included in the regular rate of pay (for purposes of calculating overtime) “as it is an inducement for employees to complete the ten-week training period.” The DOL then explained that the bonus should be divided into ten $300 increments to be added to the employees’ pay for each week of the training program for purpose of making the overtime calculation.
Could the onslaught of anticipated accessibility litigation surrounding Braille Gift Cards in 2020 be limited by a strict construction of the ADA Title III standing requirement? Maybe so.
The cottage industry of accessibility litigation in New York was recently dealt a blow when the Eastern District of New York dismissed a serial plaintiff’s class action accessibility complaint by strictly construing the standing requirement and finding that the court lacked subject matter jurisdiction.
The California Department of Fair Employment and Housing (“DFEH”) recently updated its Sexual Harassment Prevention Training FAQ guidance to address some of the questions surrounding SB 1343, which requires employers with five or more employees to provide classroom or “other interactive training” for all California employees (not just supervisors) every two years. SB 1343 was initially set to go into effect on January 1, 2020. But in 2019, Governor Newsom signed two amendments to SB 1343 that push the effective date out to January 1, 2021. The deadline to comply with SB 1343 does not change the obligation of an employer with 50 or more employees to train new supervisory employees within six months of their promotion or hire.
New York joins a handful of other states when its broad prohibition on employer inquiries into applicants’ prior wage or salary information takes place today, January 6, 2020. As detailed in our previous alert on this issue, New York previously had expansive pay equity laws in effect for public employers, but the new law expands the prohibition to private employers throughout the state.