The effective date of California’s Senate Bill 553 is fast approaching, and the law covers nearly every employer and every employment facility in California with the exception of healthcare facilities and other facilities governed by different legal standards, most remote workers, and businesses with fewer than 10 employees.
Whether you are based in California or operate a worksite in the state with more than 10 employees, compliance is mandatory. The requirements, set forth in SB 553, are detailed and complex, establishing rules for planning, logging, and record-keeping, as well as worker training, which will all be overseen and enforced by the California Occupational Safety and Health Act (“Cal/OSHA”).
Specifically, California employers must meet four broad categories of obligations that go into effect July 1, 2024, including:
The creation of a workplace violence prevention plan.
The creation of a workplace violence incident log.
Several deadlines are on the horizon for Chicago and Illinois employers. Businesses should be aware of what they need to do to comply, or they may face significant daily penalties.
Employers Must Conduct Required New Sexual Harassment and Bystander Intervention Trainings for All Employees by June 30, 2023. The City of Chicago amended its Human Rights Ordinance last year to require all employers with employees in Chicago to provide the following annual training by June 30, 2023 (and annually thereafter):
One hour of sexual harassment prevention training to all employees (with an additional hour of sexual harassment prevention training for all supervisors and managers, for a total of two hours); and
One hour of bystander intervention training to all employees.
Template sexual harassment and bystander intervention trainings and other materials are available on the City of Chicago website. Employers must keep written records of the trainings for the longer of five years or the duration of any claim, action, or pending investigation. Employers that do not comply with the training and record-keeping requirements may be fined significant penalties for each daythat the employer is not in compliance.
Illinois Adverse Judgments or Rulings Reports Are Due by July 1, 2023. By each July 1, every employer that had an adverse judgment or administrative ruling against it in the preceding year must disclose to the Illinois Department of Human Rights the following:
The total number of adverse judgments or administrative rulings during the preceding year;
Whether equitable relief was ordered; and
The number of adverse judgments or administrative rulings entered against the employer within specific categories outlined in Section 2-108(B) of the Illinois Human Rights Act.
An “adverse judgment or administrative ruling” means any final and non-appealable judgment that finds sexual harassment or unlawful discrimination with the ruling in the employee’s favor and against the employer. This includes reporting adverse rulings outside of Illinois jurisdiction. The disclosure report form may be found here: Form IDHR 2-108.
For more information, contact any member of Blank Rome’s Labor & Employment practice group.
On May 26, 2023, New York City Mayor Eric Adams signed a bill that will prohibit discrimination based on an applicant or employee’s actual or perceived height or weight. This bill amends the New York City Human Rights Law by specifically adding “height” and “weight” to its list of protected classes. These additions will become effective on November 22, 2023.
There are several exemptions, including where height or weight restrictions are:
Required by a federal, state, or local law or regulation;
Permitted by any regulation adopted by the City Commission on Human Rights that identifies certain jobs or job categories for which height or weight could prevent the person from performing the essential requirements of the job, and for which the Commission finds that no other reasonable alternative is available that would allow the person to perform the essential requirements of the job; or
Permitted by any regulation adopted by the Commission that identifies particular categories of jobs for which the use of height or weight as a criteria is reasonably necessary for the normal operations of the business.
Starting January 1, 2023, New York City employers that utilize artificial intelligence (“AI”) decision-making tools in their hiring practices will need to provide notice to applicants of the technology and conduct independent bias audits to ensure that these tools do not have a discriminatory impact on candidates. This new law, which is aimed at eliminating bias in automated employment decisions, is the first of its type in the United States.
The New York City Department of Consumer and Worker Protection (“DCWP”) has issued proposed regulations in connection with the law, and the DCWP will be holding a public forum to discuss the proposed regulations on October 24, 2022.
Employers and employment agencies should not wait until the regulations are finalized to develop a catalog of AI-driven tools they use for assisting in hiring and promotion decisions and working with vendors and technology stakeholders to develop the means for independent audits that are sufficiently linked to the jobs and job classes for which the organization anticipates hiring.
To read the full client alert, please visit our website.
Florida’s Individual Freedom Act (“IFA”), also referred to as the “Stop W.O.K.E. Act,” went into effect July 1, 2022, and, among other things, amended the state’s Civil Right Act of 1992 to make it unlawful for an employer to require its employees to attend mandatory trainings or instruction that “espouses or promotes” any of the following eight prohibited concepts:
That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin
Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin
An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin
An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion
An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin
Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
California is infamous for its hostility towards employers. On May 23, the California Supreme Court continued on its unwavering mission to solidify that well-earned reputation by issuing a 45-page decision in Naranjo et al. v. Spectrum Security Services, Inc., a case we have been closely monitoring at Blank Rome.
