Last week, New Jersey Governor Phil Murphy signed into law an amendment to the New Jersey Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”) that delays earlier amendments that would have taken effect in July of this year, and excludes COVID-19 related layoffs from the requirements of the act. READ MORE
Posts by: Anna Matsuo
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated their guidance relating to the COVID-19 pandemic on Thursday, addressing several additional FAQ in response to inquiries from the public. In the updated guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EEOC expands on its previous publication issued in March and based on guidance it issued in response to the H1N1 outbreak in March 2009. READ MORE
The New York State Department of Labor (“NYS DOL”) has launched a new webpage dedicated to alerting workers regarding COVID-19 related employment protections and allowing them to submit a complaint online by simply clicking the “File a Complaint” link. The new webpage encourages workers to file a complaint with the NYS DOL if their employers violate any provisions of the state’s new law providing sick leave, paid family leave and disability benefits to employees impacted by mandatory or precautionary orders of quarantine or isolation due to COVID-19, including any violations of Governor Cuomo’s recent Executive Order mandating all non-essential workers to stay home. These violations include being forced to perform work at an employer’s worksite if the employer is a non-essential business or being threatened if an employee does not work at a place other than the employee’s home. It should be noted that the NYS DOL appears to be creating the right to file a complaint on a number of issues that are not explicitly addressed within the legislation or guidance regarding the legislation and it remains to be seen whether the NYS DOL has authority to pursue alleged violations of the legislation for the reasons described below. READ MORE
In what he described as the “most drastic action” he can take, New York Governor Cuomo has ordered all non-essential workers to stay home, in his latest Executive Order 202.08 issued yesterday afternoon. As we reported, Governor Cuomo had previously ordered businesses to reduce their in-person workforces at any work locations by 75%, unless they qualify as an “essential business.” Now, that number has been expanded to New York’s entire non-essential workforce. READ MORE
Update: At approximately 11:00 a.m. EST, Governor Cuomo announced that 100% of the non-essential NY workforce must now stay home. This directive is expected to take effect on Sunday evening March 22. Gov. Cuomo is expected to issue a new Executive Order regarding this directive shortly. Please check back here for updates. READ MORE
New York State enacted the “Women on Corporate Boards Study” on December 30, 2019, with the goal of improving diversity on corporate boards. Effective June 27, 2020, the law requires the New York Department of State and Department of Taxation and Finance to conduct a study on the number of women who serve on boards of directors of companies doing business in New York State. To facilitate the study, the law requires foreign and domestic corporations to report to the Secretary of State the number of directors on their boards and to specify how many of those directors are women as part of the corporation’s filing statement.
The study will analyze the number of women directors and the total number of directors that constitute the board of each corporation, the change in the number of women directors from previous years, and the aggregate percentage of women directors on all boards in New York. The law also provides that the Department of State will publish a report regarding the study on or before February 1, 2022, with a new report required every four years thereafter.
The law is described as a “proactive approach to address historical inequality and end discriminatory practices,” with New York leading the way. In signing the legislation, Governor Cuomo stated, “[f]rom new pay equity laws to strongest-in-the-nation sexual harassment policies, New York is leading the fight for gender equality in the workplace—but our work won’t be done until women are better represented at the highest levels of organizations.” Cuomo further stated that the new study would “help shed light on the problem and guide the development of new policies to ensure more women have a seat at the proverbial table.”
The Growing National Trend in Board Diversity Efforts
New York is not the only jurisdiction to implement corporate reporting aimed at increasing board diversity. Illinois passed a corporate reporting law in August 2019, requiring corporations to include additional board composition information in annual reports submitted to the Secretary of State. The additional required information includes the gender of each board member, various processes for identifying and appointing executive officers, and the corporation’s policies and practices for promoting diversity and inclusion among its board and executive officers. Maryland also enacted reporting requirements effective October 2019, requiring certain corporations to include in their annual reports the number of women serving on the board of directors and the total number of board members.
This legislation follows in the footsteps of California’s first-of-its-kind law requiring women to be represented on boards. As we previously reported, in 2018, California passed a law requiring publicly held corporations based in California to have at least one woman director by the end of 2019. The law also provides that by the end of 2021, corporations with five or more directors on the board must have at least two female board members, and boards with six or more board seats must have at least three women board members. The law—currently being challenged on constitutional grounds—imposes significant penalties for failing to comply and calls for publishing the names of compliant and non-compliant companies.
Legislation to increase board diversity and to require corporations to report board diversity is a growing trend in response to the #MeToo movement. Employers should take heed of the growing interest in legislation aimed to increase board diversity and should remain on watch for developments in the jurisdictions where they operate. Indeed, board diversity has piqued Congressional interest, as exemplified by the House’s passage of the Improving Corporate Governance Through Diversity Act of 2019, which would require public companies to annually disclose the gender, race, ethnicity, and veteran status of their board of directors, nominees, and senior executive officers, and would require the Securities and Exchange Commission to establish a Diversity Advisory Group to study strategies for increasing gender, racial, and ethnic diversity among boards of directors. In addition, some companies are already taking the reins in pressuring businesses to increase board diversity: for instance, Goldman Sachs recently announced that it would not take companies public in the U.S. and Europe if they do not have at least one diverse board director.
In Taylor v. Burlington Northern Santa Fe Railway Company, the Washington Supreme Court recently held that obesity is always an “impairment” under the Washington Law Against Discrimination (“WLAD”). The court held that the WLAD is more expansive than the Americans with Disabilities Act and expressly refused to follow some federal court decisions that found obesity to be a disability only if it is caused by a separate underlying physiological disorder.
Effective May 10, 2020, New York City employers may no longer test prospective employees for marijuana and tetrahydrocannabinols (THC), the active ingredient in marijuana. This bill- which is the first of its kind in the country- makes such testing an unlawful discriminatory practice under the New York City Human Rights Law. READ MORE
In Chance v. Kraft Heinz Foods Company, a Delaware state court recently held that a private cause of action exists under the state’s Medical Marijuana Act (DMMA) and confirmed that the federal Controlled Substances Act (CSA) does not preempt the DMMA. The court’s holdings add to a recent trend of employee-friendly cases dealing with employment claims brought by medical marijuana users. READ MORE
A federal court in Connecticut recently granted summary judgment to a prospective employee on an employment discrimination claim brought under Connecticut’s Palliative Use of Marijuana Act (PUMA). The case, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr. (D. Conn. Sept. 5, 2018) adds to an evolving area of litigation regarding employees who use medical marijuana pursuant to a valid state-approved program. READ MORE