Manufacturing a Summer (Employment) Potpourri
This blog post is dedicated to those of you who took a heathy summer break and want to catch up on the summer’s major developments. Let the speed reading begin!
As predicted here, the Trump Administration launched a series of not-so-surprising raids to arrest undocumented workers. As of this writing, there has not been a noticeable increase in the prosecution of employers who employ undocumented workers. We can expect more ICE raids in the future.
The National Labor Relations Board issued the first three (of what some anticipate will be many) proposed rules to role back the Obama-era agenda. The first proposal would abolish the process by which a union could block a decertification petition from moving forward simply by filing a charge of discrimination, no matter the merits of the charge. In its place, the Board would adopt a so-called “vote and impound” procedure, under which employees would be allowed to vote but their ballots would not be counted until the charge was ultimately decided. The second change would require employers which voluntarily recognize a labor union to give written notice to employees and permit them 45 days to challenge that recognition. Finally, for employers in the construction industry, the proposed rule would require a union to show that recognition of the union was based on true majority support in order to prevent a construction employer from withdrawing recognition after the labor contract expires.
In New York, Governor Cuomo signed comprehensive legislation expanding New York’s already robust anti-discrimination law. Among other things, these changes include:
Effective immediately: Prevailing plaintiffs “shall” be awarded attorneys’ fees (prevailing defendants are eligible only if the claim was found to be “frivolous”), and employers must provide notice of their sexual harassment policy and annual training program, both the time of hire and annually thereafter. (Notice must be in English and the language identified as each employee’s primary language.)
Effective October 11, 2019: Employees claiming sexual harassment must only establish that the harassment was more than “petty or slight” to establish a cause of action. Similarly, the affirmative defense established by the United States Supreme Court in the Farragher and Ellerth decisions will not be available in New York State sexual harassment cases. Similarly, employees claiming discrimination will no longer be required to show that they were treated less favorably that a similarly situated comparator. The Human Rights Law also is amended to apply to contractors to protect them against all forms of discrimination or harassment. And all victims of discrimination will be able to win punitive damages in court litigation.
Also effective October 11, 2019, settlement agreements or other contract provisions requiring the arbitration of any discrimination or retaliation claim will be banned. On the same date, the complex ban on non-disclosure provisions in agreements resolving sexual harassment claims (giving the settling individual a non-waivable 21-days to consider the provision and 7-days to revoke acceptance) will apply to all settlements of discrimination, harassment and retaliation claims.
Effective November 10, 2019, the New York Human Rights Law will apply to all employers in New York State, regardless of size.
Effective January 1, 2020, any non-disclosure agreement must include carve-outs permitting individuals to communicate with law enforcement, state and federal anti-discrimination agencies or a private attorney hired by the employee.
Effective August 12, 2020, an alleged victim of discrimination will have three (3) years to file an agency charge claiming discrimination.
These are just some of the major things which happened while you were at the beach. Suffice it to say, before charging ahead considering these developments, manufacturers should confer with qualified employment counsel.