Workforce Bulletin

As featured in #WorkforceWednesday®: This week, we’re underlining the importance of managing election-related tensions in the workplace.

Both political parties have called this the most consequential election in recent history, which means that this morning in your workplace, some employees are celebrating, and others might be feeling hurt, disappointed, or maybe even fearful. What can employers do to help?

Epstein Becker Green attorneys Susan Gross Sholinsky and Michael S. Ferrell outline proactive strategies employers can adopt to prevent potential workplace incidents and describe protections surrounding political speech, as governed by laws like the National Labor Relations Act.

California continues to be the birthplace of ideas that complicate employment laws. True to form, it is the first state to adopt the concept of intersectionality in its anti-discrimination statutes.

On September 27, 2024, Governor Newsom signed Senate Bill 1137 (SB 1137) into law. This legislation amends several provisions of existing California law to clarify that unlawful discriminatory practices may include “any combination” of protected characteristics or traits – not just a single one. 

Of particular importance to companies: SB 1137 thus modifies  the Unruh Civil Rights Act, which prohibits discrimination by business establishments, and California’s Fair Employment and Housing Act (FEHA), which prohibits harassment and discrimination in employment. The updates to these laws will take effect on January 1, 2025.

Lam v. University of Hawaii

While SB 1137 is the first statutory law of its kind, the concept of intersectional discrimination is not new. Thirty years ago, the United States Court of Appeals for the Ninth Circuit addressed this challenge. In Lam v. University of Hawaii, a woman of Vietnamese descent filed a lawsuit against the University of Hawaii Richardson School of Law, alleging that the law school violated Title VII of the Civil Rights Act of 1964 by discriminating against her on the bases of her race, sex, and national origin. Lam had applied but was twice rejected from the law school’s Pacific Asian Legal Studies Program.

Election Day is Tuesday, November 5. During this election season, employers may question whether the law requires them to allow employees time off to vote, often referred to as “voting leave”, and if so, whether such leave is paid. Perhaps just as urgently, employers may need to manage workplace political talk and potential consequences.

The short answer about voting leave is the same lawyers often give: it depends! Most states and many local jurisdictions have their own laws addressing voting leave and related rights. This article is not a comprehensive, state-by-state guide, and employers should check applicable laws in their jurisdictions when in doubt. Instead, this overview is a reminder of potential issues and best practices to ensure a safe and legally sound workplace in the days before and after Election Day.

Voting Leave

State and local laws on voting leave impose varying obligations on employers. Employers should review the applicable state laws and regulations of every jurisdiction in which they have employees. To highlight a few:

• California: if an employee doesn’t have sufficient time outside of working hours to vote, the employee may take off enough working time that, when added to the voting time available outside of working hours, will enable the employee to vote. Up to two hours of working time off must be without loss of pay. The time off can be at the start or end of the working shift. If the employee knows in advance that time off will be necessary to vote, the employee must give the employer at least two working days’ notice. Note that the law requires employers to post a notice to employees advising them of their rights regarding voting leave.

As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, our panelists connect the enchantment of Harry Potter with the intricacies of trade secrets and restrictive covenants:

Prepare to be spellbound this Halloween as we cast a magical twist on the realm of trade secrets and restrictive covenants! Whether you're a Gryffindor at heart or more of a Slytherin, there's something for every magical mind seeking to safeguard their organization’s trade secrets.

Epstein Becker Green attorneys A. Millie Warner, Jill K. Bigler, and Aime Dempsey team up with Kristen O’Connor—Senior Assistant General Counsel, Employment at Marsh & McLennan Companies—to wave their legal wands over topics such as Professor Snape’s secret potion book, Hermione’s clever jinxes, and much more.

Retail employers in New York State will have to face new requirements beginning on March 4, 2025, as a result of the recent enactment of the State’s Retail Worker Safety Act (“Act”). The Act will impose the State’s latest employment obligations on retail employers, mandating violence prevention training and precautionary workplace measures. Set to become effective about a year after California enacted similar legislation related to employee harassment and violence prevention in 2024, this is yet another state law that aims to ensure safer working environments for retail workers. As many retailers’ busiest season of the year approaches, they will also need to take time to prepare for compliance with the Act’s requirements.

