Released March 15, 2024

NEW LAWS ENACTED

  • New York City Council enacts a law requiring employers to distribute and post a government-provided workers’ bill of rights beginning July 1, 2024. The bill of rights has been prepared by city agencies and contains information on rights under federal, state, and local laws that apply to all NYC workers, regardless of immigration status.
  • Philadelphia, Pennsylvania amends its Fair Criminal Record Screening Standards to add provisions regarding the consideration of convictions that result in exoneration, including making it an unlawful discriminatory practice for an employer to reject an applicant or employee based on a conviction that resulted in exoneration.
  • Washington state enacts a law prohibiting employers from discriminating against job applicants based upon off-duty use of cannabis and requiring drug screening that detects nonpsychoactive cannabis metabolites.
  • Oregon amended its domestic violence leave law to also include victims of bias-related crimes as eligible for protected leave. Under the new law, the definition of eligible leave under Oregon’s domestic violence statute now extends to include those targeted for violence because of their race, color, religion, gender identity, sexual orientation, disability, or national origin.

PENDING BILLS

 For the full stories, keep reading below.

NEW LAWS ENACTED

Employers in New York City Required to Post and Provide all Employees with a Workers’ Bill of Rights, Effective July 1, 2024

The New York City Council has enacted a law mandating the distribution and posting of a comprehensive workers’ bill of rights, effective July 1, 2024. Published on March 1, 2024, and crafted in collaboration with various city agencies, including the Department of Consumer and Worker Protection (DCWP) and the Mayor’s Office of Immigrant Affairs (MOIA), as well as community and labor organizations, this bill of rights aims to inform all workers in the city, regardless of immigration status, about their workplace rights and protections under federal, state, and local laws.

Employers will be required to prominently display the workers’ bill of rights poster in the workplace and provide a copy to each employee upon hiring. Additionally, for businesses operating online or through mobile applications, posting the bill of rights online or on the app is mandated. The bill of rights will be available in multiple languages, ensuring accessibility.

Key provisions of the bill of rights include identifying relevant labor laws, outlining employees’ rights to unionize, and emphasizing the universality of these rights regardless of immigration status. Employers must distribute the bill of rights to current employees by July 1, 2024, and to new hires on their first day of work. Failure to comply may result in a $500 penalty, with a 30-day grace period for rectification after the first complaint.

The law extends beyond mere posting requirements, with MOIA slated to lead outreach efforts to educate workers about their rights. This includes providing access to resources such as the city’s immigration legal hotline and asylum application help center, along with guidance on handling immigration enforcement authorities in the workplace and information on federal eligibility for temporary protected status.

Philadelphia, PA Broadens Scope of its “Ban the Box” Laws

Philadelphia, Pennsylvania has recently amended its Fair Criminal Record Screening Standards, commonly known as “Ban the Box,” with amendments aimed at enhancing job opportunities for individuals with criminal records. Effective January 19, 2024, these updates broaden the scope of protections, particularly concerning criminal convictions resulting in exoneration.

Under the amended ordinance, it is now deemed unlawful discrimination for a private employer or City agency to reject an applicant or employee based on a conviction that led to exoneration. Exoneration is defined as the reversal or vacation of a conviction through pardon, acquittal, dismissal, or other post-conviction re-examination by a court or authorized government official.

Moreover, the revised ordinance prohibits employers from maintaining policies that automatically disqualify individuals with criminal records from job opportunities. Employers may only consider an individual’s criminal record if the conviction is not later exonerated and if it relates directly to the job’s requirements, presenting an unacceptable risk to business operations, coworkers, or customers, and is compelled by business necessity. This determination must be made through an individualized assessment of the applicant’s or employee’s record and the specific job role.

These amendments align with the broader goals of Ban the Box initiatives, which aim to reduce discrimination against ex-offenders in hiring practices and decrease recidivism rates by facilitating their employment opportunities.

Washington State Enacts Law Protecting Job Applicants’ Off-Duty Cannabis Use and Limiting Certain Employer Drug Tests

Washington state has implemented a law effective January 1, 2024, prohibiting employers from discriminating against job applicants based on lawful off-duty cannabis use or test results indicating nonpsychoactive cannabis metabolites. This legislation, Senate Bill 5123, states that it aims to address the “disconnect between prospective employees’ legal activities and employers’ hiring practices” and “prevent restricting job opportunities based on an applicant’s past use of cannabis.”

