Category: Policies and Handbooks

New York City Pay Transparency: What Employers Need to Know

Effective November 1, 2022, covered employers in New York City must comply with new legislation concerning pay transparency. Specifically, the New York City Pay Transparency Law (“Pay Transparency Law” or “Law”) amends the New York City Human Rights Law (NYCHRL) by requiring employers to include minimum and maximum base salaries and wages for a position when advertising or posting a job, promotion, or transfer opportunity. We discuss the new law and guidance issued by the New York City Commission on Human Rights (“Commission”) below. New York City joins a number of other jurisdictions that have passed some form of a pay transparency law, including California, Colorado, Connecticut, Maryland, Nevada, Rhode Island, and Washington. Who Are “Covered Employers?” The Pay Transparency Law applies to all New York City employers with at least four employees (which includes owners and individual employers). For counting purposes, all four employees need not work in New York City or in the same location. Instead, a particular workplace is covered so long as one of the employees works in the city. Employment agencies are also covered by the Law regardless of size, but the Law excepts temporary help firms seeking applicants to join their pool of available workers. What the Pay Transparency Law Requires Any advertisement for a job, promotion, or transfer...

OSHA Issues Updated COVID-19 Guidance

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) recently updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (“Guidance”), to bring it in line with the most recent recommendations published by the Centers for Disease Control and Prevention (“CDC”) on July 27, 2021, which were updated in view of the Delta variant. The updated Guidance is designed to help employers (outside of healthcare) protect workers who are “unvaccinated” or otherwise at risk, and differentiates, in certain respects, as to recommendations for unvaccinated and vaccinated employees, with vaccinated employees not subject to the same level of precautionary measures as their unvaccinated peers. The Guidance recommends that employers engage with their employees – and, where applicable, employee representative associations – to determine how to implement multilayered interventions to protect unvaccinated and otherwise at-risk employees, and to mitigate the spread of COVID-19 at the workplace. The recommended interventions are summarized, in part, below: Facilitating Vaccinations: Employers should grant employees paid time off to obtain the COVID-19 vaccine and to recover from any side effects. Employers should also consider working with local public health authorities to provide vaccinations in the workplace and should adopt policies that require employees to either get vaccinated or undergo regularly scheduled Covid testing in addition...

Supreme Court Limits Scope Of The Computer Fraud And Abuse Act

The Consumer Fraud and Abuse Act, 18 U.S.C. §1030 (CFAA) is a federal statute that imposes criminal penalties and provides for a civil cause of action against individuals who obtain information from a computer by intentionally accessing the computer without authorization or by exceeding authorized access. The statute has been used to criminally prosecute and bring civil actions for damages and losses against employees who have misappropriated their employers’ trade secrets or other confidential information. Those damages and losses may include attorneys’ fees expended by the employer to investigate violations of the statute. In its recent opinion in Van Buren v. United States, the United States Supreme Court resolved a disagreement among the lower federal courts over the scope of the CFAA’s “exceeds authorized access” clause. Does an employee with authorized access to his employer’s computers “exceed authorized access” only when accessing specific computer files the employee has not been authorized to access, or does the employee also “exceed authorized access” when accessing files for which the employee has authorization, but uses the information for an unauthorized purpose? In Van Buren, the Supreme Court ruled in favor of the more limited scope of the “exceeds authorized access” clause. Background When employed as a police officer in Georgia, Nathan Van Buren was the target of an...

New Jersey Guidance Establishes That Employers Can Require That Employees Receive COVID-19 Vaccine to Enter Workplace

With COVID-19 vaccinations becoming more accessible to individuals, the question on many employers’ minds is whether the employer can now require its employees to be vaccinated in order to return to the workplace. On March 19, 2021, the New Jersey Department of Health (DOH) addressed this question and published guidance stating that an employer can require that its employees receive the COVID-19 vaccine to return to the workplace. The DOH guidance, however, does include exceptions to mandatory vaccination policies implemented by employers as follows: if an employee cannot get the COVID-19 vaccine because of a disability that precludes him or her from being vaccinated; where an employee’s doctor has advised the employee not to get the vaccine while pregnant or breastfeeding; or where an employee has a sincerely held religious belief, practice, or observance that precludes him or her from receiving the vaccine, an employer must provide a reasonable accommodation from its mandatory vaccine policy – unless doing so would impose an undue burden on its operations. In the event an employee seeks to be exempt from a mandatory vaccination policy for medical reasons (described above), his or her employer may request medical documentation from the employee to confirm the employee (i) has a disability precluding him or her from vaccination, or (ii) has been...

