THE LAST 60 DAYS OF ACTION IN EMPLOYMENT LAW - Rubin, Fortunato

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A Law Firm of Action

THE LAST 60 DAYS OF ACTION IN EMPLOYMENT LAW

April 5, 2021

Patricia Tsipras, Esquire

Federal Airlines, Inc., No. 19-2546, 2021 U.S. App.
On March 29, 2021, the Equal Employment LEXIS 2973 (7th Cir. Feb. 3, 2021).
Opportunity Commission, after delaying the
opening of the 2019 EEO-1 Component 1 On January 29, 2021, the United States
Data Collection on May 8, 2020 in light of Department of Labor announced that it was
the COVID-19 public health emergency, ending the Payroll Audit Independent
announced that the 2019 and 2020 EEO-1 Determination (PAID) program, under
Component 1 data collection will open on which employers could self-report wage and
April 26, 2021. The deadline for submitting hour violations and settle without liquidated
2019 and 2020 EEO-1 Component 1 data damages or additional penalties. See DOL
will be July 19, 2021. The EEO-1 Release No. 21-142-NAT.
Component 1 collects workforce data from
employers with 100 or more employees and Arizona
from federal contractors with 50 or more On February 4, 2021, Arizona amended its
employees. civil rights act to prohibit discrimination
based on pregnancy, childbirth, and related
On February 19, 2021, the United States medical conditions. The amendment
Department of Labor withdrew opinion becomes effective on July 23, 2021. See
letter FLSA2019-6, which dealt with 2021 Ariz. HB 2045.
whether a service provider for a virtual
marketplace company is an employee of the California
company under the Fair Labor Standards On March 19, 2021, California Governor
Act or an independent contractor. See Newsom signed Senate Bill 95 to expand
FLSA Opinion Letters. California’s COVID-19 Supplemental Paid
Sick Leave (CSPSL) until September 30,
On February 3, 2021, the Seventh Circuit 2021. The law requires any California
Court of Appeals held that the Uniformed employer with more than 25 employees to
Services Employee and Reemployment provide, in addition to regular paid sick
Rights Act (USERRA) required an employer leave, CSPSL (80 hours for full-time
to provide paid military leave to the same employees and an amount based on a
extent that it provided paid leave for other formula for part-time employees) for
comparable absences. See White v. United COVID-19-related reasons, including to
care for themselves, to care for a family

This newsletter is designed to provide an overview of certain employment law changes in the last 60 days; it is not
meant to be exhaustive. This newsletter does not serve as legal advice, nor does it establish an attorney-client
relationship with any reader of the article where one does not exist.
Always consult an attorney with specific legal issues.

member, or to become vaccinated. The are hired during a public health emergency
maximum benefit is $511 per day or are entitled to such leave. The revisions
$5,110 in the aggregate. The law is take effect on April 14, 2021. See Wage
retroactive with respect to sick leave taken Protection Rules, 7 CCR 1103-7.
beginning in January 2021. See 2021 Cal.
SB 95. Connecticut
On March 4, 2021, Connecticut Governor
On February 25, 2021, the California Lamont signed an “Act Creating a
Supreme Court held that, in the meal period Respectful and Open World for Natural
context, employers cannot engage in the Hair,” also known as the CROWN Act. The
practice of rounding time punches (adjusting CROWN Act bans discrimination in the
the hours that an employee has actually workplace based on natural hair by
worked to the nearest preset time amending Connecticut’s anti-discrimination
increment). The meal period provisions of statute to define “race” as being “inclusive
the California Labor Code are designed to of ethnic traits historically associated with
prevent even minor infringements on meal race, including, but not limited to, hair
period requirements, and rounding is texture and protective hairstyles.”
incompatible with that objective. See “Protective hairstyles” is defined to include,
Donohue v. AMN Servs., LLC, No. but is not limited to, “wigs, headwraps and
S253677, 2021 Cal. LEXIS 1294 (Feb. 25, hairstyles such as individual braids,
2021). cornrows, locs, twists, Bantu knots, afros
and afro puffs.” See 2021 Conn. H.B. 6515.
Colorado
On February 23, 2021, the Colorado Illinois
Department of Labor and Employment On March 23, 2021 and effective
(CDLE) issued revisions to the Wage immediately, Illinois amended its Human
Protection Rules relating to Colorado Rights Act to prohibit the use of criminal
employers’ paid sick leave obligations under convictions as a basis to refuse to hire, to
the Healthy Families and Workplaces Act segregate, or to act with respect to
(HFWA). The HFWA requires Colorado recruitment; hiring; promotion; renewal of
employers to provide at least 48 hours of employment; selection for training or
paid sick and safe leave each year either on apprenticeship; discharge; discipline; tenure;
an accrual basis based on hours worked or or terms, privileges, or conditions of
frontloaded annually. This requirement employment unless a substantial relationship
remains unchanged. However, the law now exists between one or more of the previous
also requires all Colorado employers to criminal offenses and the employment
provide employees access to up to 80 hours sought or held, or the granting or
of public health emergency leave upon the continuation of employment would involve
declaration of a public health emergency by an unreasonable risk to property or to the
federal, state, or local authorities. The safety or welfare of specific individuals or
revisions clarify how public health the general public. Employers must conduct
emergency leave accrues for part-time individual assessments to determine whether
employees and clarifies that employees who

