Released November 17, 2023

LEGISLATIVE NEWS

  • On October 8, 2023, California Governor Newsom vetoed Senate Bill 731. This bill would have required employers to provide at least 30 calendar days’ advance written notice before requiring employees working from home to return to work in person. In addition, the vetoed law would have required employers to notify employees of “their right to request continuing to work remotely as a reasonable accommodation for a disability.”
  • New York Governor Hochul signed legislation restricting employer access to employees’ personal social media accounts. The law, which will go into effect on March 12, 2024, prevents employers from requiring employees or applicants to disclose their personal social media account information or content, with a few exceptions.

COURT & AGENCY NEWS

  • The U.S. Equal Employment Opportunity Commission (EEOC) announced a Notice of Proposed Rulemaking implementing the Pregnant Workers Fairness Act (PWFA). As has been previously detailed in this Brief, the PWFA expanded workplace protections for pregnancy, childbirth, and related medical conditions. The EEOC’s proposed rule, if adopted, would provide additional details on what is required by the PWFA, including many examples of possible reasonable accommodations.
  • The U.S. EEOC recently released lengthy proposed guidance for employers regarding their compliance with federal anti-discrimination laws that prohibit workplace harassment based on protected characteristics and membership in protected groups.
  • The U.S. EEOC and U.S. Department of Labor (DOL) entered into a Memorandum Of Understanding to increase coordination between the two agencies. The partnership will include information sharing, joint investigations, training, and outreach, and may increase the likelihood of enforcement actions brought by both agencies.
  • On October 30, 2023, President Biden signed an executive order on artificial intelligence (AI), laying out his administration’s roadmap for how it will address developing issues in the AI industry and AI usage by organizations. The one-hundred-page order includes directives to the Department of Labor which will likely result in guidance and/or promulgation of regulations from the DOL affecting employers who utilize AI.

Legislative News

Governor Newsom Vetoes SB 731 Which Would Have Mandated a 30-Day Notice for Return to Office 

On October 8, 2023, California Governor Gavin Newsom vetoed Senate Bill 731, a measure that would have required employers to provide at least 30 calendar days’ advance written notice before requiring employees working remotely to return to in-person work. The vetoed bill also would have required employers to provide a written notice using standard language to workers of their right to request continuing remote work as a reasonable accommodation for a disability.

The veto does not affect employers’ existing legal obligations to engage in the interactive process and potentially allow remote work as a reasonable accommodation when circumstances warrant it, under the Americans with Disabilities Act (ADA), the California Fair Employment and Housing Act (FEHA), and other similar anti-discrimination laws.

Governor Newsom, in his veto message, specifically noted that his administration supports the obligation to reasonably accommodate employees with disabilities under current law, which includes the possibility of allowing remote work in appropriate circumstances. He also expressed support for employers giving reasonable advance notice to employees for return-to-work requirements where feasible.  However, his decision to veto the bill centered on the perceived inflexibility of the 30-calendar-day advance notice timeframe, which he argued failed to consider the unique needs of each employer, including situations where organizations may have limited personnel for in-person positions, or during critical times or emergencies.

The bill’s proponents had argued that the legislation was needed to address concerns that (a) post-pandemic return-to-office directives could disproportionately impact individuals with disabilities who had benefited from remote work arrangements; (b) individuals were not aware of their rights to request telework as a reasonable accommodation for a disability. 

New York Enacts Employee Social Media Privacy Law

New York has enacted Assembly Bill A836 and Senate Bill S2518A, thereby limiting an employer’s ability to request or access personal social media information of their employees and job applicants. This law, which places a strong emphasis on the rights of employees to maintain the privacy of their personal social media accounts, will go into effect on March 12, 2024.

Key provisions of the law (not an exhaustive list):

  1. Access Restrictions: Employers are expressly prohibited from requesting or requiring employees or job applicants to disclose their social media account usernames, passwords, or login information. This restriction extends to any attempt to compel individuals to access their personal accounts in the presence of the employer.
  2. Protected Accounts: The law applies to “personal accounts” “used exclusively for personal purposes,” “on electronic medium” on which “users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations.”
  3. Exceptions for Business Use: While the law establishes a general prohibition, exceptions allow employers to access accounts used for business purposes. However, employees must be given prior notice of this requirement.
  4. Retaliation Prohibition: Employers are explicitly barred from retaliating against employees or applicants who refuse to disclose their social media account information. This protection extends to actions such as discharge, discipline, or any form of penalty for non-compliance.
  5. Court Order Compliance: Employers are permitted to access social media accounts when necessary to comply with a court order.
  6. Limitations on Employer-Paid Devices: Employers can only access electronic communication devices paid for, in whole or in part, by the employer if prior notice is given, and the employee explicitly agrees to such conditions.
  7. Publicly Available Information: While employers are restricted from demanding log-in information, they are still allowed to access information that is publicly available without requiring log-in details. Additionally, employers may utilize information voluntarily shared by employees, clients, or third parties for reporting misconduct.

Businesses operating in New York may wish to review their employment policies and practices in light of this new law to ensure they to align with the new requirements.

Court & Agency News

EEOC Issues Notice of Proposed Rulemaking Providing Guidance and Clarity on the Requirements of the Pregnant Workers Fairness Act

As required by the Pregnant Workers Fairness Act (PWFA), the U.S. Equal Employment Opportunity Commission (EEOC) has released proposed regulations aimed at providing guidance to employers on what constitutes a “reasonable accommodation” under the new law. The PWFA, which went into effect on June 27, 2023, tasked the EEOC with providing clarification and details on how the law will be interpreted.

The PWFA, as detailed in previous editions of the Brief, was designed to address shortcomings in the Pregnancy Discrimination Act of 1978. Notably, it responds to situations where pregnant workers may not have received job accommodations in the past because their pregnancy didn’t meet the definition of “disability” found in the Americans with Disabilities Act (ADA).

The proposed regulations offer insight into the types of reasonable accommodations pregnant workers may seek. Many of the types mirror the Americans with Disabilities Act (ADA) but are tailored specifically for pregnancy-related conditions. These accommodations include job restructuring, modified work schedules, breaks, time off (e.g., for medical appointments or therapy sessions for postpartum depression), telework, and even temporary suspension of essential job functions, provided it doesn’t cause undue hardship to employers. The proposed regulations highlight specific accommodations that would be presumptively reasonable and that would not create an undue hardship to an employer, such as breaks for water and restroom use, alternating between sitting and standing, and breaks for eating and drinking.

The EEOC encourages employers to engage in an interactive process similar to that outlined in the ADA to identify appropriate and effective accommodations.

The new law, clarified by the proposed rules, provides that healthy pregnancies qualify for accommodations under the PWFA, and there’s no specified threshold for the severity of physical or mental conditions for accommodation requests. The regulations also encompass an expansive definition of “pregnancy, childbirth, or related medical conditions,” covering current, past, and potential pregnancies, lactation, birth control use, menstruation, miscarriages, and abortion.

A significant departure from ADA requirements is the PWFA’s recognition that an employee can be considered qualified for a position even if temporarily unable to perform an essential job function due to a pregnancy-related condition. The regulations provide a timeframe of up to 40 weeks for such temporary inability, allowing for flexibility in accommodating the needs of pregnant employees.

Furthermore, the proposed rules suggest that temporarily suspending essential job functions could be a reasonable accommodation, contingent on factors like the availability of other employees or third parties to perform the tasks.

We will continue to monitor these proposed regulations as they go through the promulgation and adoption process.

EEOC Aims to Broaden Enforcement of Anti-Harassment Laws in New Proposed Guidance           

The EEOC has released extensive proposed guidance titled “Enforcement Guidance on Harassment in the Workplace.” The guidance—which seeks to consolidate and therefore replace numerous other EEOC guidance documents—communicates the agency’s position on what constitutes effective anti-harassment policies, complaint processes, training, and other measures to prevent and address workplace harassment, while addressing the evolving nature of workplace harassment.

Below is a non-exhaustive summary of (a) some of the key topics covered in the proposed guidance and (b) the EEOC’s position regarding effective practices in each area.

Anti-Harassment Policies

The EEOC writes that effective policies should generally, and at a minimum:

  • Clearly define prohibited conduct.
  • Mandate that supervisors report harassment when they are aware of it.
  • Contain:
  • multiple reporting avenues, including during non-standard working hours.
  • accessible points of contact for reporting harassment, including contact information.
  • an explanation of the complaint process (including the ability to bypass a supervisor), anti-retaliation measures, and confidentiality protections.
  • Be widely disseminated, comprehensible to workers (including those with limited literacy skills or proficiency in English) and effectively implemented.

Complaint Processes

The EEOC writes that effective complaint processes should generally have these components, at a minimum:

  • A provision for prompt and effective investigations and corrective action.
  • Adequate confidentiality and anti-retaliation protections.
  • No obstacles to filing complaints, such as undue expenses or burdensome
  • Investigations conducted by impartial parties, seeking input from all involved parties.

Effective Training 

According to the EEOC, effective training should generally have these features, at a minimum:

  • Deployed to all employees on a regular basis.
  • Explain the anti-harassment policy and complaint process, how confidentiality will be handled, and protections against retaliation.
  • Describe and provide examples of prohibited harassment as well as conduct that if not addressed may rise to the level of illegal harassment.
  • Inform employees of their rights in case of harassment.
  • Educate supervisors on preventing, identifying, stopping, reporting, and correcting harassment, including steps they can take to minimize the risk of harassment.
  • Be tailored to the workplace and workforce.
  • Delivered in a format that is clear and easy for learners to understand.

Virtual Workplace Harassment

  • The guidance states that conduct in virtual work environments can contribute to a hostile work environment.
  • Examples include sexist comments during video meetings or offensive imagery visible in an employee’s virtual workspace.

Liability for Social Media and Non-Work Related Conduct

  • Employers may be held liable for conduct outside the workplace if it has consequences in the workplace and contributes to a hostile environment.
  • Examples include social media posts containing ethnic epithets that impact the work environment.

Protections for LGBTQ+ Employees

  • The guidance outlines protections based on sexual orientation and gender identity, in line with the Bostock v. Clayton CountyS. Supreme Court decision.
  • It also defines harassment related to gender identity and states it may include, among other behavior, “intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” 

Stereotypes and Misperceptions

  • The guidance extends protections even if harassment is based on perceived membership in a protected class, regardless of the accuracy of that perception.

Preventing and Correcting Harassment

  • Employers must exercise reasonable care to prevent and correct harassment.
  • The guidance lists several examples of conduct where a single incident is severe enough to constitute a hostile work environment.
  • Policies, complaint processes, and training should be regularly updated and monitored for effectiveness.

While the guidance is not final, nor does it carry the same weight as a formal regulation, it does provide valuable insights into the EEOC’s interpretation of workplace harassment laws and how the agency will investigate and seek to enforce them. 

EEOC and the Department of Labor Enter into Memorandum of Understanding Agreeing to Increased Cooperation Between the Two Government Agencies

The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL), Wage and Hour Division (WHD), have entered into a Memorandum of Understanding (MOU) to establish a collaborative partnership. The stated purpose is to maximize the enforcement of federal laws administered by both agencies through information sharing, joint investigations, training, and outreach.

Key Provisions of the MOU (not an exhaustive list):

  1. Information Sharing: Both agencies can share information supporting each other’s enforcement activities, including complaint referrals, investigative files, employer reports (e.g., EEO-1 Reports or FLSA records), and statistical analyses.
  2. Coordinated Investigations and Enforcement: The agencies may conduct coordinated investigations in appropriate cases, exploring settlement or conciliation under the relevant statutes.
  3. Training and Outreach: Mutual training for staff in identifying cases under each other’s jurisdiction, joint outreach, development of training materials, and policy statements.
  4. Duration and Legality: The MOU is voluntary, non-binding, and not legally enforceable. It does not limit the agencies in their normal operations.

Implications for Employers:

  1. Increased Information Sharing: Expect more collaboration between EEOC and DOL/WHD on individual charges and investigations.
  2. Potential for Systemic Investigations: The MOU’s provisions open avenues for broader data-sharing, potentially fueling systemic discrimination investigations by the EEOC.
  3. Consistency in Reporting and Practices: Savvy employers will seek to ensure consistency in their data reporting, pay practices, and handling of complaints related to various protected classifications.

The MOU, effective immediately, signifies a new era of interagency cooperation, and underscores the continued need for employers to comply with all applicable employment laws and regulations.

President Biden Signs Executive Order on Artificial Intelligence with Implications for Employers

On October 30, 2023, President Biden signed an Executive Order (EO) outlining his administration’s comprehensive approach to the development and regulation of artificial intelligence in the United States. The one hundred-page document establishes a roadmap addressing various aspects of the AI industry, with specific directives impacting the U.S. Department of Labor (DOL).

The EO contains numerous provisions related to (1) safety and security of AI systems; (2) the responsible use of AI in healthcare and education settings, and by the government; (3) collaboration with other nations on AI frameworks and standards; (4) fostering innovation and fair competition in the AI ecosystem; and (5) safeguards to protect citizens’ privacy. Below are some of the provisions that pertain to the workplace- and civil-rights related practices, specifically:

Supporting Workers

  • Mitigating AI Harms: Principles and best practices will be developed to address job displacement, labor standards, workplace equity, health, safety, and data collection.
  • Labor-Market Impact Report: A report on AI’s potential labor-market impacts will be produced, with options for strengthening federal support for workers facing disruptions.

Advancing Equity and Civil Rights

  • Discrimination Prevention: Clear guidance will be provided to federal contractors to prevent AI algorithms from exacerbating discrimination.
  • Algorithmic Discrimination Mitigation: Training, technical assistance, and coordination will be promoted to address algorithmic discrimination.

In summary, President Biden’s EO on AI sets an ambitious, comprehensive agenda to govern the safe, secure, and trustworthy development and use of AI in the U.S. Employers who utilize or plan to utilize AI should closely monitor these developments, considering potential impacts on workplace practices, labor standards, and the responsible use of AI technologies. As the Biden Administration collaborates with Congress, further legislation may complement these executive actions in shaping the future of AI regulation in the country.

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