Discrimination & Retaliation

Many thanks to our data privacy colleague, Helena Engfeldt, for co-authoring this article.

Many organizations are proactively advancing diversity and inclusion goals globally to include a focus on recruitment and employee-directed initiatives. These efforts are consistent with organizational values and business goals, even in cases where diversity data collection may have the

On March 24, 2022, Governor Jay Inslee signed into law Engrossed Substitute House Bill 1795, also known as the Silenced No More Act, which expands worker protection in Washington State. More specifically, it prohibits employers from requiring or requesting that workers sign agreements containing nondisclosure or non-disparagement provisions restricting their right to discuss factual information regarding illegal discrimination, harassment, sexual assault, retaliation, wage and hour violations, or any other conduct “that is recognized as against a clear mandate of public policy.”  Washington State’s Silenced No More Act will go into effect on June 9, 2022.

While other states such as California, New York, and Illinois have enacted similar NDA-narrowing laws covering different forms of employment discrimination, Washington’s new law is arguably the most restrictive. For instance, New York, California, and Illinois prohibit nondisclosure provisions related to unlawful discrimination in settlement agreements unless an employee wants such confidentiality. Washington State, however, takes it a step further by barring confidentiality clauses even if requested by the employee (as defined by the Act). As another example, New York law still permits nondisclosure clauses in pre-employment and severance agreements, but Washington’s law applies broadly to any agreement between the employer and “employee” as defined in the Act, including independent contractors not typically protected by EEO laws.

While Washington is the most recent state to pass a law on this subject, it may not be the last. The movement to prohibit secrecy covenants is gaining traction as workers’ advocates push for legislation at both the state and federal level banning the use of such covenants.

Prohibited Agreements

The newly-added section to Chapter 49.44 of the Revised Code of Washington provides that “a provision in an agreement between an employer and employee not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee reasonably believed to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy is void and unenforceable.” The Act broadly defines “employee” to include current, former, and prospective employees, as well as independent contractors; and encompasses all work-related conduct, whether occurring in the workplace or off-site.

Continue Reading Washington State Takes Aim At Workplace NDAs Under Its Silenced No More Act

Employers across the U.S. are requiring employees to return to the brick and-mortar workplace as COVID-19 cases drop, and they are looking forward to having employees work together again face to face.

But employers beware: employees have had little in-person interaction with their colleagues over the past two years, and some employees who were onboarded

Employee Resource Groups (ERGs), or workplace affinity groups, are not new, and in fact they have been around in workplaces since the 1970s when they evolved in response to racial tensions in the US. For years, ERGs mainly hosted networking events and weren’t typically remarkably impactful on the business, but served as a safe space and support network for members. ERGs have come a long way since then, expanding and deepening their influence and impact.

Now, ERGs are typically employee-led, voluntary forums that provide employees with support, and career development, mentorship and networking opportunities. They are often created around shared characteristics or personal traits like ERGs for women employees, members of historically underrepresented racial/ethnic groups, LGBTQ+ employees, veteran employees and more. In recent years, ERGs have expanded to include interest-based groups like working parents and caregivers, the environmentally conscious and mental health advocates. Further, business leaders increasingly recognizing the value ERGs can bring as key strategic partners. In fact, about 35% of companies have added or expanded their support for ERGs since the start of 2020, according to a 2021 study by McKinsey & Co. and LeanIn.org of 423 organizations employing 12 million people.

Why the shift?

This uptick in popularity of ERGs in the workplace is due in large part to the impact of COVID-19, which has amplified the prominence and importance of ERGs. After two years of pandemic-related isolation and a lot of social and political unrest, ERGs are playing an essential role in companies by fostering community, improving employee engagement and building company culture and brand. While it can be difficult to connect with employees feeling distanced by remote work, ERGs are an effective way to give employees a sense of belonging, shared purpose and support. For instance, during the pandemic, ERGs focused on women have shared tools for easing burdens for members suddenly facing new challenges of child-care demands while working from home. Likewise, they’ve given important feedback to help shape company policies and benefits.

Continue Reading DEI Matters: How Employee Resource Groups Can be Your Company’s Strategic Ally

President Biden is expected to sign into law landmark #MeToo legislation, which allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” amends the Federal Arbitration Act (FAA), by narrowing its scope and applicability. The bill’s passage had bipartisan support in both the House and the Senate.

Historically, some employers have implemented arbitration programs that require both the employer and its employees to arbitrate most or all types of employment claims, including claims alleging sexual harassment or sexual assault. Largely in response to the #MeToo movement, which began in late 2017, some states passed laws designed to prohibit or restrict employers from requiring employees to arbitrate sexual harassment or sexual assault claims. For example, in New York, employers are prohibited from requiring the arbitration of sexual harassment claims except where inconsistent with federal law. New York’s prohibition on mandatory arbitration in relation to sexual harassment claims went into effect on July 11, 2018, and it has applied to contracts entered into on or after that date. New Jersey and California have enacted similar laws. New Jersey’s law prohibits any provision of an arbitration agreement that waives a substantive or procedural right or remedy relating to employment discrimination, harassment, and retaliation claims. This law applies to all contracts and agreements entered into, renewed, modified, or amended on or after March 18, 2019. Further, on October 10, 2019, California enacted a law, which prohibits employers from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code.  California’s law applies only to agreements dated January 1, 2020 or after. However, courts have found these statutes to be pre-empted by the FAA.