a substantial relationship between the job record check on the applicant before a
and conviction exists and, if an employer conditional offer of employment, unless the
makes a decision that a conviction record employer is covered by an applicable
disqualifies the individual from exemption under the law. In addition, the
employment, the employer must notify the amendment provides that an employer can
individual in writing, provide an opportunity never require an applicant to disclose
to respond, and notify the employee of their whether the applicant has been arrested, or
rights to challenge the decision internally or has an arrest record, for a matter that did not
with the Illinois Department of Human result in a conviction. Nor can an employer
Rights. See 2019 Ill. SB 1480. require an applicant to disclose whether the
applicant has an arrest record or a conviction
Also on March 23, 2021, Illinois amended record for, or otherwise has been accused of
its Equal Pay Act to require private (1) a first conviction for trespass;
employers with more than 100 employees to disturbance of the peace; or assault in the
obtain an “equal pay registration certificate” second degree; or (2) a conviction of a
by March 23, 2024, and every two years misdemeanor if at least three years have
thereafter. To apply for a certificate, passed since the date of the conviction; and
employers must provide data on employee the date that any period of incarceration for
demographics and wages and certify the misdemeanor ended; or (3) a matter for
compliance with anti-discrimination and which records are confidential; or have been
equal pay laws. See 2019 Ill. SB 1480. expunged. See Montgomery County Bill
35.20.
Maryland
Effective February 19, 2021, Montgomery New Jersey
County, Maryland amended its ban-the-box On March 25, 2021, a federal judge enjoined
legislation. The original ordinance, which enforcement of N.J. Stat. § 10:5-12.7 –
became effective in 2015, prohibits which prohibits employers from requiring
employers with at least 15 full-time prospective waivers of New Jersey Law
employees in Montgomery County from Against Discrimination claims – with
conducting a criminal background check on respect to arbitration, finding that the law is
a job applicant, or otherwise inquiring about preempted by the Federal Arbitration Act.
the criminal or arrest history of an applicant, See N.J. Civil Justice Inst. v. Grewal, No.
prior to the completion of a first interview. 19-17518, 2021 U.S. Dist. LEXIS 57437
The amendment expands this restriction and (D.N.J. Mar. 25, 2021).
covers smaller employers. Specifically,
employers (including the county On March 9, 2021, in connection with an
government) with at least one employee (no action by a police officer, the New Jersey
longer limited to full-time employees) in Supreme Court identified three distinct
Montgomery County may not require a job causes of action within the Pregnant
applicant to disclose, or ask others to Workers Fairness Act (PFWA): (1) unequal
disclose, whether the applicant has an arrest or unfavorable treatment; (2) reasonable
record or conviction record or has been accommodation; and (3) penalization, which
accused of a crime, or conduct a criminal arises when conditions of a designated

