Laura A. Stutz

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California’s Fair Employment & Housing Council has finalized and adopted new regulations to establish criteria for the use and consideration of criminal history information in employment decisions where such use may constitute a violation of California’s Fair Employment and Housing Act. The new regulations take effect July 1, 2017, and are available here and on the Council’s website.  The regulations are intended to clarify, outline and maintain consistency between the laws governing the consideration of criminal history information in employment decisions.

The regulations reiterate existing prohibitions on the use of criminal history information and also require employers to demonstrate a business necessity, in addition to job-relatedness, for requesting a criminal history if the policy or practice of considering criminal history information creates an adverse impact on applicants or employees based on certain protected classes. Applicants and employees bear the initial burden of demonstrating that the policy or practice has an adverse impact on a protected class.  If this showing is made, the burden shifts to the employer to establish that the policy is justifiable because it is job-related and consistent with business necessity. To do so, the employer must demonstrate that the policy or practice is appropriately tailored, taking into account several factors including: (i) the nature and gravity  of the offense or conduct; (ii) the passage of time; and (iii) the nature of the position held or sought.  Even if an employer can demonstrate job-relatedness and consistency with business necessity, an applicant or employee may still bring a claim if he or she can show that there is a less discriminatory alternative available to advance the employer’s legitimate concerns.

Retail employers in California should review their policies and practices to ensure that their use of criminal history information complies with the new regulations. Employers are also reminded of their obligation to comply with the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the California Investigative Consumer Reporting Agencies Act, Cal. Civ. Code § 1786 et seq.

Retail employers should take note that the U.S. Department of Labor (“DOL”) updated its mandatory posters notifying employees of their rights under the Fair Labor Standards Act (“FLSA”) and Employee Polygraph Protection Act (“EPPA”).  The FLSA and EPPA posters no longer identify the civil monetary penalties that may be assessed for violations.  The FLSA poster also provides information regarding the rights of nursing mothers under the FLSA.  Employers are required to post the revised mandatory posters as of August 1, 2016, and may download the revised posters from the DOL’s website.

Employers should review their workplace employment law postings to ensure those displayed are up-to-date and in compliance with all applicable laws.

Employers should also be reminded of their responsibilities under the FLSA, including their responsibilities to nursing mother employees who are subject to the FLSA’s overtime requirements. Those nursing mothers are entitled to reasonable break time to express breast milk for one year after the child’s birth and a private place, other than a bathroom, to do so.

New York City Enacts Law Requiring Gender-Neutral Restrooms On June 28, 2016, New York City Mayor Bill de Blasio signed legislation passed earlier this month by The New York City Council to amend the City’s administrative code, plumbing code and building code to require gender-neutral single-occupant restrooms. The new law applies to businesses and other establishments in the City’s five boroughs with existing single-occupancy, publicly-accessible restrooms. The law does not require businesses to build new single-occupant restrooms, nor does it affect larger restrooms with multiple single-stalls.

Instead, the law prohibits the labelling of single-occupant restrooms as gender-specific. Beginning January 1, 2017, signs designating single-person restrooms for one gender, i.e., “men” and “women,” must be removed and replaced with signs for all sexes.  Employers with establishments in the City that may be affected should take advantage of the lead time to ensure compliance.

On March 28, 2016, New York City Mayor Bill de Blasio signed three pieces of legislation passed earlier this month by The New York City Council to amend the City’s Human Rights Law (“NYCHRL”).

The new laws:

  1. require that the NYCHRL be interpreted expansively to maximize civil rights protections, regardless of how courts have interpreted similar provisions under federal and state anti-discrimination laws;
  2. permit the City’s Commission on Human Rights the authority to award attorney’s fees and costs to complainants in cases brought before the Commission; and
  3. repeal language addressing how to construe the NYCRHL’s prohibition against discrimination on the basis of sexual orientation.

The repealed language provided that the NYCHRL should not be construed to, among other things, restrict an employer’s right to insist that an employee meet bona fide job-related qualifications of employment, or authorize affirmative action on the basis of sexual orientation.

The laws became effective immediately upon the Mayor’s signature. Employers should be aware of the enhanced protections for their New York City employees.

The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer positionConfidential-shutterstock_41997904 statements to Charging Parties upon request.  The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.

Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be considered confidential.  The type of information considered confidential by the EEOC includes:

  • Sensitive medical information (except for the Charging Party’s medical information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, e.g., dates of birth in non-age cases, residential addresses, personal telephone numbers, personal email addresses, etc.
  • References to Charges filed with the EEOC by other Charging Parties

The EEOC has stated  that it will not accept an employer’s blanket or unsupported assertions of confidentiality.  If employers present confidential information with their position statements, the EEOC instructs that the information should be segregated from the position statement in separate attachments and bear one of the following designations to signify that the attachment contains information believed to be confidential and subject to protection from disclosure:

  • Sensitive Medical Information
  • Confidential Commercial Information
  • Confidential Financial Information
  • Trade Secret Information

The labels are intended to expedite the EEOC’s review of confidential information and consideration of the justification proffered to maintain confidentiality.  After its review, the EEOC has discretion to redact the information designated by the employer as confidential before releasing the position statement to the Charging Party.

Given the short amount of time often provided to respond to a Charge, and the type of information generally presented to support the position statement—e.g., employment information of non-parties and proprietary, competitive corporate information—employers should familiarize themselves with the EEOC’s new procedures for releasing employer position statements so that they are prepared to properly present and protect confidential information.

On January 7, 2016, New York launched the Medical Marijuana Program established under the State’s Compassionate Care Act (“Program”). The Program

Medical marijuana prescription with bottle and stethoscope.

is intended to deliver approved forms of marijuana to seriously ill individuals “in desperate need of treatment.”   Medicinal use of marijuana in New York requires a registered physician’s certification and State-issued registry identification card.

