The New York City Fair Chance Act (FCA) went into effect on July 29, 2021. Recently, the New York City Commission on Human Rights (NYCCHR) issued guidance clarifying FCA requirements for employers. The following are key updates employers should note.

In Charlton v. Ed Staub and Sons Petroleum, Inc. and Quicksilver Contracting Company, the Oregon Court of Appeal recently stated that aiding and abetting employment discrimination extends beyond employers and employees to third parties, such as customers. There, an employee reported a customer’s emaciated dog to the authorities. Subsequently, the customer told the employer it would take its business elsewhere. The employee was then terminated for poor customer service.

The court stated that anyone qualifying as a “person” under Oregon’s anti-discrimination laws may be subject to liability as an aider or abettor of an employer’s unlawful employment discrimination practice. There, an employee claimed that he engaged in protected whistleblowing conduct for which he was terminated as a result of the customer’s retaliatory conduct.

Employers must take care in responding to customer complaints or actions regarding employees, to ensure that employment actions are not the result of an employee’s protected activity. Similarly, employers should implement internal processes to manage employee complaints about third parties before they are relayed to the third party.

Action Items

In In re: Amazon.com, Inc., et al., the Pennsylvania Supreme Court recently stated that time employees spend undergoing security screening must be compensated. This ruling came in response to questions certified to the state supreme court by the Sixth Circuit Court of Appeal. Specifically, the court answered the questions: (1) whether time spent on an employer’s premises waiting to undergo, and undergoing, mandatory security screening is compensable as “hours worked” within the meaning of the Pennsylvania Minimum Wage Act1 (PMWA); and (2) whether the de minimis doctrine bars claims brought under the PMWA. There, workers were required to undergo security screening before being allowed to exit the premises at the end of their shift.

First, the court noted that the Pennsylvania Department of Labor and Industry defines “hours worked” to include the time an employer requires an employee to remain on company premises. Because employees there were not permitted to leave before completing the security screening, time spent waiting for and undergoing screening was deemed “hours worked.” Second, the court noted that the PMWA specifically requires payment for all “hours worked,” which means that the de minimis doctrine is not recognized under the PMWA. Rather, the de minimis doctrine has only been used in conjunction with the federal Fair Labor Standards Act.

Action Items

The recently enacted WA Cares Fund creates mandatory long-term care insurance for workers. Workers, not employers, fund the program through payroll deductions equal to $0.58 per $100 of earnings. Employers must start facilitating these payroll deductions as of January 1, 2022, and begin reporting employee wages to the state on a quarterly basis. However, employees can opt out of the program if they purchase long-term care insurance before November 1, 2021, and apply to the state for an exemption between October 1, 2021 and December 31, 2022. This is the only exemption period available to employees. There is no limit to employee contributions, but there is a $36,500 lifetime cap (adjusted for inflation) on the program benefits an employee may receive.

The state will provide applicable employees with a formal exemption approval letter that the employees must in turn provide to their current and future employers in order to abstain from the required payroll deductions. Once employees are exempted, they are unable to reenter the program.

Although employers do not contribute to the employee’s financial obligations under the program, employers are subject to penalties if they do not make the required payments on behalf of their employees. Self-employed individuals are not required to participate, but may opt-in to the program. Benefits are available for qualifying employees beginning January 1, 2025.

Action Items

The Occupational Health and Safety Administration (OSHA) recently issued an emergency temporary standard (ETS) for employers whose employees provide healthcare services or healthcare support services (e.g., hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated. Because the ETS is directed at unvaccinated workers most likely to be involved in caring for patients who have COVID-19, it specifically exempts certain healthcare workers: