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Released October 20, 2023

BREAKING NEWS

• California Governor Newsom vetoed a bill passed by the state legislature that would have made California the first state to prohibit discrimination based on caste. As discussed in the September edition of The Brief, the bill would have made it illegal to discriminate against a person based on that “individual’s perceived position in a system of social stratification on the basis of inherited status.” Governor Newsom issued a statement that he vetoed the bill because caste discrimination is currently prohibited under California law.

NEW LAWS ENACTED

• Governor Newsom signed California’s Workplace Violence Prevention Bill passed by the state legislature. As discussed in the July edition of The Brief, the bill requires all California employers with at least one employee to “establish, implement and maintain…a workplace violence prevention plan, which includes among other things: (1) a requirement to document each occurrence of violence in an incident log, including the post-incident response, and (2) a requirement that employees be provided with training related to the employer’s workplace violence prevention plan. Certain aspects of the bill will go into effect July 1, 2024, and others January 1, 2025.
• New York Governor Hochul signed SB7382 adding “gender identity or expression” as a protected class for purposes of the New York State Human Rights Law’s prohibitions on discrimination against interns. The law went into effect immediately upon signing. The enactment is consistent with other provisions of the New York Human Rights Law that extend protections for gender identity or expression to employees.

COURT & AGENCY NEWS

• Recent legal actions by the Equal Employment Opportunity Commission (EEOC) and the courts underscore the importance of compliance with the Americans with Disabilities Act. In one recent case, the Seventh Circuit held that a change in work schedule to accommodate a commute from home to the workplace may be a reasonable accommodation for a person with a disability when presence at the worksite is required.
• S. Department of Labor (DOL) proposed a rule that would increase the exempt employee salary threshold for “white collar” employees from the current $684 per week to $1,059 per week. The new threshold would translate to an annual minimum salary of $55,068 per year. Additionally, the “highly compensated employee” threshold would rise from $107,432 to $143,988.
• The EEOC has announced that the long-delayed 2022 EEO-1 reporting period will finally open on October 31, 2023. The deadline for filing will be December 5, 2023. Employers with 100 or more employees or federal contractors with 50 or more employees meeting certain criteria are required to file this report annually.

New Laws Enacted 

California Governor Signs Comprehensive Workplace Violence Prevention Law 

In a significant development for California employers, the state legislature has recently passed Senate Bill No. 553, aimed at preventing workplace violence. Governor Newsom signed the bill into law on September 30, 2023. SB 553 imposes comprehensive workplace violence prevention requirements on virtually every employer in the state, setting in motion a series of measures aimed at safeguarding employees. SB553 was previously detailed in the July edition of The Brief, but we now have the final version which will go into effect.

SB 553, introduced by California State Senator Dave Cortese, has gained considerable attention for its potential impact on the state’s workforce. Under this new law, employers will be mandated to establish written workplace violence prevention plans tailored to the specific hazards present in each work area and operation. These plans require all employers with at least one California employee to designate a person responsible for their implementation and lay out clear procedures for reporting workplace violence incidents–and prohibit retaliation against employees who report such incidents.

The law emphasizes the importance of transparency by providing employees with information on how to report violent incidents or concerns without fearing reprisal. It further underscores the need for practical measures to address workplace violence emergencies, including evacuation and sheltering plans appropriate for the worksite.

Beginning July 1, 2024, the law will require employers to maintain a log of all reports of violence or threats, without including personally identifiable information. The hope is that this log could play a pivotal role in tracking trends within organizations and ensuring long-term violence prevention efforts.

Effective training forms a cornerstone of the legislation. Beginning July 1, 2024, employers are required to educate their workforce on their workplace violence prevention plan, which must include training on identifying “red-flag behaviors” and de-escalation techniques to defuse potentially violent situations. Employers will be required to periodically review and update the plan and training to ensure its continued effectiveness.

While the bill’s core provisions become effective July 1, 2024, certain provisions have a delayed effective date of January 1, 2025. Moreover, the bill directs CalOSHA to adopt implementing regulations no later than December 31, 2026. The implementing regulations will likely expand upon and clarify the specifics of the bill’s overarching requirements.

The passage of SB 553 marks a step forward in California’s efforts to protect employees against workplace violence, representing a culmination of negotiations and collaboration between business and labor organizations. Now that it has officially been signed by Governor Newsom, many employers in California will begin preparing for potential changes to their workplace safety protocols, training programs, and incident reporting procedures to ensure compliance with these upcoming requirements.

