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Despite the hubbub, a new California law purportedly banning mandatory employment arbitration agreements does not completely change the game, and federal law still allows employers to use such agreements.

On October 10, 2019, Governor Newsom signed AB 51 (to be codified as Cal. Lab. Code § 432.6(c)). The new law on its face prohibits employers from requiring California employees to arbitrate certain employment disputes, even if the employees are given the option of opting out of arbitration. More ominously, AB 51 criminalizes retaliation against employees who refuse arbitration, among other remedies.

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As previewed in our prior blog post, earlier this month Governor Gavin Newsom signed the “CROWN Act” (Create a Respectful and Open Workplace for Natural Hair) into law, making California the first state to ban discrimination against natural hairstyles associated with race. The CROWN Act takes effect on January 1, 2020.
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Beginning in 2020, Nevada and New York City will restrict an employer’s ability to screen job applicants for marijuana use. As marijuana legalization spreads across the country, other jurisdictions will likely follow suit. Employers, especially those that recruit in Nevada and NYC, should review their drug testing and hiring practices now to stay compliant.

What it means for you

Marijuana use by employees is for the first time protected in some jurisdictions, increasing the risk of discrimination claims by applicants and employees. Employers that hire in Nevada and NYC should consider whether their current recruitment and hiring practices may unlawfully discriminate by screening out applicants who have used marijuana. Here is an overview of the new laws:

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Baker McKenzie’s Mike Leggieri and Robin Samuel were recently interviewed on how best to avoid class arbitration in light of the US Supreme Court April 2019 Lamps Plus, Inc. v. Varela decision.

In Lamps Plus, the Supreme Court held that when an arbitration agreement is ambiguous on the availability of class arbitration, courts…

The California State Assembly passes a Bill that codifies the infamous “ABC” test for independent contractor determination — will the Senate follow suit, and will the Governor sign the new legislation into law?

The New Bill

On May 29, 2019, by a 55-11 vote, the state Assembly passed AB 5, a bill that would codify the California’s Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court.  …
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The Office of Federal Contract Compliance Programs has updated the National Labor Relations Act rights poster that federal contractors and subcontractors are required to display under Executive Order 13496. The changes are minor, consisting of a new telephone number for the NLRB and hearing impaired contact information. But government contractors and subcontractors should replace their…

[With special thanks to our summer associate Lennox Mark for his contribution to this post.]

From coast to coast, state and local governments are debating and enacting legislation to broaden workplace protections for employee dress and grooming practices. And not surprisingly, employee complaints regarding employer grooming policies — that such policies contribute to discrimination by unduly burdening certain racial characteristics, religious beliefs or health conditions — are on the rise.

In February 2019, the New York City Commission on Human Rights issued a statement of legal enforcement guidance expanding the definition of prohibited race discrimination to include discrimination based on hairstyle. The Commission explained that workplace “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people generally violate [local law].” By expressly including hairstyle as a protected characteristic, the Commission effectively created a new legal claim for Black employees who suffer adverse employment actions because their natural hairstyles fail to comport with previously accepted workplace rules.

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Last Wednesday, the US Supreme Court issued yet another pro-employer arbitration decision.

In a 5-4 split, the Supreme Court held in Lamps Plus Inc. v. Varela that a party cannot be compelled to submit to a class arbitration (as opposed to the arbitration of individual claims) unless the arbitration agreement explicitly authorizes class proceedings in arbitration.

In doing so, the Supreme Court reiterated two key aspects of its Federal Arbitration Act jurisprudence:

  1. Arbitration is a matter of consent, not coercion; and
  2. Class arbitration is fundamentally different than the traditional individualized arbitration envisioned by the FAA.

Because, according to the majority opinion, class arbitration so fundamentally changes the nature of arbitration, a party can only be forced to litigate class claims in arbitration under the FAA if there is a contractual basis for concluding that the party agreed.

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Although federal and state laws have prohibited employment-related sexual harassment and sex discrimination for decades, the #MeToo movement inspired several states and local jurisdictions to pass laws targeting sexual harassment in the workplace more directly. The new laws address issues such as mandatory anti-harassment training, workplace policies, confidentiality in settlement agreements, and the arbitrability of…

As we previously discussed here, the United States Supreme Court’s May 2018 decision in Epic Systems v. Lewis was a clear win for employers that seek to avoid the expense and disruption of class litigation by resolving disputes individually through binding arbitration. As explained by the Supreme Court in AT&T Mobility LLC v. Concepcion, “[i]n bilateral arbitration, parties forego the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.”

For employers looking to take advantage of the benefits of individual arbitration, there are several drafting nuances to consider before rolling out or updating existing arbitration agreements.

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