New York State Enacts Law Providing Paid Time Off for COVID-19 Vaccination

Governor Andrew Cuomo recently signed legislation S2558A/A3354-B granting all public and private employees in New York paid leave to obtain a COVID-19 vaccine. The new legislation, which is effective as of March 12, 2021 and expires on December 31, 2022, amends the New York Civil Service Law (with respect to public employees), along with the New York Labor Law, and provides public and private employees with up to four hours of paid leave per vaccine injection. In connection with this legislation, the New York Labor Law was amended to add Section 196-c, which provides that: New York employees must receive paid COVID-19 vaccine leave of up to four hours per vaccine injection. Thus, employees receiving a two-injection COVID-19 vaccine (such as those currently offered by Pfizer and Moderna) will receive up to eight hours of paid leave to obtain the vaccine. The “four hour” maximum does not apply to an employee subject to a collective bargaining agreement (CBA) providing a greater number of hours of leave to obtain the vaccine or where an employer authorizes additional time off for employees to receive the vaccine. The leave must be paid at an employee’s regular rate of pay. The leave cannot be charged against “any other” employee leave. Accordingly, employers cannot require employees to use other available...

OSHA Releases New Workplace Guidance on COVID-19

On January 21, 2021, President Biden issued the Executive Order on Protecting Worker Health and Safety (“Executive Order”) directing, among other things, that the federal Occupational Safety and Health Administration (OSHA) issue, within two weeks, revised guidance to employers on workplace safety during the COVID-19 pandemic, consider establishing emergency temporary standards for workplace COVID-19 protections, and, if needed, issue such standards by March 15, 2021. The Executive Order also requires that OSHA launch a national program to focus its enforcement efforts on those violations that place the greatest number of employees at serious risk or conflict with anti-retaliation principles and publicize its efforts through a multilingual outreach campaign to inform employees of their rights under OSHA’s applicable regulations, with special emphasis on communities hit hardest by COVID-19. On January 29, 2021, as directed by the Executive Order, OSHA issued new guidance, entitled Protecting Workers: Guidance on Mitigation and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). The Guidance, which is supplemented by industry-specific measures, provides recommendations to assist employers in creating and maintaining safe and healthy workplaces, while also describing OSHA’s current safety and health standards. The new Guidance is not substantially different from previous OSHA guidance, but it sets a different tone – signaling greater support for OSHA enforcement. Importantly, the Guidance...

EEOC Injects Guidance on COVID-19 Vaccine Practices in the Workplace

In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...

UPDATE: Mandatory Nondiscrimination Policies, Training and Reporting: Proposed New Jersey Legislation Would Impose New Obligations on Employers and Lengthen the Limitations Period

On February 18, 2020, Governor Phil Murphy continued his quest to enhance employee protections in New Jersey by announcing proposed legislation aimed at strengthening New Jersey’s already-expansive prohibitions against harassment and discrimination in the New Jersey Law Against Discrimination (NJLAD). According to the proposed legislative findings, the bill was designed to “reject the norms of yesterday that overlooked workplace harassment and discrimination as business as usual.” The proposed legislation comes on the heels of a report released by the New Jersey Division on Civil Rights (DCR) this month, Preventing and Eliminating Sexual Harassment in New Jersey, the result of a trio of public hearings held in September 2019. Employers are already scrambling to keep up with legislation directed at protecting call center employees, cracking down on misclassification, and expanding the rights of employees affected by a mass layoff or plant closing. Here are the highlights from the proposed legislation: Expanded Definition of Employee. Domestic workers and unpaid interns would be added to the definition of “employees” under the NJLAD and there are specific provisions governing domestic workers. Extended Time for Filing Claims. The current two-year statute of limitations applicable to claims brought under the NJLAD would be extended to three years. And, the time to file a complaint with the DCR would be extended from...

NYC Council Passes Legislation Barring Pre-employment Marijuana Testing

On April 9, 2019, the New York City legislature passed legislation that would amend Section 8-107 of the New York City Administrative Code to prohibit employers from testing job applicants for marijuana or tetrahydrocannabinols (THC) – the active ingredient in marijuana. Specifically, the law states, “it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The legislation creates an exception for individuals who apply to specifically defined roles; such as police officers or peace officers, those requiring a commercial driver’s license, those requiring the supervision or care of children, medical patients, or other vulnerable persons, and those with the “potential to significantly impact the health or safety of employees or members of the public.” Furthermore, the law would not apply to drug testing that is required pursuant to: (a) regulations promulgated by the federal department of transportation; (b) federal contracts; (c) a federal or state law, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (d) a collective bargaining agreement. Lastly, it should be noted that the bill does not bar marijuana testing...

2019 Rings in Further Protections for Delaware and Philadelphia Employees

Before 2018 wrapped up, the year of the #MeToo movement, the Delaware and Philadelphia legislatures worked to ensure the passage of employee-friendly legislation. While Delaware’s new law focuses on sexual harassment,  Philadelphia has turned its focus on the work schedules for those employed in service industries. Delaware, like many other states in 2018, passed legislation to strengthen workplace harassment laws. The legislation was signed into law in August 2018, and went into effect on January 1, 2019. Delaware’s Discrimination in Employment Act has now been amended to include provisions specifically dedicated to sexual harassment that apply to employers with at least four employees in the state. It should be noted that Delaware’s law includes unpaid interns, applicants, joint employees and apprentices within its definition of employee. In addition to defining sexual harassment, the law provides that employers will be liable for sexual harassment if: (1) A supervisor’s sexual harassment results in a negative employment action of an employee; (2) The employer knew or should have known of a non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) A negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or...