As featured in #WorkforceWednesday: This week, we saw a landmark employment law decision and received clarifications on return-to-work issues involving older workers.
New Mexico Prohibits Non-Disclosure Provisions in Settlement Agreements Involving Harassment and Discrimination Claims
On March 4, 2020, New Mexico Governor Michelle Lujan Grisham signed into law House Bill 21 (“Law”), limiting the use of non-disclosure agreements (“NDA”) in settlements of sexual misconduct claims.
The Law prohibits employers from requiring, as a condition of employment, that an employee agree to an NDA in a settlement agreement relating to
Virginia Becomes First Southern State to Ban Race Discrimination Based on Hair Texture, Type, and Styles
First of Many Anticipated Employment Changes in Virginia, Including Expanded Coverage and Remedies for the Virginia Human Right Act and Minimum Wage Increases
On March 4, 2020, Virginia Governor Ralph Northam signed into law House Bill 1514, which amends the Virginia Human Rights Act (“VHRA”) to prohibit discrimination, “because of or on the basis
NYCCHR Issues Guidance on Discrimination Based on Immigration Status and National Origin
The New York City Commission on Human Rights (“the Commission”) published a legal enforcement guidance (“Guidance”) clarifying its standards with respect to discrimination based on actual or perceived immigration status and national origin. The Guidance applies to employers, housing providers, and providers of public accommodations.
As the Guidance explains, “[d]iscrimination based on immigration status often
Are Your AI Selection Tools Validated? OFCCP Provides Guidance for Validation of AI-Based Algorithms
We have long counseled employers using or contemplating using artificial intelligence (“AI”) algorithms in their employee selection processes to validate the AI-based selection procedure using an appropriate validation strategy approved by the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”). Our advice has been primarily based on minimizing legal risk and complying with best practices.
Southern District of New York Rules Federal Law Preempts New York State Law Banning Arbitration of Sexual Harassment Claims
Many retail employers require their employees to agree to arbitrate employment-related disputes as a condition of employment. The United States Supreme Court has repeatedly emphasized that workplace arbitration agreements are enforceable according to their terms, and state law that restricts such enforcement is preempted by the Federal Arbitration Act (“FAA”). Notwithstanding those pronouncements, states, such as New York and New Jersey, have crafted legislation designed to nullify an employee’s agreement to arbitrate certain employment-related claims.
In response to the #MeToo movement, New York and New Jersey have enacted legislation banning workplace arbitration agreements covering sexual harassment and discrimination claims. On April 12, 2018, New York State, as part of its 2018-2019 budget, amended § 7515 of the New York Civil Practice Law and Rules (“CPLR”) to prohibit employers with four or more employees from incorporating mandatory, pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of sexual harassment. Additionally, any such clause in a contract entered into after the effective date of the law would be rendered null and void.
On June 19, 2019, the New York legislature passed a bill (which, as of the date of this post, has yet to be signed into law) that makes sweeping changes to New York’s harassment and discrimination laws. Among other things, the bill again amends § 7515 of the CPLR to ban mandatory pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of workplace discrimination generally, not just sexual harassment claims and renders any such clause null and void.
On March 18, 2019, New Jersey Governor Murphy signed legislation that declares unenforceable any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” N.J.S.A. 10:5-12.7(1)(a). The law further provides that “[n]o right or remedy under the [Law Against Discrimination], or any other statute or case law shall be prospectively waived.” N.J.S.A. 10:5-12.7(1)(b). Both provisions can be construed to prohibit the waiver of a right to a jury trial as required by an arbitration agreement.
Many observers have questioned whether these laws restricting arbitration would be preempted by the FAA. A recent decision in the Southern District of New York, Mahmoud Latif v. Morgan Stanley & Co. LLC, No. 18cv11528 (DLC), 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019), confirms that state laws targeting enforcement of arbitration agreements are vulnerable to attack on FAA preemption grounds.
As discussed below, in Latif, the court held that New York’s ban on the arbitration of sexual harassment claims was unenforceable as preempted by the FAA. The court also stated, in a footnote, that the as yet unsigned June 19, 2019 New York legislation would be preempted by the FAA for the same reasons. Latif suggests that employers covered by the FAA can be more confident that their agreements seeking to arbitrate employment-related claims will be enforceable.
The Limits of Latif: Enforcing Mandatory Arbitration Clauses as to Harassment and Discrimination Claims Litigated in New York State Court
On June 19, 2019, the New York State Senate and Assembly passed legislation that would, if signed into law, broaden the scope of last year’s ban on clauses requiring employees to arbitrate sexual harassment claims so as to prohibit such clauses with respect to all types of discrimination claims. As reported on this blog,
NYC Commission on Human Rights Publishes New Guidance On Rights to Wear Hair
Our colleague Laura A. Stutz at Epstein Becker Green has a post on the Health Employment and Labor Blog that will be of interest to our readers in the retail industry: “Race Discrimination on the Basis of Hair Is Illegal in NYC.”
Following is an excerpt:
The New York City Commission on Human
NYC Commission on Human Rights Adopts Rules Establishing Broad Interpretation of Laws Prohibiting Gender Discrimination
The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections
NYC Commission on Human Rights Issues Guidance on Employers’ Obligations Under the City’s Disability Discrimination Laws
The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New