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.
President Biden is expected to soon sign into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”), which was recently passed by both houses of Congress. President Biden has long supported measures to limit mandatory arbitration clauses in general and specifically endorsed the Act, which received bipartisan support.
The Act will amend the Federal Arbitration Act to limit every employer’s ability to mandate predispute arbitration of an employee’s claims of sexual harassment or sexual assault. The salient language provides:
Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.
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.
New York City Council passed legislation on December 15, 2021, that would require employers in NYC (who have at least four employees) to include the minimum and maximum salary range for a position in any posting/advertisement for a job, promotion, or transfer opportunity. The bill will go into effect 120 days after it becomes law, unless the new mayor, Eric Adams, vetoes it by January 14, 2022.
The bill makes it a discriminatory practice under the NYC Human Rights Law (“NYCHRL”) to fail to include such salary information in a posting/advertisement. As set forth in the text of the bill:
It shall be an unlawful discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement. In stating the minimum and maximum salary for a position, the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.
The bill gives the NYC Commission on Human Rights the power to issue rules to implement (and hopefully further clarify) the new law. Among the issues that need clarity are the definition of “salary” and whether the requirement applies to all jobs advertised in New York City or only for postings for jobs physically located in NYC. While the “summary” of the bill on the NYC City Council website (here) references it applying to “any position located within New York City,” NYC guidance has in the past expanded on the interpretation of the law.
New York City has issued the much-awaited guidance on its private-sector vaccine mandate. The mandate, which is scheduled to take effect on December 27, 2021, will apply to roughly 184,000 businesses in the City. There are several key takeaways from the guidance and accompanying FAQs.
Which Businesses Are Covered?
Any business that maintains or operates a workplace in New York City is covered. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.
What Must Employers Do to Comply?
Subject to the accommodation process described below, by December 27, 2021, employers must collect acceptable proof of at least one dose of COVID-19 vaccination from all individuals who perform services at New York City workplaces operated by the employer. This includes on-site independent contractors and nonresidents who work at New York City workplaces. (Workers who show proof of a first shot of a two-shot vaccine need to get their second dose within 45 days.)
The forms of acceptable proof have not changed. They include: a CDC COVID-19 vaccination record card or other official immunization record, New York City COVID Safe App showing a vaccination record, a New York State Excelsior Pass/Excelsior Pass Plus, or a CLEAR Health Pass. Accordingly, employers do not need to collect additional information from employees who have already provided proof of vaccination.
Outgoing New York City Mayor Bill de Blasio announced the country’s first vaccine mandate to apply to all private-sector workers. The mandate, which is scheduled to take effect on December 27, 2021, would apply to roughly 184,000 businesses in the City.
Acceptable proof of vaccination will include a CDC-issued vaccination card, the New York State Excelsior Pass, the Clear Health Pass, and the NYC COVID Safe App.
The City plans to issue enforcement guidance on December 15, 2021. The guidance is expected to include provisions for reasonable accommodations for religious and medical exemption requests. The announcement also includes a pledge of additional resources to support small businesses with implementation, though what will qualify as a “small business” or what those resources will be remains to be seen.
The Occupational Safety and Health Administration (“OSHA”) released this morning the much-awaited text of its emergency temporary rule regarding mandatory workplace vaccination and testing for the COVID-19 virus. The rule is expected to be published in the Federal Register tomorrow, November 5, 2021, and will be effective upon publication. The emergency rule will be in effect for an initial period of six months but may be extended by formal rulemaking.
The following FAQ addresses key questions and issues relating to the OSHA rule and its requirements:
Who is covered by the OSHA rule?
The OSHA rule applies to employers with 100 or more employees company-wide. The threshold is fluid and an employer will be covered by the rule if it has 100 or more employees at any time while the rule is in effect. An employer cannot, for example, look only to its headcount on the initial effective date of the rule. Once an employer is covered, it will remain covered for as long as the rule is in effect, even if its headcount falls below 100 employees.