New York Enhances Protections for Interns: Gender Identity and Gender Expression Added to Non-Discrimination Laws

New York has passed an amendment to its Human Rights Law adding further protections for interns. Senate Bill 7382 was signed into law by Governor Kathy Hochul on September 6, 2023. SB 7382 brings the protections previously provided for interns in line with those already in place for employees. Specifically, the bill adds “gender identity or expression” to the list of protected classes for interns under the New York State Human Rights Law. “Gender identity or expression” was already included as a protected class for employees, but not interns.

Previously, interns were protected against discrimination based on characteristics such as race, religion, sex, and national origin. With the addition of “gender identity or expression” to the list of protected attributes, interns are now explicitly safeguarded against discrimination in these categories, just as their paid counterparts are.

New York employers may wish to review their anti-discrimination policies given these changes to New York’s Human Rights Law.

Court & Agency News

Seventh Circuit Upholds EEOC Case on ADA Accommodations for Commuting to Work

Disability discrimination remains a significant concern for both employees and employers. In recent years, disability discrimination cases have constituted a significant portion of the discrimination charges received by the U.S. Equal Employment Opportunity Commission (EEOC)–second only to retaliation claims. They also account for approximately 36% of all cases brought by the agency.

Several recent EEOC lawsuits and court decisions exemplify the agency’s focus on protecting employees with disabilities. For example, the Seventh Circuit Court of Appeals recently ruled in favor of the EEOC in a case under the Americans with Disabilities Act (ADA) when it held that employees with disabilities may be entitled to reasonable accommodations concerning their commute to work when presence at the worksite is required. The case of centered around an employee with cataracts who requested a schedule change to allow him to leave work two hours early to avoid driving at night. The employer initially accommodated the employee with a temporary work schedule change, however, the company declined to extend this accommodation beyond 30 days. The EEOC filed a lawsuit, alleging ADA violations by the employer.

The Seventh Circuit’s decision in favor of the EEOC emphasized that an employee may be entitled to reasonable accommodation for transportation-related issues “if commuting to work is a prerequisite to an essential job function, such as attendance in the workplace, and if the accommodation is reasonable.” This ruling is expected to influence future ADA accommodation cases, particularly in the context of post-pandemic workplaces where the definition of essential job functions, and the location where work is or can be performed, continue to evolve.

As a best practice, employers may wish to ensure their employees are properly trained and prepared to handle accommodation requests when they arise. 

DOL Proposes Significant Salary Threshold Increase for Overtime Exemptions

The U.S. Department of Labor (DOL) has unveiled a long-anticipated proposed rule that could significantly impact overtime exemptions for “white collar” employees under the Fair Labor Standards Act (FLSA). This rule suggests a substantial increase in the minimum salary requirements for executive, administrative, and professional exemptions, seeking to raise the threshold from the current $684 per week to $1,059 per week, or $55,068 per year. Additionally, the “highly compensated employee” threshold would rise from $107,432 to $143,988.

In addition to the increase in the threshold, the proposed rule includes the introduction of automatic updates to these salary thresholds every three years based on current earnings data, albeit with the option to delay updates under certain economic conditions. The DOL will initiate a public comment period once the rule is published in the Federal Register.

While this is still just a proposed rule, and if adopted it is expected to face legal challenges, this could have a significant impact on employees and employers given the number of employees who potentially will become eligible for overtime pay. Employers may wish to begin discussions now on how such a change would impact their workforce.

EEO-1 Report for 2022 Due December 5, 2023

Employers in the United States with at least 100 employees, or federal contractors with at least 50 employees meeting specific criteria, should take note of a long-anticipated announcement from the Equal Employment Opportunity Commission (EEOC). The 2022 EEO-1 Component 1 data collection process is set to begin on October 31, 2023. Employers will have until December 5, 2023, to file their completed EEO-1 reports.

The EEO-1 Component 1 report, which focuses on demographic data, calls for employers to provide information regarding the ethnicity, race, and gender of their employees. This reporting requirement is used by the EEOC to track adherence to equal employment laws.

The delay in opening the 2022 EEO-1 reporting period was attributed to the EEOC’s pursuit of a federally mandated renewal of the EEO-1 Component 1 data collection process by the Office of Management and Budget (OMB). This renewal was required by the Paperwork Reduction Act (PRA).

Employers are encouraged to keep a close watch on further updates and instructions posted on the EEO-1 reporting website.

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