Skip to main content
Article | FINEX Observer

Don’t forget pre-COVID-19 employment updates: Are your policies up to date?

Financial, Executive and Professional Risks (FINEX)
N/A

May 12, 2020

Employers should continuously review their policies and procedures to ensure they include the most up to date laws within each jurisdiction.

In a world constantly in flux, it is imperative to keep apprised of regulatory changes that may affect your organization’s employment practices. During the COVID-19 global pandemic several new laws have been implemented (albeit some are temporary). However, it is important not to forget the many new laws that were implemented prior to the pandemic. California led the pack with passing several new and expanded regulations that may be viewed as more employee friendly (effective January 1, 2020). However, California is not alone. Other states, starting with New York, have followed California’s lead in many respects. While there have been a number of new laws implemented, below we provide a high-level outline of only some of the most significant updates and/or clarifications in California and New York.

California updates

Assembly Bill 5 (AB 5): Addresses Independent Contractor Status

This bill has expanded the strict ABC test to determine whether workers are considered employees or independent contractors. The test provides that a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor (unless the hiring entity demonstrates that several conditions are satisfied and/or meets exemptions). 

Assembly Bill 778 (AB 778): Sexual Harassment Training (Clarification)

Existing regulation SB 1343 required that by January 1, 2020, employers with five or more employees provide at least two hours of sexual harassment prevention training to supervisory employees, and at least one hour of sexual harassment prevention training to nonsupervisory employees within six months of their assumption of a position. The current bill expands the compliance date for Sexual Harassment training to January 2021. Further, an employer who has provided this training in 2019 is not required to provide it again for another two years.

Assembly Bill 707 (AB 707): Failure to Timely Comply with Arbitration Fee Provisions

This bill institutes penalties (including fees and costs) for failure to comply with an arbitration agreement. It states that any drafting party to an arbitration agreement that fails to pay the fees needed to commence or continue arbitration (within 30 days after fees are due), will essentially have materially breached the agreement. Employees will also have remedies such as moving to Court or compelling Arbitration. 

Assembly Bill 749 (AB 749): No-Rehire Clauses

This bill bars employers from including no-rehire clauses in any agreement to settle an employment dispute with an “aggrieved person” – this allows workers to reapply for jobs with that company, parent company, subsidiaries and affiliates. There are, however, built in exceptions. This new bill has the potential to lead to retaliation claims.

Assembly Bill 9 (AB 9): Statute of Limitations for Filing Complaints with the California Department of Fair Employment 

The time frame for filing a complaint under the Fair Employment Housing Act with the Department of Fair Employment and Housing (DFEH) was extended from one year to three years (several exceptions apply).

Assembly Bill 142 (AB 142): Lactation Accommodation Requirements

Employers are now required to provide an employee break for lactation as well as specific accommodations including a clean and safe room. Employers must also develop and implement a policy regarding lactation accommodations.

*There are some exceptions for employers with less than 50 employees

Assembly Bill 188 (AB 188): Race Discrimination Expanded to Traits (Crown Act)

This bill expands the FEHA’s definition of race so that workplace dress codes/policies may not prohibit hairstyles historically associated with race (hair textures and other protective hairstyles). If policies are in violation, they will be found to discriminate based on race.

New York updates

Assembly Bill A08421: Changes to Sexual Harassment Standards and Defenses

This bill provides several changes. The highlights are as follows:

  • The New York State Human Rights Law (NYSHRL) is now applicable to all employers, regardless of size.
  • Harassment is expressly prohibited based on any protected characteristic, not just sexual harassment.
  • The “severe and pervasive” standard for New York State is removed. Under the new standard in New York, harassing conduct is defined as “any conduct that subjects an employee to inferior terms, conditions or privileges of employment because of an individual’s membership in one or more of the protected categories.”
  • The Faragher-Ellerth defense is removed, which provided a defense to employers if they had procedures in place for employees to file complaints, and the employee did not file a complaint.
  • NYSHRL is amended to prohibit mandatory arbitration and non-disclosure agreements for all claims of discrimination or harassment.
  • The statute of limitations is extended from one year to three years for sexual harassment administrative claims brought before the New York State Division of Human Rights.
  • It is unlawful for an employer to permit sexual harassment of a “non-employee” in the work place. Non-employees include “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”
  • All New York employers must maintain a sexual harassment policy that meets the state’s minimum standards. Employers must also provide sexual harassment training to all employees at least once a year and in the employee’s primary language.

Senate Bill S.6549: Salary History Requirements

Similar to the New York City bill, this bill prohibits the use of prior salary for determining salary and employment.

Senate Bill S.6209: Clarification of “Race” Discrimination

This bill clarifies that race discrimination under NYSHRL includes “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

Senate Bill S.5248-B: New York State Equal Pay

This law broadens the standard for gender-based pay equity from “equal work” to “substantially similar work”. It also extends the protections of the equal pay law to all protected classes, not just gender.

Senate Bill S.1047: GENDA - New York State Gender Expression Non-Discrimination Act

Under this law, it will be unlawful for an employer to refuse to hire, fire or discriminate against an employee because of their gender identity or expression.

New York City Intro 1445-A: Marijuana Testing Ban

Under this law, in New York City it will be considered a discriminatory practice to require an applicant to submit to a test for marijuana or THC as a condition of their employment. Note that certain jobs are exempted from this law.

New York City Int. No. 863-A: Expansion of Protected Classes

New York City’s Human Rights Law has been expanded to include “sexual and reproductive health decision” to the list of protected characteristics. This means that an employer is prohibited from discriminating against an employee for any sexual and reproductive health decisions, which include things like fertility-related medical procedures, family planning services and counseling, etc.

New York City Local Laws 185 and 186: Expanded Lactation Laws

In New York City, employers must provide a lactation room and refrigerator for breast milk reasonably close to the employee’s workspace. In addition, employers must have a written policy stating that employees have the right to request a lactation room and the process for doing so.

As the workplace continues to evolve, employers should continuously review their policies and procedures to ensure they include the most up to date laws within each jurisdiction. The employment practices liability insurance market continues to harden, and in such times having up to date and comprehensive policies is imperative. In conjunction with updating the policies and procedures it is recommended to continuously communicate these changes to employees, particularly managers.

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed subsidiaries of Willis North America Inc., including Willis Towers Watson Northeast, Inc. (in the United States) and Willis of Canada, Inc.

Contacts

Talene M. Carter
Employment Practices Liability Thought & Product Leader

Lainee B. Beigel
Executive Risk Practice

Contact Us