Earlier this year, we saw the #MeToo movement spur action by Congress and state governments to enact legislation enhancing protection for victims of sexual harassment.

For example, in December 2017, Congress introduced legislation, known as the Ending Forced Arbitration of Sexual Harassment Act, proposing to prohibit employers from using arbitration as a means to resolve sexual harassment disputes. Since its introduction, the legislation has gained the support of every attorney general in the U.S.

Congress has continued its efforts to curtail the use of arbitration for sexual harassment claims. In October, Jerrold Nadler (R-N.Y.) and Bobby Scott (D-Va.) introduced in the House the Restoring Justice for Workers Act. The proposed legislation has the backing of 58 Democratic co-sponsors and looks a lot different than some earlier bills.

The groundbreaking aspect of the Restoring Justice for Workers Act is that it would prohibit companies from requiring employees to sign arbitration agreements for any type of dispute, not just sexual harassment claims. Specifically, as proposed, the new law would prohibit any predispute agreement requiring arbitration of employment disputes and would also prohibit postdispute agreements to arbitrate unless the agreement is obtained without coercion or condition of employment-related benefit or privilege.

The new bill also forbids retaliation against employees who refuse to arbitrate employment claims and would amend the National Labor Relations Act (NLRA) to ban agreements that restrict an employee's right to bring class or collective actions involving employment claims. This would effectively reverse Epic Systems.

2019 Essential Handbook Updates

The past year has been filled with many changes in employment laws, particularly on state and local levels, and many of these changes require (or prohibit) specific language in employment policies.

Federal Changes

Although federal legislative developments were slow in 2018, some important federal changes that require that employers update their handbooks.

Earlier this year, National Labor Relations Board (NLRB) General Counsel issued a memorandum about the NLRB's new approach to cases charging that employee work rules or employment policies unlawfully interfere with employees' rights under the National Labor Relations Act (NLRA). While the NLRB's memo generally provides employers with a bit more flexibility in their employment policies, employers (or their legal counsel) should be aware of the three categories the NLRB created to classify employment policies: (1) rules that are generally lawful to maintain, (2) rules warranting individualized scrutiny and (3) rules that are unlawful to maintain.

In addition, in August 2017, the EEOC filed a lawsuit against a leading cosmetics company in the U.S. District Court for the Eastern District of Pennsylvania, alleging that the company's parental leave policies provided fewer parental leave benefits to male employees as compared to female employees in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.

The case arose after the company offered only two weeks of child-bonding leave to a new father after rejecting his request for the six weeks of child-bonding leave it offered to new mothers. The lawsuit sought relief for not only the single affected male employee but also for other male employees who were denied equal parental leave benefits because of their sex. The EEOC sought back pay, compensatory damages, punitive damages and injunctive relief. In July 2018, the EEOC and the company settled the lawsuit for a $1.1 million payment to a class of more than 200 male employees and entered into a consent decree that required the company to stop treating fathers in a discriminatory manner.

This case is a mandate for employers that provide paid parental leave to female employees for child-bonding (as compared to leave provided as a result of pregnancyrelated physical or medical conditions) to also provide the exact same child-bonding leave to male employees. It also dictates that employers that distinguish between primary and secondary caregiver leave in their parental leave policies in an attempt to promote gender neutrality need to stop doing so if the distinction results in differential treatment of male and female employees with respect to child-bonding leave. Employers nationwide should ensure that their parental leave policies are in line with the EEOC's guidance on this topic.

State and Local Changes

State and local lawmakers surely picked up the slack with respect to employment law developments in 2018. Many new state and local laws enacted in 2018 have already taken effect; many others take effect in 2019. These developments cover a variety of topics, including legally protected time off (i.e., paid family leave and sick leave) and other accommodations, sexual harassment prohibitions in light of the #MeToo movement, transgender discrimination protections, pay equity, and medicinal and recreational marijuana use.

Just a few examples of state/local changes follow.

