Labor of Law: Mandatory Sexual Harassment Training in NY | Is California's Female Board Law Legal? | Plus: Who Got the Work
Welcome to Labor of Law. Everyone's talking about New York's new mandatory sexual harassment training, and we've got some observations below. California's got a new suite of #MeToo-inspired laws, too. Scroll down for more on that, new moves and Who Got the Work. Uber Technologies faces a fresh challenge under California’s new worker-classification standard.
I’m Erin Mulvaney in Washington, D.C., covering labor and employment from the Swamp to Silicon Valley. Follow this weekly newsletter for the latest analysis and happenings. If you have a story idea, feedback or just want to say hi, I’m at emulvaney@alm.com and on Twitter @erinmulvaney.
New York, California and #MeToo Blitz
New York state and New York City enacted a sweeping package of new policies aimed at sexual harassment prevention in the workplace. California just adopted a new suite of laws.
This week, in New York, all employers must have adopted and distributed a prevention policy. The new state law includes a prohibition on nondisclosure agreements—unless the complainant wants one—and there are new notification requirements that must be made to employees. One of the biggest requirements of the law is sexual harassment training for all employees who work a portion of their time in New York.
This year, dozens of states around the country pushed forward bills and created new laws to address sexual harassment following the movement that brought accusations to light about high-profile men in power over the last year. New York’s measures were among the most comprehensive. More here at The New York Law Journal.
Jason Habinsky, labor and employment partner at Haynes and Boone in New York, said there's been “rapid fire development” in the law. He said sexual harassment is the focus of the laws, but he is urging clients to look broader at protections against all types of harassment in protected categories. Following the #MeToo movement, the number of sexual harassment charges at the U.S. Equal Employment Opportunity Commission skyrocketed.
“Other states and jurisdictions will see the lead that California and New York have taken,” Habinsky said. “There is sometimes a bandwagon effect.”
Randi Kochman, chair of the employment team at Cole Schotz, said companies in New York are scrambling to comply with the new regulations. She called it a "new day" for employers. "There will be a cost involved, however they choose to do it," she said. "It's continuing the whole conversation and raising questions of these issues."
➤➤ Meanwhile...
California's new regulatory laws expanded the state's harassment and discrimination training. A team from Gibson, Dunn & Crutcherhas a deep post on what employers need to know about the new laws, signed just a few days ago by the governor. The analysis was prepared by, among others, partners Elizabeth Ising, Stewart McDowell, Jason Schwartz, Katherine V.A. Smith, and Lori Zyskowski.
Some of the points:
• "The training requirements now cover all employers with five or more employees, which includes temporary or seasonal employees, meaning that many smaller employers are now subject to California’s training requirements."
• "SB 826 requires a minimum number of female directors on the boards of publicly traded corporations with principal executive offices in California." The Gibson Dunn team noted: "Potential challengers of this law argue that it suffers from numerous legal deficiencies, including that it violates the Commerce Clause and the Equal Protection Clause of the United States Constitution."
Emily Gold Waldman of Elisabeth Haub School of Law at Pace University has a new post up looking at the constitutionality of SB 826. Waldman's takeaway: "Indeed, it's very hard to see how this law could be upheld. It essentially imposes a quota for women, and the Supreme Court has consistently looked with particular disfavor on any state action that involves quotas or set-asides on the basis of protected characteristics."
Who Got the Work
>> Gibson, Dunn & Crutcher, serving pro bono, conducted a "comprehensive board governance review" for the Humane Society of the United States. The board on Wednesday said it had unanimously approved and directed the implementation of certain organizational enhancements to governance practices.
>> Lawyers representing the California livery service Diva Limousine Ltd. are taking an early shot at getting a federal judge to find that Uber Technologies Inc. is running afoul of the state’s labor laws by classifying its drivers as contractors rather than employees. Robins Kaplan and Keller Lenkner lawyers sued Uber in September. Morgan, Lewis & Bockius attorneys, led by Brian Rocca, represent Uber. Read more at The Recorder.
>> A religious group is challenging an Austin, Texas, ordinance that prohibits discrimination against LGBT workers. The U.S. Pastors Council, based in Houston, filed the federal suit to exempt churches from the rule, "because these member churches rely on the Bible rather than modern-day cultural fads for religious and moral guidance, they will not hire practicing homosexuals or transgendered people as clergy." Austin-based attorney Jonathan Mitchell of Mitchell Law filed the lawsuit on behalf of the church group. Austin's NPR station has more here.
Notable Moves & Promotions...
>> Jeremy Mittmanhas joinedMitchell Silberberg & Knupp’s Los Angeles office as a partner in the labor and employment Department. Mittman left Proskauer Rose, where he worked for 15 years.
>> Richard Burnswas appointed as the interim CEO of Lambda Legal. He was previously director of the NYC LGBT Community Center.
>> Lubell Rosen partner Josh Bloom in Fort Lauderdale has been promoted to chair of the firm’s labor and employment practice.
Around the Water Cooler
>> Women-owned law firms are surging. "By founding their own firms, women are crafting new game rules that provide for fair compensation, equal promotions, full inclusion and better career development opportunities," Angela Morris writes at law.com. Law.com
>> SCOTUS will have at least three chances this term to bolster arbitration. The three cases follow on the heels of last term’s blockbuster Epic Systems v. Lewis, which said employment agreements can lawfully restrict class actions.
The National Law Journal
>> Business group and unions weighed in on a National Labor Relations Board case that will consider whether employees can use company-owned email for to discuss workplace complaints and union organizing. The Republican board could overturn an Obama-era precedent that allows workers to use corporate email systems. The National Law Journal
>> White Castle and Walmart opposed an overtime rule created by the Obama administration, but they upped the salaries of their employees anyway. Now they are becoming an unlikely poster child for a higher wage threshold for exempt employees. Bloomberg Law
>> Amazon’s boost of $15 an hour minimum wage isn’t necessarily good news for all workers. Some may end up making thousands of dollars less every year.
The New York Times
>> Uber may give its drivers insurance and benefits. CEO Dara Khosrowshahi said the company wants to “close the gap” between its treatment of full-time employees and drivers. Fisher Phillips says this move would be a “game changer.” Fortune