The Program establishes that State-certified medicinal pot users “shall be deemed” disabled within the meaning of the State’s Human Rights Law (“NYSHRL”).  Under the NYSHRL, employers with four or more employees are prohibited from discriminating against individuals in compensation or in the terms and conditions of employment based on their status as individuals with disabilities. Employers are also obligated to accommodate disabled individuals.

The Program protects certified users from “disciplinary action by a business” with two exceptions.  First, the Program recognizes the right of employers to maintain policies regarding drug use in the workplace. Second, employers are not required to do any act that would cause the employer to violate federal law or cause it to lose a federal contract or funding.  Marijuana, whether medicinal or recreational, remains an illegal drug under federal law.

Retail employers may wish to notify their human resources personnel and managers about the Program and instruct them to analyze each case of employee marijuana use on an individual basis.

The U.S. Equal Employment Opportunity Commission (“EEOC”) created the Action Council for Transformation to a Digital Charge System (“ACT Digital”) to enable the electronic submission of documents between the parties to a Charge of Discrimination and the EEOC.  Phase I of the system allows an employer against whom a Charge of employment discrimination has been filed to electronically interact with the EEOC through its online service for respondents, the EEOC Respondent Portal.  The pilot program for Phase I began in May 2015 in the Commission’s Charlotte and San Francisco field offices and rolled out to other offices, including Denver, Detroit, Indianapolis and Phoenix. It is expected that the Respondent Portal will be available in all EEOC field offices by October 1, 2015.

An employer named as a respondent in a Charge of Discrimination filed with the EEOC may receive a Notice of Charge of Discrimination by electronic mail, rather than a paper notice.  The electronic Notice of Charge will include an https://link, Charge number, and unique login information to allow the employer access to the Respondent Portal.  System access by a Charging Party is not currently available.

The Respondent Portal allows the employer to electronically:

  • View and download the Charge;
  • Review an invitation to mediate and respond to the Charge;
  • Submit a position statement to the EEOC; and
  • Provide/verify the employer’s contact information, including the designation of a legal representative.

Extensions of time may not be requested through the Portal.  If the employer has not logged onto the Respondent Portal within 10 days of the emailed Notice, the EEOC will attempt to re-serve the Notice of Charge.  The EEOC has published a User Guide for employers and guidance in the form of Frequently Asked Questions.

Employers may wish to notify their information technology services personnel about the electronic notification system to ensure emails ending with a “.gov” domain are not captured by spam filters.  Employers should also inform their human resources and management personnel about the system and instruct them to forward immediately to the appropriate individuals/department all communications, documents and notices received from the EEOC.

The San Francisco Board of Supervisors passed two ordinances, known colloquially as the Retail Workers Bill of Rights, to regulate: (1) employee hours, scheduling, and retention; and (2) treatment of part-time employees at certain standardized retail establishments in San Francisco.  The ordinances, San_Franciscocodified as: Hours and Retention Protections for Formula Retail Employees Ordinance, San Francisco Police Code Article 33F, and Fair Scheduling and Treatment of Formula Retail Employees, San Francisco Police Code Article 33G, went into effect earlier this year.  Enforcement by the City of San Francisco’s Office of Labor Standards Enforcement (“OLSE”) began July 3, 2015. The new laws, as amended on July 7, 2015, apply to “Formula Retail Establishments” with at least 40 retail sales establishments worldwide and 20 or more employees in San Francisco. The term “Formula Retail Establishment” applies to retail sales or service establishments that maintain standardized physical features such as an array of merchandise, decor and color scheme, uniform apparel, signage, trademarks, etc.  Examples of such establishments include chain and big box stores, financial service businesses, movie theaters, and chain and fast food restaurants. Covered retail establishments must comply with the following requirements:

  1. Before hiring new employees, offer additional work hours (either in writing or by posting the offer in a conspicuous location) to qualified part-time employees who have performed similar work for the covered retail establishment, and afford those part-time employees 3 days to accept the offered hours;
  2. Provide new employees with a “good faith” written estimate of the number of scheduled shifts per month and the days and hours of those shifts;
  3. Provide employees with their work schedules 2 weeks in advance, and provide “predictability pay” if schedules change with less than seven days’ advance notice;
  4. Provide pay for on-call shifts when the employee is not called into work, subject to exceptions;
  5. Provide part-time employees with the same starting hourly wage, access to time off, and eligibility for promotions as full-time employees who perform at the same level; and
  6. Provide for continued employment of all employees for a period of 90 days if the covered retail establishment changes ownership, subject to certain conditions.

Employees covered by the ordinances include any person, including temporary and seasonal personnel, who in a particular week performs at least 2 hours of work for a covered retail establishment within the geographical boundaries of the City and County of San Francisco and who qualifies for state minimum wage, or is scheduled for an on-call shift of at least 2 hours, regardless of whether the person actually reports for the on-call shift.  Covered retail establishments must also maintain and retain records of scheduling (including schedule changes and notices) for at least 3 years.

Covered retail establishments must post a notice at the workplace to inform covered employees of their rights under the new laws.  The OLSE has published the required poster and guidance in the form of Frequently Asked Questions and a Fact Sheet.  The OLSE is to prepare new versions of the poster and guidance to incorporate the changes required by the July 7, 2015 amendment to the ordinances.

Janitorial and security contractors of covered retail establishments must also comply with the ordinances.  Covered retail establishments must provide their janitorial and security contractors with a copy of the ordinances and include a provision in all service contracts for janitorial or security services requiring the contractor to comply with the ordinances.

Covered retail establishments should review their scheduling, on-call, and hiring practices to ensure compliance with the new ordinances.  Document retention policies and service contracts should also be reviewed for compliance.