Recently, the San Francisco Board of Supervisors passed amendments to the city’s 2014 Fair Chance Ordinance (FCO), which will expand upon the State’s “ban the box” initiative by further limiting an employer’s ability to obtain and use information about an applicant’s criminal history.
The amendments will go into effect on October 1, 2018 and will affect all employers with five or more employees nationwide that have at least one employee who works on average 8 or more hours per work in San Francisco. This expands on the existing ordinance which was limited to city-based employers with twenty or more employees nationwide.
Expansions to Existing Law
While the majority of the amendments are designed to bring the city’s outdated ordinance into alignment with the State’s new ban-the-box law, one amendment goes further and will prohibit employers from considering any convictions for crimes that have since been decriminalized regardless of when the conviction occurred. As an example of such decriminalized activity, the amendments specifically reference certain offenses for non-commercial use and cultivation of marijuana that were recently decriminalized under state law. Continue reading San Francisco Amends “Fair Chance Ordinance” to Expand On California’s Ban-the-Box Law
Maryland has joined the list of states to respond to the #MeToo movement with harsher laws relating to sexual harassment in the workplace. Effective October 1, 2018, Maryland’s Disclosing Sexual Harassment in the Workplace Act will place new restrictions on the terms employer’s may include in employment agreements. For certain employers, the new law will also mean additional workplace reporting requirements.
Maryland’s new law will prohibit employers from including in an employment agreement any provision which waives any procedural or substantive right to file a claim related to a future instance of sexual harassment. The law also prohibits such waivers relating to future instances of retaliation arising out of an employee’s reporting of sexual harassment. Additionally, employers may not take any adverse action against employees who refuse to enter into an agreement containing such waivers.
In addition to the above restrictions on employment agreements, the new law will require employers with 50 or more employees to submit a survey to the Maryland Commission on Civil Rights disclosing the following: Continue reading Maryland Passes New Sexual Harassment Disclosure Requirements
In an amendment to its 8-year old ban-the-box law, Massachusetts will further restrict employers’ ability to inquire about applicants’ criminal histories. The amendments will take effect October 13, 2018.
Massachusetts law currently prohibits employers from asking about an applicant’s criminal history on the initial application for employment (so called “ban-the-box”). Even after the initial written application, employers are prohibited from asking about the following types of criminal history:
- An arrest, detention, or disposition regarding any violation of law in which no conviction resulted;
- A first offense for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; and
- Any conviction of a misdemeanor where the date of conviction, or the completion of any period of incarceration resulting therefrom, occurred five or more years prior to the date of the application, unless such person has been convicted of any offense within the preceding five-year period.
Amendments to the Law Continue reading Massachusetts Enlarges the “Ban” in its Ban-the-Box Law
In a ruling sure to upset some employer’s current pay practices, the Ninth Circuit Court of Appeals ruled that “prior salary alone or in combination with other factors cannot justify a wage differential” between male and female employees. The ruling addressed pay differentials under the federal Equal Pay Act.
The Equal Pay Act
The Equal Pay Act prohibits employers from engaging in sex discriminating by paying an employee at a rate less than the rate at which the employer pays an employee of the opposite sex for equal work on jobs requiring equal skill, effort, and responsibility and which are performed under similar working conditions.
The Act permits pay differentials between male and female employees when done in accordance with one of the following:
- A seniority system;
- A merit system;
- A system which measures earnings by quantity or quality of production; or
- A differential based on any other factor other than sex.
This recent case addressed a pay differential under this last exception, the catchall provision. Continue reading Employers May Not Rely on Salary History for Current Pay Rate
As many employers in Iowa know, the state has one of the more detailed and complex laws when it comes to drug and alcohol testing. In fact, Iowa has a reputation for having the toughest drug and alcohol testing statute in the country with policy and training requirements, permissible types of testing, and written notice requirements for positive test results. However, effective July 1, 2018, Iowa will loosen the reins slightly to give employers more latitude when it comes to alcohol testing.
Iowa Drug and Alcohol Testing
Iowa’s drug and alcohol testing law permits employers to test for a wide-range of purposes including random and unannounced, reasonable suspicion, post-accident, and when an employee seeks to return after completion of rehabilitation. However, prior to conducting any testing, employers must adopt a comprehensive drug and alcohol testing program. This program includes: Continue reading Iowa “Relaxes” Drug and Alcohol Testing
On May 21, 2018, the U.S. Supreme Court handed employers a significant victory in ruling that employers may require employees to waive their rights to bring class and collective actions through mandatory arbitration agreements without violating the National Labor Relations Act. This ruling settles a previously uncertain area of the law.
The National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activity and prohibits any attempts to interfere with or inhibit those rights. Generally, protected concerned activity has been understood to include the right to strike, picket, and voice concerns or complaints about workplace terms and conditions. In recent years, certain courts have expanded the definition of protected activity to include an employee’s attempt to bring a class or collective action against the employer for alleged violations of the law. This interpretation was based on the idea that the employee, in bringing such claims, was representing other employees against the employer and thus was engaging in protected concerted activity.
