Louisiana’s nondiscrimination law protecting “pregnancy, childbirth and related medical conditions” in employment (La. R.S. 23:341–42) was recently amended primarily by including an express reasonable accommodation requirement and adding a definition section providing reasonable accommodation examples, La. R.S. 23:341.1. The pregnancy nondiscrimination statutes are part of the larger body of laws making up the Louisiana Employment Discrimination Law at La. R.S. 23:301, et seq.
In November 2020, the Colorado Department of Labor and Employment (CDLE) adopted Colorado Overtime and Minimum Pay Standards Order (COMPS) #37, which went into effect on January 1, 2021. COMPS #37, like its predecessor orders, outlined the requirements for employees to qualify for exemption from Colorado’s overtime and minimum wage requirements. Among other things, COMPS #37 clarified a point that employers had long struggled with: Colorado’s requirement that an employee “directly serve” an “executive” to qualify for the administrative exemption.
On July 21, 2021, the City of Pasadena health officer issued an order titled, “Order for Wearing of Face Masks in Public Settings.” As did the Los Angeles County Department of Public Health’s (LACDPH) health order of the previous week, the City of Pasadena’s health order requires all individuals “regardless of vaccination status” to wear face coverings in “all indoor public settings, venues, gatherings, and businesses.”
Employers covered by the Colorado Equal Pay for Equal Work Act, Part 2 (EPEWA) will now have to post wage and benefit information for all covered promotional opportunities and job openings (including remote jobs that can be performed anywhere), unless that work is specifically tied to a non-Colorado worksite. In a reversal of its prior interpretation, the Colorado Department of Labor and Employment (CDLE) issued a revised Interpretative Notice & Formal Opinion (INFO) #9 on July 21, 2021—six months after the law went into effect on January 1, 2021. The revised INFO #9 contains several critical changes with regard to the CDLE’s interpretation of the EPEWA that will affect virtually all employers with at least one employee in Colorado.
Texas courts generally look to federal courts’ interpretation of federal anti-discrimination laws to assist in interpreting the anti-discrimination provisions of the Texas Commission on Human Rights Act (TCHRA). However, the provisions of the TCHRA do not always exactly mirror the language of parallel federal anti-discrimination laws. The Texas Supreme Court recently examined such differences in interpreting the scope of the anti-retaliation provisions of the TCHRA.
On Friday, July 16, 2021, the Los Angeles County Department of Public Health (LACDPH) issued a health order requiring all individuals regardless of vaccination status to wear face coverings in “[a]ll indoor public settings, venues, gatherings, and businesses.” The order’s list of locations in which all individuals must wear face coverings includes “offices, retail, restaurants, theaters, family entertainment centers, meetings, and state and local government offices serving the public.”
On July 8, 2021, the Oregon Occupational Safety and Health Division (Oregon OSHA) adopted temporary rules to bolster worker protections from the hazards of high and extreme heat, including requirements to provide shade, drinking water, cool-down breaks, an effective emergency medical plan, and training to all employees. Oregon OSHA adopted the Temporary Rules to Address Employee Exposure to High Ambient Temperatures on an emergency basis in response to direction from Oregon Governor Kate Brown, following a record-breaking heat wave that hit the Pacific Northwest in late June.
On July 15, 2021, the California Supreme Court issued a decision that will increase dramatically California employers’ potential liability for missed meal, rest, and recovery breaks. In Ferra v. Loews Hollywood Hotel, LLC, the court unanimously held that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” instead of their base hourly rate, as many employers were doing.
On July 9, 2021, a federal district court in Nashville, Tennessee, granted a preliminary injunction, halting enforcement of a new Tennessee law on bathroom signage. That law mandates that businesses post specific signs next to their public bathrooms, if they allow people to use the bathroom that conforms with their gender identity.
On June 17, 2021, the U.S. District Court for the District of Oregon issued an opinion and order in Munger v. Cascade Steel Rolling Mills, Inc., addressing an employee’s claims under the Family and Medical Leave Act (FMLA) and an analogous state law after the employee’s separation from employment due to excessive unexcused absences. The principal issue before the court was whether the employee was entitled to FMLA leave when the employee had failed to follow his employer’s usual and customary notice requirements for requesting FMLA leave.
New Jersey Governor Phil Murphy signed legislation (A5820/S3866) and Executive Order (EO) No. 244 on June 4, 2021, ending the COVID-19 Public Health Emergency (but not the overall state of emergency) first declared on March 9, 2020, in EO 103.
On May 5, 2021, New York State Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which “mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic.”
In May 2019, the Michigan Supreme Court issued rules that when implemented generally would prohibit Michigan courts from releasing personal identifying information (PII), such as birthdates, on court records. The rules were set to go into effect on July 1, 2021. Because consumer reporting agencies (CRAs) use PII to confirm the identities of the subjects of records and to comply with verification standards set forth in the Fair Credit Reporting Act (FCRA), CRAs would have been affected by the restrictions on access to court files, potentially impacting the timely and accurate release of background check information in Michigan.
On June 10, 2021, the First Circuit Court of Appeals upheld the dismissal of a plaintiff’s lawsuit alleging, among other things, failure to pay wages under the Massachusetts Wage Act. In Rose v. RTN Federal Credit Union, the First Circuit held that the Labor Management Relations Act (LMRA) preempted the plaintiff’s wage claims because she was a member of a union and because her employer, RTN Federal Credit Union, had an existing collective bargaining agreement (CBA) with the union that governed her wages and overtime pay.