  • New York Paid Family Leave Law requirements: This law went into effect on Jan. 1, 2018, and requires private employers to give eligible employees leave and partial payment to bond with a new child, care for a close relative who is seriously ill, or help relieve pressure when certain family members are called to active military service. Effective Jan. 1, 2019, the leave amount increases from eight to 10 weeks, and the required pay during leave increases from 50 to 55 percent of the employee's average weekly wage (or the state average weekly wage, whichever is less). New York employers should ensure that any related changes are made in their policy handbooks.
  • Westchester County Local Law 10623: Effective April 10, 2019, employers in Westchester, New York, will be required to allow eligible employees to earn one hour of paid sick time for every 30 hours worked, up to 40 hours per year. Other jurisdictions nationwide have similar sick leave laws that are scheduled to go into effect at some point during 2019 (e.g., San Antonio, Texas, and Michigan). Many other sick leave laws went into effect or were amended in 2018 (e.g., New York City's Earned Safe and Sick Time Act and New Jersey's Paid Sick Leave Act). Employers should ensure that all such sick leave laws are properly addressed in their policy handbooks and that the minimum policy requirements are being met.
  • As of Oct. 15, 2018, New York City employers with four or more employees are now required to engage in a "cooperative dialogue" with a person who may be entitled to a workplace accommodation based on legally protected reasons, such as religion, disability, pregnancy, childbirth or related medical conditions, or for the needs of a victim of domestic violence, sex offenses or stalking. The cooperative dialogue resembles the "interactive process" that 8 most employers are familiar with under the Americans with Disabilities Act, but as noted above, the New York City law applies to more than disability-related accommodations and, importantly, requires employers to document the cooperative dialogue process. Employers should update their reasonable accommodation policies in accordance with any such applicable state or local laws.
  • New York's Sexual Harassment Law: Effective Oct. 9, 2018, employers are required to issue policies that comply with the new state legal requirements. The policy should include (among other things): a comprehensive definition of "sexual harassment"; examples of sexual harassment; information regarding reporting sexual harassment both internally and to the New York State Division of Human Rights, the Equal Employment Opportunity Commission and local agencies; available remedies; a complaint form for employees to report sexual harassment; and an anti-retaliation provision. These requirements should certainly be included in any 2019 handbook updates that apply to New York employees. This will likely be a big area for change in other jurisdictions in light of the ongoing #MeToo movement.
  • Massachusetts Statute 2016, c. 177, which took effect July 1, 2018, includes several components to boost fairness in hiring and compensation. Among other things, it prohibits employers from preventing workers from disclosing or discussing salary information about their earnings or those of their colleagues. Although we have been advising our clients for years not to prohibit workers from disclosing or discussing salary information about their earnings or those of their colleagues, in certain states such as Massachusetts, the law now expressly addresses this topic. Employers should ensure that they do not have written policies prohibiting such discussion among employees.
  • Legalization of medicinal and/or recreational marijuana use: With medicinal and/or recreational marijuana use now legal in more than half of the states in the U.S., other states, including Michigan, Missouri and Utah, are following suit in the coming weeks and in 2019. Although federal and state laws conflict concerning marijuana usage, employers in states where marijuana use is permitted should review and update their drug and alcohol policies. Employers may still be able to prohibit the use of marijuana within the workplace, but they should generally distinguish between the use of marijuana for medical purposes and recreational purposes, outline the disciplinary process to be followed if an employee possesses or uses recreational marijuana while at work, and explain how and to what extent they will accommodate an employee who is medically permitted to use marijuana – the requirements of which all vary by state.

More of the same is likely coming down the pike as 2019 unfolds – more state family leave law requirements, more state/local sick leave laws, more accommodations laws, and certainly more policies arising out of the #MeToo movement (i.e., state/local sexual harassment and pay equity protections). We also anticipate continued marijuana legalization for both recreational and medicinal use. In addition, we foresee the need for more remote work policies to account for the growing number of remote workers. All of these will continue to impact policies and procedures as 2019 unfolds. Employers should ensure legal compliance with all of their written employment policies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.