The US Labor Law continues to evolve right in front of our eyes and it is imperative for both employers and employees to get updated on the changes involved as they affect company policies that surround employment, training, anti-discrimination and anti-harassment training, injury and illness claims, and compensation, among others. Here are just a few of the developments in labor law this year.
Title VII, which prohibits discrimination on the basis of race, color, religion, sex or national origin, is considered to be the cornerstone of equal opportunity law as it possesses the widest coverage, prohibition, and remedies to individuals. Despite its already encompassing nature, it continues to evolve. In Zarda v. Altitude Express, the 2nd US Circuit Court of Appeals affirmed that the deceased skydiving instructor, Donald Zarda was illegally fired for being gay. In its 10-3 decision, the 2nd circuit agreed that sexual orientation is a function of a person’s gender, and is therefore covered by the law’s prohibition on sex bias. Employers in other states besides New York can expect that other circuit courts will also extend Title VII’s protections to cover sexual orientation.
As sexual harassment issues and the #MeToo movement continues to dominate talks across all sectors and industries, legislation in California appears to also be saturated by such discussions. Several bills have been passed and are under consideration in 2018. These proposals include Assembly Bill 3080, which will prohibit mandatory arbitration of sexual harassment claims, ban retaliation, and protect whistleblowers after publicly disclosing harassment they experienced or witnessed. Assembly Bill 1867 will require employers to keep records of sexual harassment complaints for 10 years, while Assembly Bill 1870 will extend the statute of limitations for sexual harassment cases from one year to three years. In preventing workplace sexual harassment, a number of bills were also passed such as Senate Bill 1300, which will require companies of all sizes to provide sexual harassment prevention training to all employees within six months of hiring, once every two years. These are just four of the dozens of bills passed in California to address the rampant and pressing problem of sexual harassment in the workplace.
Injury and Illness
The Occupational Safety and Health Administration (OSHA) issued a final rule in 2016 to revise its Recording and Reporting Occupational Injuries and Illnesses regulation, effective January 1, 2017. The new rule requires certain employers to submit their existing injury and illness data electronically. Some of the data will be posted online, as OSHA believes that public disclosure will encourage employers to improve safety in the workplace, as well as provide important information to employees, job seekers, researchers, customers, and the public. On February 21, 2018, OSHA issued guidelines on how to cite employers who failed to submit their injury and illness records electronically. The memorandum addresses potential violations to the said OSHA rule. Below is an excerpt from the memo:
- If the employer attempted to electronically submit the information but was unable to do so due to technical issues, the employer may avoid being cited if the employer can show documentation of its attempts to submit the information.
- If the employer failed to submit, but immediately abates during the inspection by providing a paper copy of the records, an Other Than Serious citation will be issued with no penalty.
- If the employer failed to submit its CY2016 data but shows it has already submitted CY2017 data, an Other Than Serious citation will be issued with no penalty.
Contact us at Hogan Injury if you want to know more about these labor law developments.
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