Effective June 30, 2021, Oregon Governor Kate Brown, the Oregon Health Authority (OHA), and the Oregon Occupational Safety and Health Division (Oregon OSHA) lifted most statewide mask and physical distancing restrictions related to COVID-19, with limited exceptions. Mask requirements remain in place in some specialized settings, including healthcare, emergency medical services, public transit, transportation hubs, and correctional facilities. In addition, businesses may continue to require individuals to wear masks, face coverings, or face shields, and physically distance regardless of vaccination status. Individuals may continue to wear masks, face coverings, or face shields, even when not required, if they choose to do so.
Arbitration agreements are intended to expedite the legal process while minimizing fees and costs. In reality, former employees and their counsel often resist submitting their employment claims to arbitration, resulting in protracted and expensive litigation before trial and appellate courts on the issue of whether there is an enforceable arbitration agreement. This year, the Supreme Court of Texas issued two key decisions that may provide employers with stronger legal grounds for enforcing their arbitration agreements.
Effective September 1, 2021, any employer that employs “one or more employees” or that “acts directly in the interests of an employer in relation to an employee” will be considered an employer under Texas law and subject to a heightened level of scrutiny for sexual harassment claims under Texas law. The new law is a significant change from the current standard, which shields employers with fewer than 15 employees from liability regarding sexual harassment claims.
Colorado’s Equal Pay for Equal Work Act went into effect on January 1, 2021. The act creates significant compliance burdens for employers with even one employee in Colorado. In fact, the act is the only law in the United States to require employers to (1) post compensation and benefits information with each job posting for Colorado jobs and (2) internally post promotional opportunities to current Colorado employees on the same day and sufficiently in advance of promotion decisions.
On June 14, 2021, the Colorado Supreme Court provided an answer to the long-standing question of whether “use-it-or-lose-it” vacation policies are permissible under the Colorado Wage Claim Act (CWCA). In the case of Nieto v. Clark’s Market, No. 19SC553, the Colorado Supreme Court held that an employer may not require an employee to forfeit vacation pay upon the termination of the employment relationship, and any agreement purporting to do so is void.
On June 22, 2021, the Michigan Occupational Safety and Health Administration (MIOSHA) announced important changes to its emergency COVID-19 rules, “Emergency Rules Coronavirus Disease 2019 (COVID-19).”
On June 15, 2021, Governor Kate Brown signed into law Senate Bill (SB) 483, which amends the Oregon Safe Employment Act to increase whistleblower protections for workplace safety complaints.
The Ninth Circuit Court of Appeals recently took a fresh look at the test for discrimination under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), issuing a decision that could signal a major shift in the way Mine Safety and Health Administration (MSHA) discrimination cases are litigated.
On April 1, 2021, Arizona Governor Doug Ducey signed into law House Bill (H.B.) 2067, which amends Arizona Revised Statute (A.R.S.) Section 13-905 to allow the courts to issue an order for a “Certificate of Second Chance” for individuals “whose judgment of guilt is set aside” after a criminal conviction. H.B. 2067 allows individuals who receive a Certificate of Second Chance the opportunity to apply for and obtain occupational licenses in Arizona, and provides some additional protections to employers, among other things.
On June 15, 2021, Governor Tom Wolf’s administration certified the results of the May 2021 municipal primary election, and thereby formalized the approval of an amendment to the Constitution of Pennsylvania giving lawmakers the broad new power to extend or end disaster emergency declarations. Because the Philadelphia Public Health Emergency Leave law was set to “expire upon the expiration of the Proclamation of Disaster Emergency of the Governor of Pennsylvania related to the COVID-19 pandemic,” and the legislature voted on June 10, 2021, to end the disaster emergency declaration, it is now safe to say that the Philadelphia Public Health Emergency Leave law is no longer in effect.
On June 17, 2021, at the end of yet another chaotic day in administrative rulemaking, California’s new COVID-19 Emergency Temporary Standards (ETS) finally became effective. The ETS bring substantial changes to the COVID-19 regulatory requirements with which employers have struggled since California’s Division of Occupational Safety and Health (Cal/OSHA) initial ETS took effect almost 7 months ago, on November 30, 2020.
On June 11, 2021, Oregon Governor Kate Brown signed into law House Bill 2935, also known as the CROWN Act (Creating a Respectful and Open World for Natural Hair), joining several other states in explicitly prohibiting employers and public schools from discriminating against individuals based on physical characteristics historically associated with race, including hair texture and protective hairstyles.
On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights Act (NY HERO Act), which mandates workplace health and safety protections from any airborne infectious disease that the commissioner of health has designated as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” On June 11, 2021, Governor Cuomo signed legislation to amend the NY HERO Act. The amendments extend the effective date of section 1 of the act, pertaining to the creation and adoption of airborne infectious disease plans. Pursuant to the amendment, section 1 will take effect on July 5, 2021. Section 2, which pertains to the establishment of workplace safety committees, will take effect on November 1, 2021.
On June 15, 2021, Missouri Governor Mike Parson signed House Bill 271 prohibiting any county, city, town, or village government receiving public funds from requiring COVID-19 vaccination documents (commonly known as “vaccine passports”) from citizens. In addition, according to the new law, Missouri citizen must be allowed access to any building, transportation system, or service without showing proof they have received the vaccine.
On June 8, 2021, Governor Kate Brown signed into law House Bill (HB) 2474, amending the Oregon Family Leave Act (OFLA) to update and expand the law’s eligibility and leave provisions. The amendments give eligibility to take leave to employees reemployed after a separation or returning after a temporary work cessation within 180 days, expand eligibility and leave entitlements during public health emergencies, and remove gendered language.
On May 28, 2021, the Ninth Circuit Court of Appeals issued a significant ruling in Magadia v. Wal-Mart Associates, Inc., on both California’s wage statement laws and standing to pursue claims under the Private Attorneys General Act of 2004 (PAGA) in federal court.