For context, the failure to pay wages in California triggers not only an award of those unpaid wages, but potentially steep and costly statutory and civil penalties as well, including so-called: (1) “waiting time penalties”—up to 30 days’ wages for former employees; and (2) “wage statement penalties” when the unpaid wages render the employee’s pay stub inaccurate. Wage statement penalties start at $50 for the first violation and rise to $100 for subsequent violations. When claims are brought on a classwide basis, these penalties can become astronomical, as they are all assessed on a per-employee, per-pay-period basis.
As previewed in our April 5, 2022, client alert (New York Employers, Take Note! Two New Laws Effective in May | Blank Rome LLP), New York City has rolled back to November 1, 2022, the effective date of its amendment to the New York City Human Rights Law (“NYCHRL”) that will require the City’s private employers to provide a minimum and maximum salary range for jobs when advertising employment opportunities.
The City delayed the effective date in order to give employers a six-month extension of time to come into compliance. The amendment will require employers that are advertising job openings for positions performed in New York City to include the salary range (both a minimum and maximum amount) being offered for the position in the advertisement.
New York businesses face not one, but two new laws which significantly impact employers and take effect next month. The first requires employers in New York City to provide salary ranges when advertising employment opportunities (effective May 15, 2022). The second mandates that New York employers provide prior notice and posting if they intend to monitor employee telephone, e-mail, or Internet usage (effective May 7, 2022). Read below for important summaries of the new laws and their impact on your business.
In a much-anticipated decision, the United States Supreme Court has blocked the Occupational Safety and Health Administration’s (“OSHA”) “vaccinate or test” Emergency Temporary Standard (“ETS”). The Court’s January 13, 2022, decision means that the ETS is stayed pending a hearing on the merits of the challenges to its validity. However, in practical terms, it is likely a death-knell for the ETS, which was set to expire in May 2022.
The Court’s per curiam opinion, written on behalf of the six conservative-leaning justices, held that the ETS exceeded OSHA’s statutory power because it sought to broadly regulate “public health” and was not directed specifically at workplace safety. The Court explained: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”
In a concurring opinion joined by Justices Thomas and Alito, Justice Gorsuch elaborated that the “major questions doctrine” requires Congress to delegate clearly and specifically to an agency the authority to mandate Covid-19 vaccination or testing. Absent a clear and specific delegation, the Constitution reserves that power to “the states and Congress, not OSHA.”
The Court’s three liberal-leaning justices dissented. The dissenting opinion, co-authored by Justices Breyer, Sotomayor, and Kagan, asserted that the ETS fell squarely within OSHA’s emergency power because it was necessary to “protect employees” from a “grave danger” to workplace safety. The dissent argued further that, even if the merits of the ETS were reasonably in dispute, a stay would still be inappropriate because the “public interest” and “balance of harms” supported allowing the ETS to remain in effect. In conclusion, the dissent accused the majority’s decision of “undercut[ting] the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”
A final note: While fatal to the ETS, the Court’s decision likely is not the final word on broad workplace safety responses to the Covid-19 pandemic. Now that OSHA has been blocked from taking action, it is reasonable to expect that some state workplace safety agencies will become more active in adopting their own measures aimed at Covid-19 safety in the workplace. Stay tuned for more on the development of any new state-level rules and also on what happens with the ETS as it heads back to the United States Court of Appeals for the Sixth Circuit.
On Friday, January 7, 2022, the United States Supreme Court held oral argument on the Occupational Safety and Health Administration’s (“OSHA”) much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). Absent action by the Court, compliance with the ETS is set to commence today, Monday, January 10, though OSHA has said it will not issue citations to employers who have made a good faith attempt to comply with the testing requirements. The Court is expected to issue a decision promptly.
The argument was originally scheduled for one hour but ran nearly two hours due to extensive questioning by the justices. The Court’s six conservative-leaning justices all appeared skeptical of the enforceability of the ETS, but their questions suggested a divide in the legal basis for their views. Justices Thomas, Alito, and Gorsuch’s questioning suggested that they viewed the mandate as clearly outside OSHA’s authority to regulate workplace safety. Justices Roberts, Kavanaugh, and Barrett suggested a narrower view in their questioning, indicating that they may see OSHA as having the authority to impose a narrower emergency mandate targeted at specific fields or industries that present unique safety risks. Justices Roberts, Kavanaugh, and Barrett also suggested that only Congress has the power to impose a broad federal vaccine mandate (like the current ETS) and that in the absence of congressional action, the power to impose an economy-wide mandate was reserved to the states. The Court’s liberal-leaning justices—Justices Breyer, Sotomayor, and Kagan—all expressed strong support for the ETS in their questioning.
During questioning, Justice Alito asked the Solicitor General (representing the federal government) if there was any objection to a brief administrative stay of the January 10 compliance deadline pending the Court’s decision on the appeal. The Solicitor General largely conceded that a brief stay would be appropriate.
We will post a prompt update when the Court issues a decision on the ETS appeal. In the meantime, covered employers should continue to proceed with good faith preparations to implement the requirements of the ETS.
