United States Employment Update: Summer 2019

It's been a busy summer for employment law changes, and there are a number of upcoming compliance deadlines which may impact your business. These, and other key developments, are outlined below.

September 30, 2019 Deadline For Submitting EEO-1 Pay Data

By September 30, 2019, employers covered by EEO-1 reporting requirements (generally, employers with 100 or more US employees) must submit pay data for calendar years 2017 and 2018. The data includes information on pay and hours worked, further broken down by job type, sex, race, and ethnicity.

The Equal Employment Opportunity Commission has developed a website to assist employers in fulfilling this requirement. The website includes guidance on using the online filing system, a sample report, as well as a set of frequently asked questions.

Highlights from the FAQs include guidance for employers with: (i) workforces that fluctuate above and below 100 employees; (ii) multiple establishments; and (iii) employees who do not identify as male or female (i.e., non-binary).

#MeToo Movement Continues to Propel Sweeping Change Across the States – Recent New York Developments

The #MeToo movement, a social media hashtag highlighting the ubiquity of sexual harassment and assault, has been a driving force behind legislation aimed at eradicating this conduct in the workplace. Since the movement began nearly two years ago, almost half of the states have passed laws related to #Metoo issues. While the specific laws vary from state to state, examples include mandatory policy and training requirements, expanded remedies for victims, and restrictions on the use of non-disclosure provisions.

Most recent, New York Governor Andrew Cuomo signed a legislative package that will dramatically impact the litigation and/or settlement of discrimination and harassment claims brought under the New York State Human Rights Law ("NYSHRL"). Key changes, with effective dates, include:

• Lower Burden for Harassment Claims: Eliminates the "severe and pervasive standard" for all forms of workplace harassment. Harassment that amounts to more than "petty slights or trivial inconveniences" will now be actionable. Effective October 11, 2019
• Affirmative Defense for Harassment Claims Eliminated: Previously, an employer could not be held liable for harassment if: (i) it had an effective anti-harassment and reporting policy; and (ii) the employee failed to make a complaint pursuant to that policy. However, the legislation eliminates this affirmative defense, stating that the filing of a complaint will not be determinative of whether the employer shall be liable. Effective October 11, 2019
• Increased Remedies in Litigation: Allows for the recovery of punitive damages and attorneys' fees for prevailing plaintiffs. Effective October 11, 2019
• Non-Disclosure Restrictions: Restricts the use of a non-disclosure provision to resolve a harassment or discrimination claim, unless it is the complainant's preference and the agreement contains certain carve-outs. If a settlement agreement contains a non-disclosure provision, the complainant must be given 21 days, none of which can be waived, to consider the agreement. Effective October 11, 2019
• Mandatory Arbitration Prohibited: Prohibits mandatory arbitration of discrimination and harassment claims. However, it is expected, consistent with previous court decisions, that this provision will be deemed pre-empted by federal law and therefore invalid. Effective October 11, 2019
• NYSHRL Expanded Coverage: Expands NYSHRL coverage to all employers. Currently, the law only applies to employers with 4 or more New York employees. Effective February 8, 2020
• Extended Statute of Limitations for Sexual Harassment Claims: For sexual harassment claims only, employees will have 3 years to bring claims before the New York State Division of Human Rights. Currently, there is a 1 year limitation. Effective August 12, 2020

New York employers are reminded that employees must be trained on sexual harassment and discrimination by October 9, 2019.  Additional information on compliance, as well as a model policy and training, is available here. Employers with 15 or more employees in New York City must comply with additional training requirements imposed by the City. Details here.

Is Extreme Obesity a Protected Disability Under the Americans with Disabilities Act?

The short answer is, it depends. The Seventh Circuit Court of Appeals (federal circuit court covering Illinois, Indiana and Wisconsin) recently held that extreme obesity is a disability under the Americans with Disabilities Act ("ADA") only if the obesity is caused by an underlying physiological disorder or condition. The court granted the employer's motion for summary judgment, holding that the plaintiff, a truck driver weighing 400 pounds at the time of his termination, failed to submit sufficient evidence to establish his obesity was related to an underlying disorder or condition.

The Seventh Circuit's holding is consistent with all other federal circuit courts that have considered the question, specifically the Second (covering Connecticut, New York, and Vermont), Sixth (Kentucky, Michigan, Ohio, and Tennessee), and the Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota). However, lower district courts in California and Texas have found obesity to be an ADA impairment without evidence of an underlying condition.

All employers, not just those located in California and Texas, should be cautious in relying too heavily on this decision. Often, state discrimination laws define disabilities more broadly than the ADA (e.g., New York). Also, in many cases, plaintiffs are able to link the obesity to an underlying disorder, and in others, plaintiffs have successfully argued that their employer regarded them as disabled and unlawfully acted based on this perception. The ADA specifically provides protection to individuals "regarded as" being disabled.

US Supreme Court Refuses to Extend California Wage Law to Offshore Drilling

The US Supreme Court unanimously ruled that a California wage law relating to standby time did not apply to work performed on oil drilling platforms in federal waters off the coast of California. The claim, styled as a class action, sought an additional 12 hours of pay per shift for "standby time." Specifically, the plaintiff alleged he was required to work 24-hour shifts – 12 hours on duty and 12 hours on standby time when he was not allowed to leave the platform – and the employer's failure to pay him for this standby time violated California law.

The Court rejected the plaintiff's argument that California's employee-friendly standby law applied, holding that under the Outer Continental Shelf Lands Act, state laws of an adjacent state will only apply to work performed in federal waters if there is a "significant void or gap" in the coverage of federal law. Here, the Court found federal law addressed both the applicable minimum wage rate and compensation for standby time, and therefore, there was no gap for the California law to fill.

The decision is particularly significant for stakeholders across energy sectors, including entities and coastal states currently exploring the labor-intensive development and installation of offshore wind farms in federal waters.

For questions, please contact Barbara Roth or Tyler Hendry.