On October 3, 2024, the United States District Court for the District of Columbia’s Opinion and Order in Mark C. Savignac and Julia Sheketoff v. Jones Day, et al., 19-cv-02443-RDM, addressed Title VII’s “participation clause,” in granting in part and denying in part, the law firm’s motion for summary judgment.

The court further denied plaintiff’s cross-motion for summary judgment. Plaintiffs, a married couple who were both formerly employed as attorneys (she resigned in 2018, he was terminated in 2019), alleged federal and state discrimination and retaliation claims based on their objections to Jones Day’s unequal parental leave policies. In the latter part of the opinion, the Court analyzed whether Savignac engaged in protected activity under the participation clause of Title VII of the Civil Rights Act of 1964 (“Title VII”).

In addition to prohibiting discrimination, Title VII’s provisions protect a covered individual from employer retaliation when the individual participates in an investigation or opposes covered unlawful conduct. These provisions—commonly referred to as the “participation clause” and “opposition clause”—are intended to encourage employees to report, and employers to address, discrimination in the workplace. 

As featured in #WorkforceWednesday®: This week, we’re examining the final mental health parity rules, a National Labor Relations Board (NLRB) memo on restrictive covenant limitations, and New York State’s recently enacted workplace violence prevention law.

On September 24, 2024, the U.S. Department of Labor (“DOL”), collaborating with the Partnership on Employment & Accessible Technology (“PEAT”), a non-governmental organization the DOL funds and supports, announced the publication of the “AI & Inclusive Hiring Framework,” (“the DOL’s Framework”). The DOL’s Framework, created in response to the Biden-Harris Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, helps employers create and maintain non-discriminatory artificial intelligence (“AI”) hiring procedures for job seekers with disabilities. (For more information on the Biden-Harris Executive Order, see our Workforce Bulletin.)

Establishing these procedures has become a top priority for employers as nearly 1 in 4 organizations have implemented AI tools in human resource departments, according to new research from SHRM.

AI-powered recruitment and selection tools can streamline the hiring process by identifying potential candidates or screening applicant resumes, but employers must ensure their AI hiring tools do not intentionally or unintentionally perpetuate discriminatory practices or create barriers for job seekers with disabilities. Employers may rely on the DOL’s Framework as a useful starting point when implementing AI hiring tools.  Employers that have already implemented such tools should review the DOL’s Framework to ensure their practices do not create unwanted liability.

As featured in #WorkforceWednesday®: This week, we’re examining how recent employer-initiated challenges to the National Labor Relations Board’s (NLRB’s) structure have arisen due to the agency’s broad interpretation of its enforcement authority, leading to significant legal obstacles.

The NLRB is facing significant legal challenges from employers after a series of controversial rulings. Could the NLRB’s structure be at risk?

Epstein Becker Green attorneys Stuart M. Gerson and Laura H. Schuman discuss how the NLRB’s broad interpretation of their enforcement authority under the National Labor Relations Act has invited legal challenges. Additionally, they examine how the U.S. Supreme Court’s Loper Bright decision is perceived to create a more favorable environment for contesting the NLRB’s authority.

We previously reported that the New Jersey Department of Labor and Workforce Development (“NJDOL”) issued proposed regulations to implement New Jersey’s Temporary Workers’ Bill of Rights (the “Act”), including its pay equity requirement. On September 16, 2024, the NJDOL adopted N.J.A.C. 12:72 (the “Regulations”) implementing sections 1 through 7, and 10 of the Act, pertaining to “workplace protections, as well as temporary help service firm and third-party client responsibilities.” The key provisions are summarized below.

Pay Equity Requirement

Significantly, the Regulations provide a formula for calculating the minimum hourly rate of pay for temporary workers, which under the Act is determined by “the average rate of pay and average cost of benefits” of comparator employees, i.e., employees of the third-party client who perform:

the same or substantially similar work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions for the third-party client at the time the temporary laborer is assigned to work at the third-party client.