accommodation were made particularly texture or culturally specific hairstyles,
harsh. See Delanoy v. Twp. Of Ocean, A-68 including braids, locs, twists or bantu knots.
September Term 2019, 084022, 2021 N.J. See Council Bill No. O-20-47.
LEXIS 173 (Mar. 9, 2021).
New York
On February 22, 2021, Governor Murphy On February 11, 2021, the New York Court
signed the New Jersey Cannabis Regulatory, of Appeals held, in a 6-1 decision, that
Enforcement Assistance, and Marketplace individual owners, employees, agents, and
Modernization Act, which (1) creates license limited partners of a business entity cannot
types and operations requirements for be held vicariously liable under the New
businesses in all phases of the cannabis York City Human Rights Law (NYCHRL)
supply chain, from cultivation to retail sale; for employment discrimination by the
(2) directs the state Cannabis Regulatory entity’s employees and that such persons
Commission (CRC) to promulgate may be held individually liable only if their
regulations governing licensing and own personal conduct violates the law. By
operations of businesses selling cannabis, way of background, the plaintiff, a former
including setting statewide caps on the employee of Bloomberg, L.P., using the
number of licenses; (3) allows CRC to levy pseudonym, Margaret Doe, alleged that her
an excise tax on cannabis and municipalities supervisor sexually harassed and abused her.
to issue a transfer tax on cannabis sales to Doe alleged employment discrimination
the public and for transfers between licensed claims under the NYCHRL against her
businesses; (4) establishes preferences, supervisor, Bloomberg, L.P., and Michael
reporting, and funding to promote the Bloomberg in his individual capacity. Doe
participation of socially and economically did not allege that Mr. Bloomberg knew of
disadvantaged communities in the cannabis or participated in her supervisor’s alleged
industry; and (5) creates employment wrongdoing. Instead, she alleged that, as the
protections for people who engage in lawful owner and CEO of Bloomberg, L.P., Mr.
behavior with respect to cannabis. Most of Bloomberg was an “employer” under the
the statute will not become operative until NYCHRL and, therefore, was vicariously
CRC issues rules and regulations. See 2020 liable for the supervisor’s discriminatory
N.J. AB 21. conduct. The Court held that Doe’s
allegations that Mr. Bloomberg “fostered a
New Mexico culture of discrimination and sexual
On January 21, 2021, at the first harassment at Bloomberg, L.P., based
Albuquerque City Council meeting of the primarily on news articles and reports of a
calendar year, the governing body deposition in an unrelated case,” were
unanimously passed a CROWN Act, insufficient to state a claim against him
amending the Albuquerque Human Rights under the NYCHRL. See Doe v.
Ordinance, which will explicitly prohibit Bloomberg, L.P., No. 8, 2021 N.Y. LEXIS
race-based hair discrimination. Effective as 50 (Feb. 11, 2021).
of January 26, 2021, the amendment protects
against the denial of employment and On January 22, 2021, the Second Circuit
educational opportunities because of hair Court of Appeals affirmed the Southern

District of New York’s grant of a and/or terminations. To the extent that
preliminary injunction enforcing a non- employers are permitted to consider an
compete and prohibiting a former IBM sales individual’s criminal background, they must
manager (Lima) from working at Microsoft conduct an individualized assessment before
because he would inevitably disclose IBM’s making any employment decision based on
trade secrets. The Second Circuit based its the criminal background. If an employer
decision, in part, on the following findings: makes an employment decision based, in
(1) Lima’s job at IBM provided him with whole or in part, on the individual’s criminal
access to IBM's trade secrets, namely IBM’s record, they must give individuals written
confidential plans regarding its strategy to notice of, and reasons for, the negative
acquire new cloud computing clients in employment decision, and permit the
Latin America—the exact geographic individual 10 business days to provide
market he would be overseeing at Microsoft; evidence of any inaccuracy or to provide an
(2) Lima would perform substantially explanation. Employers may inquire about
similar work at Microsoft in an arena where an employee’s pending criminal charge if it
IBM was a direct competitor; (3) the district is job-related. Lastly, the amended FCRSS
court did not clearly err in concluding, as a replaces punitive damages with liquidated
predictive matter, that Lima would damages. A complainant can potentially
inevitably disclose IBM’s confidential recover liquidated damages equal to the
information as he undertook his job duties at maximum allowable salary for the job
Microsoft; and (4) the non-compete subject to the complaint for a period of one
agreement does not impose undue hardship month, not to exceed $5,000. See Bill Nos.
on Lima, as he is currently on Microsoft's 200479, 200413, 200614.
payroll. IBM v. de Freitas Lima, No. 20-
3039-cv, 2021 U.S. App. LEXIS 1766 (2d Texas
Cir. Jan 22, 2021). On March 10, 2021, a Texas appellate court
affirmed a lower court’s injunction
Pennsylvania prohibiting enforcement of the City of San
Effective April 1, 2021, the City of Antonio’s paid sick leave ordinance, ruling
Philadelphia expanded its Fair Criminal that is it unconstitutionally preempted by the
Record Screening Standards (FCRSS). The Texas Minimum Wage Act. Specifically,
FCRSS has applied, and will continue to the paid sick and safe leave provision in the
apply, to job applicants, prohibiting City’s ordinance established a minimum
employers from considering an applicant’s wage that was inconsistent with the State’s
criminal history prior to making a Minimum Wage Act and, thus, violated the
conditional offer of employment. Now, it Texas Constitution. See Washington v.
also will apply to current employees, Associated Builders & Contractors of S.
independent contractors, and gig workers Tex., No. 04-20-00004-CV, 2021 Tex. App.
who work within the City’s geographic LEXIS 1751 (Tex. App. Mar. 10, 2021).
boundaries. Employers also are prohibited
from using criminal histories for re-
employment decisions and continued
employment, including promotions, raises,

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