Under the new law, Senate Bill (SB) 5123, employers are barred from (a) discriminating in hiring decisions based on an applicant’s use of cannabis “off the job and away from the workplace”; and (b) using preemployment drug tests that screen for nonpsychoactive cannabis metabolites to make hiring decisions. The bill notes that such metabolites may linger in the body for weeks after cannabis use, without indicating impairment or future job performance. However, employers retain the right to conduct scientifically valid drug screening that excludes nonpsychoactive cannabis metabolites or to screen for other controlled substances.

Certain exemptions apply, including positions requiring federal background checks, certain law enforcement, firefighting, and first responder jobs, and safety-sensitive roles that are identified as such by the employer prior to the job candidate’s application for the job. Notably, the law does not affect an employer’s obligation to maintain a drug-free workplace or comply with federal regulations.

Similar to legislation in California, which also took effect January 1, 2024, this law underscores a broader trend toward reevaluating preemployment cannabis testing practices nationwide. As cannabis legalization expands, more states are likely to adopt similar measures.

Employers in Washington may wish to work with their legal counsel to review and update their drug-testing policies and practices to ensure compliance with the new law and clearly identify safety-sensitive positions in job postings as applicable.

Oregon Expands Leave Law to Include Victims of Bias Crime

Oregon has broadened its domestic violence leave law to encompass victims of bias crimes. Under House Bill (HB) 3443, which became effective January 1, 2024, the scope of who is eligible for leave under Oregon’s domestic violence statute now extends to include those targeted for violence because of their race, color, religion, gender identity, sexual orientation, disability, or national origin.

Prior to the law’s expansion, covered employers–those with six or more employees in Oregon during twenty or more calendar workweeks in the year–were required to provide protected leave to eligible employees who are victims of domestic violence, harassment, sexual assault, stalking, or who are parents or guardians of minor children or dependents facing such circumstances. This leave facilitates access to legal, medical, or relocation assistance necessary to safeguard the well-being of the employee or their dependent. HB 3443 now provides protected leave to victims of bias crimes as well.

Furthermore, aligning with the Paid Leave Oregon provisions, which offer similar allowances, the Oregon Employment Department (OED) has updated the verification requirements for safe leave related to bias crimes. Qualifying documentation includes police reports indicating victimization, evidence of legal proceedings involvement, or confirmation of treatment or counseling by qualified professionals.

In essence, Oregon’s amended domestic violence leave law reflects a comprehensive, coordinated approach to addressing the workplace needs of, and challenges that may be faced by, employees who experience violence.

PENDING BILLS

Members of the U.S. Congress Introduce Protecting Older Workers Against Discrimination Act

A bipartisan group of House members in the U.S. Congress has introduced the Protecting Older Workers Against Discrimination Act (POWADA), aiming to enhance protections for older workers against age discrimination. The bill, commonly referred to as POWADA, seeks to increase legal safeguards for older employees by addressing the burden of proof in age discrimination claims.

POWADA would align the burden of proof for age discrimination claims with existing standards for discrimination based on race and national origin. It would do this by reinstating the “mixed-motive” test: a person complaining of age discrimination could establish unlawful discrimination by demonstrating that age was “a motivating factor” (but not necessarily the determining reason) for the alleged discriminatory action.

Advocates for POWADA argue that a 2009 Supreme Court decision, Gross v. FBL Financial Services, Inc., weakened protections for older workers by imposing a higher burden of proof in age discrimination cases, to require that age was “the decisive motivating factor” for the employer’s adverse job action. By restoring the mixed-motive test, POWADA aims to address this imbalance and provide older workers with a more equitable legal framework for addressing discrimination in the workplace.

The legislation also would amend several other civil rights laws, including the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973, to ensure consistent application of the mixed-motive standard across other forms of discrimination claims as well.

Employers may still have defenses against age discrimination claims, including proper documentation of employment actions and performance evaluations. However, if enacted, POWADA would lower the burden of proof in various discrimination claims.

Disclaimer: this information is not intended as legal advice. Please consult with legal counsel to ensure your organization’s compliance with applicable legal requirements.