August Updates

EEOC Announces Mediation Program Expansion

The Equal Employment Opportunity Commission (EEOC) recently implemented expansions to its voluntary mediation programs. The EEOC’s ACT Mediation pilot expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation. The pilot also expands the use of technology to hold virtual mediations. The EEOC also implemented a Conciliation Pilot with the requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents. Conciliation is an informal and confidential process, required by Title VII, to attempt to voluntarily resolve findings of discrimination before litigation. The EEOC hopes these programs promote resolution of claims.

California: Unemployment Benefits Extended Up to an Additional 7 Weeks

On July 1, 2020, the California Employment Development Department (EDD) issued news Release No. 20-29, announcing that up to an additional 7 weeks of unemployment insurance benefits are available to longer-term unemployed workers impacted by the COVID-19 pandemic.

California previously became eligible for the Federal-State Extended Duration benefits program (FED-ED), which provides up to 13 weeks of benefits to long-term unemployed California workers.  Now, additional federal support adds seven more weeks to the FED-ED program, a total maximum period of 59 weeks for California state unemployment benefits. The federal Pandemic Unemployment Assistance (PUA) program has also been extended by seven weeks, for a maximum benefit period of 46 weeks. Individuals must meet certain criteria to qualify for a FED-ED extension. Employers can read more about the extension here.

California: Updated Guidance During COVID-19

California recently issued the “Employer Playbook for a Safe Reopening” to provide guidance, checklists, and tools for how to reopen and what safety measures need to be implemented in the workplace. The Department of Fair Employment and Housing (DFEH) also updated its FAQs regarding COVID-19 testing in the workplace, managing illness in the workplace, and managing reasonable accommodations related to COVID-19. Employers should review the updated guidance for compliance.

Florida: Timeline to File Discrimination Claims Shortened

Under the Florida Civil Rights of 1992 Act (FCRA), employees bringing forth a discrimination are first required to file charges with the Florida Commission on Human Relations (FCHR) within one year of the alleged violation.  From there, an extensive timeline exists for the FCHR to investigate, issue notice of a potential discriminatory timeline, and for the claimant to either file suit or seek a hearing before an administrative law judge.

As of June 30, 2020, a new bill amends the FCRA to drastically limit the timeline for a discrimination claim to be filed.  Potential charges must still be reported within one year of the alleged violation, but the FCHR is required to notify a charging party within 180 days if it has failed to issue a notice of determination. This then triggers the one-year period for a charging party to file suit, shortening the overall maximum timeline of the process from four years to approximately two-and-a-half.

Georgia: Unemployment Reporting for Part-Time Employees Not Mandatory

On July 17, 2020, the Georgia Department of Labor updated its emergency rules regarding unemployment benefits during the COVID-19 pandemic. The rules are in effect from July 19 to November 16, 2020. Most notably, employers are no longer required to file partial unemployment claims for part-time employees whose hours and pay are substantially reduced due to the COVID-19 public health emergency. However, employers may elect to do so. Employers are still required to submit partial claims for applicable full-time employees.

Illinois: Guidance Issued on IDHR Disclosure Deadlines

In 2019, the Illinois Human Rights Act (IHRA) was amended to require employers to disclose to the Illinois Department of Human Rights (IDHR) any adverse judgments or administrative rulings. Employers must make the required disclosure by October 31, 2020 for the 2019 calendar year. The IDHR recently issued guidance on the reporting requirement. Employers should review the guidance to ensure timely compliance.

New Jersey: Arbitration Applies to Transportation Workers

On July 14, 2020, in Arafa v. Health Express Corp., the New Jersey Supreme Court stated that, although the Federal Arbitration Act (FAA) does not apply to certain transportation workers, arbitration agreements with transportation workers are valid under state law. Specifically, there is no comparable exception under New Jersey state arbitration rules. The New Jersey Arbitration Act would apply to the agreements unless preempted by the FAA. Employers should review arbitration agreements with transportation workers.

Pennsylvania: Expands Discrimination and Harassment Protections

On June 16, 2020, in Harrison v. Health Network Laboratories Ltd. Partnerships and Lehigh Valley Health Network, the Pennsylvania Supreme Court stated that, in addition to the Pennsylvania Human Relations Act, employees may claim wrongful termination for reporting discrimination and harassment under the Pennsylvania Whistleblower Law. This expansion only applies to employees who are not the victims of discrimination themselves, and allows them to directly file a lawsuit without first engaging in state administrative procedures.

Philadelphia, PA: No Retaliation for COVID-19 Complaints

On June 26, 2020, Philadelphia enacted the Essential Workers Protection Act (EWPA) which prohibits employers from retaliating against employees who report violations of COVID-19 public-health orders, or refuse to work in unsafe conditions related to COVID-19.  The EWPA also requires employers to comply with COVID-19 orders issued by the Pennsylvania or Philadelphia Departments of Health.

Rhode Island: Clarifies When Employers May Terminate Employees for Refusing Drug Tests

On May 29, 2020, in Colpitts v. W.B. Mason Co., Inc., the Rhode Island Supreme Court stated that an employer could terminate an employee for refusing to take a drug test if it met the reasonable grounds standard applicable under the state’s drug testing statute, even though the employer did not have actual knowledge of the employee being under the influence or the employee did not manifest the specific symptoms associated with being under the influence. There, the employer had referred the employee to drug testing for observed “odd” behavior. Employers should review individual circumstances with legal counsel to ensure the reasonable grounds standard is met.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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