Stokes Wagner Law Firm
Stokes Wagner

Picture the following scenario: An employee engages in misconduct at work that results in suspension pending investigation and would normally probably end in termination. But at the time of the suspension, the employee requests and is granted a medical leave. The termination is not finalized while the employee is on leave, and while on leave, the employee claims that the misconduct was caused by a mental illness and requests reasonable accommodation under the Americans with Disabilities Act – in short, they ask for a second chance.

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In March, Florida’s legislature approved the “Stop Wrongs to Our Kids and Employees (WOKE) Act.” The bill restricts how workplaces and classrooms around the state handle discussions surrounding race, gender and discrimination. The law, expected to take effect on July 1, 2022, will also prevent companies with 15 or more employees from subjecting “any individual, as a condition of employment … to training, instruction or any other required activity that espouses, promotes, advances, inculcates or compels such individual to believe” certain concepts related to diversity, equity and inclusion (“DE&I”).

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In February 2022, California’s legislature introduced two family-focused bills that, if passed, would (1) require employers to provide bereavement leave to all employees upon the death of a family member (AB-1949) and (2) add “family responsibilities” as a protected class under the Fair Employment and Housing Act (AB-2182).

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On March 16, 2022, New York State Governor Kathy Hochul signed three bills into law amending and expanding harassment and discrimination protections under the New York State Human Rights Law (NYSHRL). New York State employers should remain on high alert for additional expansions to come and be ready to review and consult their anti-discrimination and harassment policies and practices to comply with the new protections as they become effective.

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Employers who use biometric technology in the workplace should be aware of the developing trend towards legislation targeting the misuse of biometric information. Biometric technology, which is used to identify individuals by the measurement and analysis of their unique physical characteristics, including fingerprints and facial features, can be used for a variety of activities ranging from timekeeping to controlling and monitoring access to information and worksites. However, the increasing legislation around the collection and use of this information is creating a legal minefield for unwary employers.

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A Federal Appeals Court recently ruled that marketers who hand out samples and promote products qualify as outside salespeople under the Fair Labor Standards Act (“FLSA”), and are thus exempt from the overtime provisions of the FLSA.

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On February 10, 2022, the U.S. Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”). Once signed into law, arbitration agreements and joint-action waivers are unenforceable with respect to most sexual assault or harassment employment claims.

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A recent EEOC case involving an executive who was fired after having an episode of depression underlines the importance of accommodating mental disabilities under the Americans with Disabilities Act (“ADA”).

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California recently announced that it will lift its mask mandate for vaccinated residents in indoor public places starting on February 15, 2022. This means that California no longer requires employers to mandate face coverings for vaccinated employees while indoors. And all employees, regardless of their vaccination status, are no longer required to wear a face covering while outdoors unless there is an outbreak in the workplace.

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The California Supreme Court set a new, more employee-friendly, evidentiary standard for whistleblower retaliation claims. In Lawson v. PPG Architectural Finishes, Inc., the Court held Labor Code section 1102.6, not the McDonnell Douglas test, provides the appropriate framework for evaluating whistleblower retaliation claims brought under Labor Code section 1102.5. Because of this, employers will have to meet a higher burden to show by clear and convincing evidence that they did not retaliate based on the employee’s alleged whistleblower activities.

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