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In Raines v. U.S. Healthworks Medical Group, the California Supreme Court expanded the definition of an “employer” under the state’s discrimination statute to include certain third-party business entities that perform employment-related functions on behalf of employers. These agents may now be deemed “employers” such that they can be directly liable for employment discrimination under the Fair Employment and Housing Act for certain activities that they carry out on behalf of employers.

Overview of Raines

The Raines‘ plaintiffs were job applicants who received offers of employment that were conditioned on the successful completion of pre-employment medical screenings conducted by a third-party company that used automated decision-making. Plaintiffs alleged that the screening form contained intrusive questions regarding their medical history that violated FEHA. They brought claims against their employers, as well as the third-party provider that conducted the medical screening. The question for the Court was whether business entities acting as agents of an employer, can be considered “employers” under FEHA and held directly liable for FEHA violations caused by their actions.

The Court examined the plain language in FEHA’s definition of “employer” and concluded that the definition did indeed encompass third-party corporate agents like the medical provider in his case. FEHA defines an employer as “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly.” Here, the Court reasoned, recognizing the medical provider as an agent of the employer extended liability to the company most directly responsible for the FEHA violation.…

Continue Reading Automated Decision-Making and AI: California Expands FEHA Liability to Include Third-Party Business Agents of Employers

Today, California Attorney General Bonta announced an “investigative sweep” through inquiry letters sent to California employers. In the letters, information on California Consumer Privacy Act (CCPA) compliance is requested specifically with respect to the personal information of employees and job applicants.

The Attorney General noted “we are sending inquiry letters to learn how employers are…

Since July 1, 2023, the California Privacy Protection Agency has the power to bring administrative enforcement actions under the California Consumer Privacy Act (CCPA) (see our post on California Privacy Law Action Items for Employers).

While a June 30, 2023 ruling by the Sacramento County Superior Court stays enforcement of the March 29, 2023…

Employers can be liable for sexual harassment under federal law (Title VII of the 1964 Civil Rights Act) if “sexually explicit” or “aggressive” music is played in the workplace, the Ninth Circuit recently ruled in Sharp v S&S Activewear, L.L.C, 9th Cir. (June 2023).

The Ninth Circuit’s ruling directly applies to employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. However, given the federal Equal Employment Opportunity Commission’s amici brief in support of the plaintiffs’ position and the Court’s reliance on opinions from the Second, Fourth, and Sixth Circuits that held that sights and sounds that pervade the work environment may constitute sex discrimination, it is likely other circuits may follow suit.…

Continue Reading When Harmony Becomes Hostile: The Ninth Circuit Notes that Offensive Music in the Workplace Can Constitute Harassment

Special thanks to co-authors Cynthia Cole, Heiko Burow, Inez Asante and Alysha Preston.

In June, New York Senate Bill S5640 unanimously passed both houses of the NY legislature. It seeks to enact restrictions on invention assignment agreements used in the employment. S5640 now moves to the desk of Governor Kathy Hochul and if signed into law, it will amend the New York Labor Law effective immediately.…

Continue Reading Creating IP in New York? Watch out! Your employee may soon own more than you think

Just after the fireworks’ finale, New York City’s Department of Consumer and Worker Protection will begin enforcing its new ordinance regulating the use of automation and artificial intelligence in employment decisions. The DCWP recently issued a Notice of Adoption of Final Rule establishing that enforcement efforts will begin July 5, 2023.

Here are three reasons this matters

  1. The new law requires time-sensitive, significant actions (read: audits, notices and public reporting) from employers using automated employment decisions tools to avoid civil penalties;
  2. Company compliance will require a cross-functional response immediately, so it’s time to get your ducks in a row; and
  3. Since the City’s law is (mostly) first-of-its-kind, it is likely a harbinger of things to come for employers across the country and it could be used as a framework in other cities and states.

The law in a nutshell

Local Law 144 prohibits employers and employment agencies from using an automated employment decision tool unless the tool has been subject to a bias audit within one year of the use of the tool, information about the bias audit is publicly available, and certain notices have been provided to employees or job candidates. Violations of the provisions of the law are subject to a civil penalty.…

Continue Reading Enforcement of New York City’s Artificial Intelligence Rule Begins July 5, 2023: Here’s What Employers Need to Know

As most California employers know by now, Senate Bill 1162 requires private employers of 100 or more employees (with at least one employee in California) to report pay and demographic data to the California Civil Rights Department (CRD) (formerly the Department of Fair Employment and Housing). Complicating matters, the law was amended to add a requirement to report data regarding workers hired through labor contractors.  

The deadline for submitting pay data reports is May 10. If you are having trouble gathering information from labor contractors, you are not alone. So, if it looks like you might be late on the labor contractor employee report, we recommend seeking an extension from CRD through the portal ASAP. The good news is that extensions are available, but only for the labor contractor reports, and only through the portal. (Link here.) Requests for an extension must be submitted on or before May 10.…

Continue Reading Last Call for Compliance: CRD Pay Reporting Deadline May 10, But Extensions Available

The Road Ahead Following the April 10 End of the National Emergency

We have all grown accustomed to hand sanitizer, 6-feet distance markings in hallways, face masks–and the back and forth of surging and waning COVID-19 levels in the workplace and the community. But with President Biden’s April 10 termination of the COVID-19 national emergency, can these pandemic mainstays–and employers’ pandemic policies and procedures–finally be relegated to a distant memory? Should they be? As Dr. Anthony Fauci said in a recent interview, “Everybody wants this outbreak behind us.”