Supreme Court Decision
In its recent decision in Epic Systems Corp. v. Lewis, the Supreme Court thoroughly rejected this interpretation. The Court held that the NLRA says nothing about how judges and arbitrators must try legal disputes, and thus it does not give employees any type of right within those forums, including the right to pursue class or collective actions. In addition, the Court explained that through the Federal Arbitration Act Congress made it clear that courts must enforce arbitration agreements “according to their terms-including terms providing for individualized proceedings.” Continue reading Big Win for Employers: Supreme Court Rules Arbitration Agreements Lawful Under Federal Law
In a recent twist in the cascade of state and municipal laws prohibiting employers from asking about an applicant’s salary history, a federal judge has ruled that Philadelphia’s salary history ban violates the First Amendment of the US Constitution by limiting employers’ free speech rights. This ruling may have a significant impact on other state and municipal laws that seek to similarly restrict what employers may ask applicants.
Following passage of Philadelphia’s ordinance prohibiting inquiries into applicant’s salary histories, the Chamber of Commerce for Greater Philadelphia filed a federal lawsuit challenging the constitutionality of the ordinance based on its limitation of employers’ First Amendment rights. The court agreed in part.
In partially ruling for the Chamber of Commerce, the court held that the ordinance is unconstitutional in its prohibition relating to employers asking applicants about their salary history because that prohibition implicates the First Amendment’s free speech clause. At the same time, the court held that the second part of the ordinance, which prohibits employers from relying on salary history information at any time in the employment process to determine an employee’s salary, is constitutional and enforceable.
Thus, the court’s ruling enables Philadelphia employers to ask about an applicant’s salary history but leaves in place strict limitations on how they may use that information. Continue reading Philadelphia May Set the Stage for Other Constitutional Challenges to Salary History Bans
Vermont has joined the trend among states of banning salary history inquiries by employers by passing its own ban. Effective July 1, 2018, Vermont employers will no longer be permitted to inquire about applicants’ salary history information.
Prohibited Acts and Inquiries
Under the new law, Vermont employers will be prohibited from:
- Inquiring about or seeking information about a prospective employee’s current or past compensation from the prospective employee or his or her current or former employer;
- Requiring that a prospective employee’s current or past compensation satisfy minimum or maximum criteria; or
- Determining whether to interview a prospective employee based on his or her current or past compensation.
Permitted Act and Inquiries
If an applicant voluntarily discloses information about his or her current or past compensation, employers may, after making an offer of employment with compensation to the applicant:
- Seek to confirm the applicant’s voluntarily disclosed salary history information; or
- Request that the applicant confirm the voluntarily disclosed information.
Employers may also: Continue reading Vermont Becomes Fifth State to Pass Salary History Ban
Effective immediately, South Carolina employers with 15 or more employees must provide additional accommodations to employees with “medical needs arising from pregnancy, childbirth, or related medical conditions.” These accommodations come through an amendment to the state’s Human Affairs Law and must be provided in addition to those already required under state and federal law.
Under the amended law, South Carolina employers must provide accommodations to employees with covered medical needs, including:
- Making existing facilities used by employees readily accessible provided the that employers are not be required to construct a permanent, dedicated space for expressing milk;
- Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations;
- Providing more frequent or longer break periods; providing more frequent bathroom breaks; providing a private place, other than a bathroom stall for the purpose of expressing milk; modifying food or drink policy; providing seating or allowing the employee to sit more frequently if the job requires the employee to stand; providing assistance with manual labor and limits on lifting;
- Temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified; providing job restructuring or light duty, if available; acquiring or modifying equipment or devices necessary for performing essential job functions; modifying work schedules.
Continue reading South Carolina Adds to Existing Pregnancy Accommodation Requirements
On May 22, 2018, Connecticut enacted its own version of the salary history ban, making it the most recent example of this recent legal trend. Similar laws were previously adopted in California, Delaware, Massachusetts, Oregon, and Vermont. Connecticut’s ban will take effect on January 1, 2019.
Existing Connecticut law protects employees but not applicants in relation to their wages. Currently, employers are prohibited from:
- Prohibiting an employee from inquiring about the wages of another employee.
- Prohibiting employees from voluntarily discussing their wages with other employees.
- Requiring employees to sign a waiver that denies them the right to voluntarily disclose the amount of their wages or the wages of another employee.
- Requiring employees to sign a waiver (or other document) that denies them their right to inquire about the wages of another employee.
- Discharging, disciplining, discriminating, retaliating or otherwise penalizing employees who disclose the amount of their wages to another employee.
- Discharging, disciplining, discriminating, retaliating or otherwise penalizing employees who inquire about the wages of another employee (neither the employee nor the employer is required to disclose the amount of wages paid to any employee).
Salary History Ban Continue reading Connecticut Becomes Sixth State to Pass Salary History Ban