The final installment of a three-part series centered around legislation regarding pre-employment, pay equality and general employee policies.

This has been a year full of new compliance trends regarding employment legislation. Employers are having to learn how to react quickly, at times with limited guidance on how to incorporate the new legal requirements.

This three-part series reviews key legislation trends to watch in the areas of pre-employment and pay equality, and we'll wrap up with general employee policies.

Transgender Rights, Gender Identity and Sexual Orientation

In their interpretation of Title VII, the Equal Employment Opportunity Commission and some federal courts are now including gender identity and sexual orientation as a protected class. From 2010 through today, we have seen 20 states and over 250 local jurisdictions incorporate legislation adding gender identity to the protected class list. In addition to adding this protection, states have taken additional measures to encourage organizations to foster an inclusive environment, with California leading the way.

  • In January, 2018 California enacted legislation providing anti-harassment training geared toward sexual harassment at a managerial level. This is mandatory for all organizations.
  • Both California and New York City now require employers to include non-binary as an option under gender. Note that states such as Oregon also have this requirement for items like birth certificates and drivers licenses.
  • California and New York City require that candidates and employees be allowed to enter their preferred name on documents where legal name is not a requirement.
  • California prohibits discriminating against workers for how they choose to dress (unless it's a business necessity), requires equal access to restrooms that correspond to the gender that the employee identifies as, and requires that posters be displayed listing transgender rights in places where employees can view.

In addition to the requirement of the legislation, it's considered best practice for employers to have employee gender-transition plans in place, or employee policies in the company handbook that help the gender-transitioning employee navigate the process. It's also helpful to have supportive co-workers in the workplace to foster a culture of understanding.

Additionally, having policies in place is helpful in setting the tone for the employee life cycle. From the first time the employee interviews with you, if they are aware of your policies, and your organization acts and displays these policies, you're helping create a diverse workforce and knowledge base.

Although California is leading the way, it's important to know that states including Michigan, New York, Ohio and South Carolina all have legislation pending on transgender rights in the workplace.

Predictive Scheduling for Employees

This recent legislative trend began picking up pace in 2018, although San Francisco enacted the first law in 2014. Predictive scheduling refers to employers setting schedules a certain period of time in advance, particularly in those industries where schedules are unpredictable and subject to change quickly and frequently. Typically, these laws force employers to provide schedules to employees a certain amount of time in advance; some require a minimum of two weeks in advance, others require 72 hours.

Other provisions include providing employees with enough rest between shifts to avoid an employee closing and then opening the next day, providing protection against retaliation for appropriately requesting a schedule change, and paying on-call employees a certain rate for hours scheduled, but not worked.

Sexual Harassment

This calendar year has also seen an increase in legislation around sexual harassment, with 32 states introducing legislation. The intent is to reduce the amount of sexual harassment in the workplace, in addition to protecting those who may report incidents or take steps to counteract sexual harassment in the office against retaliation or retribution.

Legislation on employer requirements will vary by jurisdiction. Some jurisdictions require employers to strengthen training policies, post summaries of rights in the workplace, and prohibit employers from forcing candidates to sign non-disclosures or other waivers about reporting or discussing sexual harassment in the workplace. Additionally, other laws are preventing employers from discriminating against candidates who may be victims in the pre-employment process.

New York City, Washington and Vermont have all recently enacted laws. In particular, New York City's legislation will introduce, among other provisions, mandatory annual sexual harassment training and a written anti-harassment policy, while expanding protections to non-employees (including but not limited to contractors or vendors). Vermont's new legislation (effective in July 2018) will also give greater legal protection from sexual harassment to volunteers, interns and independent contractors.

Data Privacy

With the General Data Protection Regulation in the European Union going into effect in May, 2018, many states in the U.S. are following suit by enhancing their data breach legislation or passing legislation in general. This year alone, South Dakota and Alabama officially became the last two states to incorporate legislation around data breach, while Colorado, Oregon and Arizona all strengthened their consumer data protection and breach notification laws.

Just recently, California enacted the California Consumer Privacy Act of 2018 which is being hailed as California's version of GDPR. Effective January 1, 2020, this act gives consumers certain rights regarding how businesses handle their personal identifiable information.

Both the Consumer Privacy Protection Act of 2017 and the Data Security and Breach Notification Act were introduced in the U.S. Congress in late 2017. They focus on protecting the personal identifiable information of U.S. citizens while ensuring timely notification when that information has been breached. Neither have been enacted to this date.

Also trending in the privacy space is legislation around biometric data. There have been many class action lawsuits around the Illinois Biometric Information Privacy Act. These lawsuits were focused on how companies may have violated the collection, safeguarding or retention of biometric information. Outside of Illinois, Alaska, Connecticut, Massachusetts, New Hampshire and Washington have either all passed or have legislation pending on collecting and retaining biometric data.

Increase in State and Local Laws Requiring Employers to Provide Paid Sick Leave

The amount of paid sick leave time earned by an employee is yet another trending legislative issue. Currently, no federal law exists requiring an employer to provide paid sick leave for their employees. As such, states and local jurisdictions have taken steps over the years to deliver this benefit to employees.

In 2011, Connecticut became the first state to require private employers to give their employees paid sick leave. Although the movement to pass these laws for employees has been steady over the years, it has picked up steam recently due to other legislative trends offering benefits for employees in the workplace.

Similar to other trends, the provisions of the proposed or enacted laws differ depending upon the jurisdiction. One provision common to most laws, however, relates to the specific circumstances in which employees may use this leave. Most jurisdictions allow employees to take time for regular medical check-ups, care for a health condition, and care for an ill family member. Some of the laws seek to expand the reasons an employee may take paid leave to include domestic violence, sexual assault or stalking, as well as for mental illness.

The status of an employee may affect whether or not they are covered under these laws. Many states specify that these laws don't apply to certain classifications of employees, like independent contractors, seasonal workers or federal work-study participants, while others explicitly cover all employees.

At present, more than 20 local jurisdictions and nine states have enacted paid sick leave laws across the country.

As we move into the second half of 2018 it's fair to say that we can expect to see the above trends move into calendar year 2019 due to states adjourning for the session and for the natural climate of legislators today. Not only will it be critical for employers to stay abreast of these trends, it will be critical for employers to watch how these trends begin to impact the expectations of their candidates and employees when it comes to policies and processes within the organization.

More from this series:

Compliance in the Employee Life Cycle: Before the Hire

Compliance in the Employee Life Cycle: Compensation

Additional Resources:

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