Workforce Bulletin

The U.S. Court of Appeals for the Second Circuit issued a decision in Slattery v. Hochul, reversing the dismissal of a First Amendment challenge to New York Labor Law §203-e (also referred to as the “Boss Bill”). The Boss Bill prohibits employers from taking adverse employment actions against employees based upon their reproductive health decisions, including “a decision to use or access a particular drug, device or medical service,” and also forbids employers from “accessing an employee’s personal information regarding the employee’s . . . reproductive health decision making.” The term “reproductive health decision making” necessarily would include an employee’s decision to have an abortion or use contraception. The Boss Bill, unlike Title VII of the Civil Rights Act, does not contain an exemption for religiously affiliated organizations.

As featured in #WorkforceWednesday:  This week, we analyze how employers can benefit from artificial intelligence (AI) innovations while remaining in compliance with federal regulations:

AI is evolving faster than ever before. How can employers prepare for the future of AI in the workplace? Epstein Becker Green attorneys Alexander J. Franchilli and J.T. Wilson III tell us how looming federal regulations and diversity, equity, and inclusion concerns are creating a turbulence of compliance and innovation.

In recent years, there has been a growing movement to ban discrimination against natural hairstyles. This movement was cultivated by the introduction of the Creating a Respectful and Open World for Natural Hair (“CROWN”) Act, which seeks to prohibit discrimination in the workplace based on hair texture and protective hairstyles commonly associated with an individual’s race, such as afros, braids, twists, cornrows, tight coils, bantu knots, and locs.

On May 17, 2023, Michigan Governor Gretchen Whitmer signed SB 147 into law, amending the Elliot-Larsen Civil Rights Act (“ELCRA”) to expand its protections from workplace discrimination to those who have abortions.  The law is expected take effect on March 31, 2024, ninety-one days after final adjournment of the Michigan Legislature’s 2023 Regular Session and will apply to any Michigan employer with one or more employees. This is the second time this year that the Michigan Legislature has amended ELCRA, joining SB 4 in early March 2023, which amended ELCRA to add protections for individuals based on their sexual orientation, and gender identity or expression.

As featured in #WorkforceWednesday:  This week, we recap the continued rise in unfair labor practice (ULP) charge filings reported by the National Labor Relations Board (NLRB); New York City’s new prohibitions against size discrimination in employment, housing, and public accommodations; and Florida’s forthcoming E-Verify requirements for public and private employers with 25 or more employees.

It’s time for covered employers to update their Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) posters.

The U.S. Department of Labor (DOL) has issued an updated FLSA Minimum Wage Poster to reflect covered employers’ new lactation accommodation obligations under the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

Chicago has amended its “Ban the Box” Ordinance (the “Ordinance”) to further align with Illinois law. The Ordinance, which originally took effect in 2015, provides protections for both prospective and current employees. Historically, the Ordinance restricted when Chicago employers with fewer than 15 employees and certain public employers could inquire about or consider an individual’s criminal record or criminal history. The new amendments, which took immediate effect, expand application of the Ordinance to almost all Chicago employers and impose significant new assessment and notice requirements thereon. The amendments also expressly incorporate into the Ordinance provisions from the Illinois Human Rights Act (IHRA) that prohibit employers from inquiring about or considering an individual’s arrest record. The amendments did not modify the Ordinance’s penalties, however, so employers are still liable for fines of up to $1,000 per violation, license-related disciplinary actions, and potential discrimination charges before the Chicago Commission on Human Relations.

Since late October 2021, when the Equal Employment Opportunity Commission (EEOC) launched its Initiative on Artificial Intelligence (AI) and Algorithmic Fairness, the agency has taken several steps to ensure AI and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws that the agency enforces, including Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Among other things, the EEOC has hosted disability-focused listening and educational sessions, published technical assistance regarding the ADA and the use of AI and other technologies, and held a public hearing to examine the use of automated systems in employment decisions.

On May 3, 2023, Maryland Governor Wes Moore signed into law SB 828, which amends the state’s Family and Medical Leave Insurance Program (the “Program”) that was originally established in April 2022. As we previously reported, the Program generally provides eligible employees with 12 (but in some cases, 24) weeks of paid leave to be used for certain covered family and medical-related absences. The Program and SB 828’s amendments—which will take effect on June 1, 2023—are nuanced, so below are five significant updates from the new legislation for Maryland employers to consider.

When the COVID-19 pandemic began in 2020, employers found themselves in uncharted territory – a new virus, public health emergency declarations, and legislation. Against this onslaught of emerging circumstances, the Equal Employment Opportunity Commission (EEOC) published guidance on the application of existing federal equal employment opportunity laws to COVID-19 workplace issues. Since first releasing “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws” in March 2020, the agency has followed up with several revisions. The EEOC published its latest version of the guidance on May 15, 2023, just ten days after the World Health Organization declared an end to the COVID-19 global public health emergency and six days after the federal COVID-19 Public Health Emergency (PHE) technically concluded. Below, are the most significant updates in what the agency has called its “capstone” guidance (the “Revised Guidance”).