On February 7, 2022, the U.S. House of Representatives overwhelmingly passed H.R. 4445, 335 to 97. Shortly thereafter, on February 10, 2022, the bill passed the Senate in an unrecorded voice vote.

Continue Reading Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration

With special thanks to our data privacy colleagues Jonathan Tam and Helena Engfeldt for their contributions.

It’s increasingly common for employers to use social media during the hiring process. The temptation is obvious — there’s a wealth of potentially useful information about applicants available online. It’s not unreasonable to wish to use social media to understand a prospective employee’s professional qualifications and skills to determine whether they fit with the criteria for the position. It’s no wonder that a recent survey from The Harris Poll finds that seventy-one percent of US hiring decision-makers agree that looking at candidates’ social media profiles is an effective way to screen applicants. Furthermore, 70% believe employers should screen all applicants’ social media profiles, while the majority (67%) say they use social networking sites to research potential job candidates.

Despite the potential benefits, this sleuthing causes significant heart burn for employment and privacy lawyers and HR professionals. While social media can be a fruitful way to find and recruit candidates, a minefield of legal risks appear when companies use social media during the screening process.

Potential Risks

  • Discrimination! Federal, state and local anti-discrimination laws prohibit discrimination in hiring based on a prospective employee’s protected class. The danger of researching applicants using social media is that you may become aware that the applicant belongs to a protected category – something that through the general application process you otherwise would be unaware of. And, you can’t put the genie back in the bottle. If a recruiter or hiring manager has accessed this data, it is difficult to prove that they were not influenced by it in their hiring decision.


Continue Reading Guardrails For Using Social Media During The Hiring Process

California has always kept employers on their toes when it comes to changing employment laws. This year is no exception. Here is our roundup of the top 10 developments California employers need to know. (And scroll down to see what’s on the horizon!)

  1. Minimum Wage Increases

Effective January 1, 2022, the California state minimum wage increased to $15.00 per hour ($14.00 per hour for employers with 25 or fewer employees). As a result, the minimum monthly salary for California exempt employees increased to $5,200, or $62,400 on an annual basis (which is two times the state minimum wage for full-time employment).

For computer software employees, their minimum hourly rate of pay increased to $50.00 and the minimum monthly salary increased to $8,679.16 ($104,149.81 annually).  And for licensed physicians and surgeons, the minimum hourly rate of pay increased to $91.07 .

Some counties and cities have imposed their own higher minimum wage rates, including Los Angeles, where a $15 minimum wage for all employers took effect in July 2021. The following local minimum wages took effect on January 1, 2022, regardless of employer size:

Continue Reading Top 10 California Employment Law Updates for 2022

Special thanks to Melissa Allchin and Lothar Determann.

Our California Employer Update webinar is designed to ensure that California in-house counsel are up to speed on the top employment law developments of 2021 and are prepared for what’s on the horizon in 2022.

With our “quick hits” format, we provide a content-rich presentation complete

As companies call employees back to the physical workplace, more employers are electing to implement mandatory vaccination policies to keep employees safe amidst the spread of the COVID-19 Delta variant. In turn, some employees are seeking accommodations, asserting that disabilities or religious beliefs prevent them from being vaccinated. Employers should develop consistent standards for handling

Pressure is mounting on U.S. and multinational employers to require COVID-19 vaccines for employees, as the Delta variant spreads voraciously, spiking infections and hospitalizations across the country and forcing employers to once again shutter worksites or change their workplace safety protocols. But can (and should) employers mandate vaccination?

Vaccine mandates received strong support on Thursday, July 29 when President Biden announced that all civilian federal employees and onsite contractors either must be vaccinated or submit to regular testing, social distancing, mask requirements, and restrictions on travel. The same day, the U.S. Treasury Department released a policy statement directing state and local governments to use funds from the $350 billion American Rescue Plan to incentivize vaccines by offering $100 to individuals who get vaccinated.

Separately, more than 600 universities have announced mandates for students or employees. And state and local governments have joined in, with California and New York City announcing mandates this week for government employees and certain healthcare workers, and the federal Department of Veterans Affairs announcing that frontline VA health care employees must get vaccinated or face termination.

Large employers are joining the fray, with global technology companies, financial institutions, healthcare systems, retailers, transportation companies and media companies recently announcing that vaccination will be required for everyone in their workplaces.

So can private employers adopt mandatory vaccination policies? What follows is a framework for understanding whether such an approach is permissible both in and outside the US, as well as some of the key considerations for such policies.

Bottom line: in the US, private employers can legally mandate vaccines under federal law, subject to the legal considerations outlined below. State law, however, differs by jurisdiction, with some states authorizing vaccine mandates while at least one has banned them.  For illustrative purposes, we discuss California law in the framework below.


Continue Reading Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers