In the wake of the #MeToo movement, a number of states are considering legislation that would limit an employer’s ability to use non-disclosure agreements (“NDAs”) when settling sexual harassment claims. New York was the first state to enact such legislation, which was passed as part of a wide-ranging budget bill that takes effect July 11, 2018. New York’s law bans non-disclosure provisions in settlements of claims involving sexual harassment allegations, unless confidentiality is the “complainant’s preference,” provided some onerous procedures are complied with. Washington State passed a similar law. Arizona, California, and Pennsylvania are also considering legislation to restrict the use of NDAs.
As we previously reported, a federal district court in Philadelphia recently struck down the provision of Philadelphia’s salary history ban prohibiting employers from asking about salary history (the “inquiry provision”), but upheld the provision of the law prohibiting employers from relying on such information (the “reliance provision”). The law was initially scheduled to take effect May 23, 2017, but had been stayed by the district court pending resolution of the Philadelphia Chamber of Commerce’s challenge to the law. The Judge’s decision ostensibly resolved the litigation at the district court level, however, both the Chamber of Commerce and the City of Philadelphia have appealed the ruling to the Third Circuit Court of Appeals. The Third Circuit has not yet issued an order staying the reliance provision, which the district court upheld. We therefore caution Philadelphia employers to act as though the reliance provision is in full effect, and to refrain from relying on salary history information in determining employees’ compensation. We will continue to report on the appellate process as it unfolds.
As a reminder, the New York City Earned Safe and Sick Time Act (“Paid Safe/Sick Leave Law”) became effective on May 5, 2018. The Paid Safe/Sick Leave Law applies to all employers with five or more employees who work more than 80 hours a year in New York City and requires employers to provide up to 40 hours (5 days) of paid safe and sick leave. Employers with less than five employees must provide unpaid sick and safe leave. In order to notify employees about their rights under the Paid Safe/Sick Leave Law, New York City employers must distribute written notice to their employees on the first day of employment or by June 4, 2018. Employers can find the new Notice of Employee Rights on the New York City Department of Consumer Affairs (“DCA”) website, available here. The DCA also provides the new notice in Spanish, Chinese and 24 other languages.
On April 30, 2018, a federal district court issued a long-anticipated ruling on Philadelphia’s salary history ban. The ban, scheduled to take effect May 23, 2017, has two parts: (1) the “Inquiry Provision,” precluding employers from inquiring about a prospective hire’s wage history; and (2) the “Reliance Provision,” prohibiting employers from relying on the wage history of a new employee in determining the employee’s pay, unless the employee “knowingly and willingly disclosed his or her wage history to the employer.”
This week, three female associates at Morrison & Foerster (“MoFo”) filed a nine-count gender, pregnancy, and maternity (“sex-plus”) discrimination class and collective action against their employer in the Northern District of California. The putative class includes all female attorneys at MoFo and other national and California subclasses of female attorneys who have been or will be employed by MoFo and who have been or will be pregnant, have children, and/or take maternity leave.
Governor Phil Murphy recently made good on his campaign promise to make equal pay a top priority in New Jersey. On April 24, 2018, Governor Murphy signed into law the Diane B. Allen Equal Pay Act (the “Act”), which amends the New Jersey Law Against Discrimination (“NJLAD”). The Act was passed by the New Jersey Legislature on March 27, 2018, and takes effect on July 1, 2018.
The Act is being heralded as one of the most expansive equal pay laws in the country, and impacts hiring practices, compensation practices, employee arbitration agreements and how HR must respond to employee demands for information regarding their co-workers’ compensation.
Continue reading “New Jersey Enacts Comprehensive Equal Pay Law – What Employers Need to Know”