Mapping the Road Forward

With little fanfare, on April 10, President Biden quietly signed a GOP-led resolution terminating the COVID-19 national emergency. Separately, on May 1 the Biden Administration announced an end to the federal COVID-19 vaccination requirements for federal employees, federal contractors, and international travelers on May 11, the same day the COVID-19 Public Health Emergency ends. The US Department of Health and Human Services and the US Department of Homeland Security also announced they will start the process to end vaccination requirements for Head Start educators, CMS-certified healthcare facilities, and certain noncitizens at the land border.

So can employers throw out all of their COVID-19 policies and procedures? Not quite.…

Continue Reading Can US Employers Finally Leave COVID-19 in the Rearview Mirror?

California legislators met on April 11, 2023 to discuss a proposed overhaul of employment-related criminal background checks. Simply put, if the Fair Chance Act of 2023 (SB 809) is passed into law, California will have the most restrictive criminal background check law in the country, and will significantly limit the way California employers can vet applicants for employment. Under existing state law, California employers may conduct a criminal background check for most positions only after making an initial offer of employment, and they may make adverse employment decisions based on criminal history only after conducting an individualized assessment that considers the nature of the offense and the duties of the job. While these existing restrictions are significant in their own right, the proposed new law will effectively eliminate criminal history consideration in most circumstances, allowing legislators to further reduce barriers to employment for people with criminal histories.

The Fair Chance Act will, among other things, “make it an unlawful employment practice to take adverse action against an employee or discriminate against an employee in the terms, conditions, or privileges of their employment based on their arrest or conviction history.” SB 809. In essence, the proposed law will all but ban employment-related criminal background checks, except for positions for which such checks are authorized or required by statute. And in the limited circumstances where criminal history checks are permitted, the Fair Chance Act will require employers to post a clear and conspicuous notice informing applicants and employees of their rights. The new law also will impose on employers additional document and data retention obligations for completed background checks.…

Continue Reading California Seeks to Ban Most Criminal Background Checks

New Jersey may have started a trend. As of April 10, covered New Jersey employers must now comply with new requirements under the New Jersey mini-WARN Act (see our blog here). New York and California are giving chase, with proposed amendments to New York State’s WARN Act regulations, New York State’s WARN Act, and California’s WARN Act. And New York employers should take note: New York’s WARN Portal is set to go live this month.

Proposed Amendments to NYS WARN Regulations–And a New NYS WARN Portal

The New York State Department of Labor has proposed amendments to the New York State WARN Act (“NYS WARN”) regulations that are intended to account for the post-pandemic workforce, including clarifying how remote work impacts NYS WARN compliance and simplifying language to ensure employers understand their obligations under the law. The Department of Labor is accepting comments to the proposed regulations until May 30, 2023. 

Key items in the proposed amendments to the NYS WARN regulations include:

  • Remote employees included in threshold count: The employers covered by NYS WARN has been expanded to include any employer who employs 50 or more full-time employees, who work at the single site of employment plus individuals that work remotely but are based at the employment site, which may include remote employees in New York as well as other states.
  • Certain notices must be provided electronically: Notices being sent to the New York State Department of Labor Commissioner (“Commissioner”) must be provided electronically and are no longer required to have original signatures.
  • Notice must include additional information: The notice to the Commissioner must include more detailed information about the affected employees, including telephone numbers, job titles, and whether they are paid on an hourly, salary or commission basis. The notice to affected employees must include any other information relevant to their separation, such as information related to any financial incentives an employee may receive if they remain employed by the employer until the effective date of the employment loss, as well as available dislocated worker information.
  • The exceptions for notice are changing:
    • Faltering company exception reduced: The faltering company exception will apply only to plant closings, and will no longer apply to mass layoffs, relocations or reductions in hours.
    • Unforeseeable business circumstances exception expanded: The unforeseeable business circumstances exception will be expanded to expressly include in certain circumstances a public health emergency (including a pandemic) or a terrorist attack.
    • Exception to notice requires determination by Commissioner: The 90-day notice period can be reduced in limited circumstances (including under the faltering company, unforeseeable business circumstances, and natural disaster exceptions) only if:
      • The employer submits a request for consideration for eligibility of an exception to the Commissioner within 10 business days of providing the required notice under NYS WARN to the Commissioner (unless the Commissioner grants an extension);
      • The employer provides a reason for reducing the notice period in addition to any other documents the Commissioner may require; and
      • The Commissioner determines that the employer has established all of the elements of the claimed exception.
  • The calculation of back pay is being clarified for hourly employees: The calculation to be used to determine the average rate of compensation and final rate of compensation for hourly employees is clarified. Such calculation uses the number of hours worked instead of the number of days worked. The days worked method of calculation should still be used for non-hourly employees.
  • The use of payment in lieu of notice is being clarified: Liability for an employer’s failure to give the required notice to employees under NYS WARN will be reduced by amounts paid to an employee in lieu of notice, except where the following conditions are met (then such payments will be considered wages for the notice period):
    • There is an employment agreement or uniformly applied company policy that requires the employer to give the employee a certain amount of notice before a layoff or separation;
    • The employee is laid off without the required notice; and
    • The employer pays the employee an amount equal to the employee’s wages and any benefits for the required notice period.

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Continue Reading Employer WARN-ING: Potential Changes to New York’s and California’s WARN Acts Barreling Down the Turnpike