New York City and California Take Aim at Hairstyle-Based Discrimination (US)

Both New York City and California have recently taken steps to ban hairstyle-based discrimination.  On Monday, April 22, 2019, the California State Senate passed the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), which seeks to amend California’s anti-discrimination statute, the California Fair Housing and Employment Act (“FEHA”).   The CROWN Act, if passed by the State Assembly, would modify FEHA’s definition of “race” to expressly include “traits historically associated with one’s race, such as hair texture and protective hairstyles.”  Protective hairstyles are those that allow the wearer to avoid regular and harmful hair treatment, such as hair relaxers, and include cornrows, braids, and locks.

Earlier this year, in February 2019, the New York City Human Rights Commission (“HRC”) issued a guidance memorandum clarifying that the City’s anti-discrimination law already prohibits hairstyle-based discrimination.  The guidance memorandum states that the City’s anti-discrimination law protects people’s right to maintain “natural hair, treated or untreated … such as locks, cornrows, twists, braids, Bantu knots, fades, Afros, and the right to keep hair in an uncut or untrimmed state.” Continue Reading

New Advertising Standards guidance for employment and agency roles (UK)

Everyone knows that carelessly-phrased job advertisements can come back to bite you, usually through an unsuccessful candidate who is disappointed because he didn’t get the job, but sometimes also from the successful applicant who is disappointed because he did, and it is not what he thought it was.

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Federal Court Confirms September 30, 2019 Deadline for Employers to Submit EEO-1 Pay Data (US)

Piggy bankAs we previously reported here, on April 3, 2019, the White House Office of Management and Budget (“OMB”) filed a brief with the U.S. District Court for the District of Columbia proposing a September 30, 2019 deadline for the EEOC to complete collection of the required 2018 EEO-1 pay data forms. The brief was filed in response to a March 4, 2019 court order lifting a 2017 stay of pay data collection, which had been implemented to allow for further review of the burdens associated with pay data collection.

On April 25, 2019, in a ruling from the bench, a federal judge approved the September 30, 2019 deadline.  This means that employers with 100 or more employees (and federal contractors with 50 or more employees) will be required to report their employees’ 2018 W-2 compensation information and hours worked by September 30, 2019.  The goal of the collection is to reduce pay gaps based on sex, race, and ethnicity.  Remember, the deadline to submit all other EEO-1 data, such as race and gender information, remains May 31, 2019.

US Supreme Court Rules That Agreement to Class-Based Arbitration Procedures Must Be Explicit  

Supreme Court BuildingThe Court’s ruling in Lamps Plus, Inc., et al. v. Varela is the latest in the Court’s ongoing pro-employer, pro-arbitration jurisprudence

As we first reported here, the United States Supreme Court’s docket this term includes three significant cases interpreting various aspects of the Federal Arbitration Act (“FAA”).  Earlier this year, the Court ruled in the first of those cases, Henry Schein, et al. v. Archer & White Sales, Inc. (see our discussion here), holding that the FAA does not contain a “wholly groundless” exception and that courts cannot disregard a provision in an arbitration agreement delegating authority to the arbitrator.  In the second case, New Prime Inc. v. Oliveira (see our discussion here), the Court held that the FAA’s exemption for interstate transportation workers applies to all such workers, regardless of their classification as an employee or independent contractor.

Unlike these first two FAA cases, in which the Court ruled unanimously, the third case, Lamps Plus, Inc., et al. v. Varela, split down the Court’s ideological lines.  The case involved a question left open following the Court’s 2010 decision in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., in which the Court held that because arbitration under the FAA is strictly a matter of consent, a party cannot be compelled to arbitrate on a class-action basis if the parties’ agreement to arbitrate is silent on the issue of class arbitration.  In Lamps Plus, the issue before the Court was whether an agreement that is not silent but instead is ambiguous on the issue of class arbitration can be construed by a court to permit class arbitration.  Continue Reading

US Supreme Court Agrees to Decide Whether Title VII Prohibits LGBT Discrimination

Supreme Court BuildingAfter considering the petitions at eleven separate private conferences, on April 22, 2019, the U.S. Supreme Court granted certiorari in three cases involving the extent of protection provided by Title VII of the Civil Rights Act of 1964 – if any – against employment-based discrimination on the basis of sexual orientation and gender identity.  As we previously reported here, this issue has been watched closely by the nation, with multiple federal courts, government agencies, and employers reaching differing conclusions.  The Court consolidated the two sexual orientation cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, and allocated a total of one hour for oral argument for both cases.  In the gender identity case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., the Court limited its consideration to only the question of whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

The Court will hear argument in these cases next term, which means that it’s possible that a decision may not issue until as late as June 2020.  We will continue to update you with ongoing developments in these cases.

State Law Round-Up: Minimum Wage Hikes (MD, NM, CA); Kentucky Pregnant Workers Act; New Jersey Employee Rights; New York Voting Leave; Salary History Bans (OH, NM) (US)

Minimum Wage Updates

On March 28, 2019, Maryland’s legislators voted to raise the state’s minimum wage to $15.00 per hour by January 1, 2025 for employers with 15 or more employees and July 1, 2026 for employers with 14 or fewer employees. Continue Reading

USCIS has drawn the H-1B lucky numbers, but winners may have to hold off on celebrating (US)

On April 11th, USCIS announced that its computer-generated random selection process was completed. USCIS drew the numbers of the lucky H-1B petitions that made the cut under the congressionally-mandated regular cap of 65,000 visa numbers and the U.S. advanced degree exemption of 20,000 visa numbers for fiscal year (FY) 2020. Continue Reading

Directors personally liable for company’s breach of employment contract (UK)

If you have recently read the headline, say, “Directors personally liable for company’s breach of employment contract” and now quail in anticipation of a whole new avenue of attack on your business, fear not. All is not as it seems.

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