Et Tu, Compliance? March-ing Ahead With Legal Updates

So ... how are those resolutions coming along? It's March (yes, seriously) which means that Spring is just around the corner and by now nearly everyone has given up on their New Year's resolutions (enjoy that monthly donation to Planet Fitness). March also brings some fun HR challenges, like that peculiar uptick in "sick" leave requests due to the March Madness flu. At least St. Patrick's Day falls on a Sunday this year, so maybe we'll be spared having to police "Kiss me, I'm Irish" workplace outfits.

In this edition of the L&E newsletter, we're diving into updates on NYC sick leave, a word of caution on physicals, and a reminder that if you don't properly classify your employees, you'll need more than the luck of the Irish to save you.

From DCWP to DIY, New Changes to NYC's Sick Leave Law

We first learned of changes to the New York City's Earned Safe and Sick Leave (ESSL) law late last year, and I hope you were listening because there's even more fun on the horizon!

Up until now, only the folks at the Department of Consumer and Worker Protection (DCWP) could enforce violations of the ESSL. Individuals were of course free to file complaints with the DCWP, but it was ultimately up to the agency whether - and when - to go after employers. However, the ESSL was amended late last year and, effective March 20, 2024, "any person" may file a lawsuit alleging violations. This means that employees no longer have to wait for the DCWP to process their claims and can go straight to their local plaintiffs' lawyer who will happily send you a strongly worded letter. Guilty employers would still be on the hook for compensatory damages, and of course, payment of the employee's attorneys' fees.

NYC employers: if you have not already done so, now may be a good time to review your safe and sick leave policies (we know people who can help).

Fingerprints and Physicals - Biometric and Genetic Privacy Updates

We don't often talk about the Midwest in this blog - too much gluten in those deep-dish pizzas - but if you've ever heard of biometric privacy cases chances are you're talking about some lawsuit in Illinois. The reason for that is a law known as the Biometric Information Privacy Act (BIPA), which protects the sharing and collection of "biometrics" like fingerprints and facial scans. Since its passage in 2008, BIPA has led to a tremendous amount of litigation, primarily involving employers who use hand or face scanners for timekeeping purposes. And while several states have laws protecting biometric privacy, BIPA is by far the most dominant. So, it's not surprising that Illinois now appears to be the epicenter for litigation involving the improper collection of genetic information.

Last year, Ford was hit with a class-action lawsuit proposed by a group of job applicants who claim that questions about family medical histories violated the Genetic Information Privacy Act (GIPA). This is similar to another lawsuit filed last year against Amazon, alleging the retail giant violated GIPA by (among other things) requiring applicants to take preemployment physicals, during which the job seekers were allegedly asked to disclose family medical history.

Now, you might be thinking: "there's a better chance of me taking advantage of my Planet Fitness membership than operating in Illinois, so why should I care?" For starters, while your state might not yet have its own BIPAs or GIPAs (oh my!), biometric privacy laws are not unique to the Prairie State. New York, for instance, has a rule prohibiting employers from requiring a fingerprint from employees as a condition of employment. More importantly though, there is A TON of pending legislation in other states looking to essentially mirror BIPA - and since our readers know the legislative trend isn't exactly the passage of more employer-friendly laws, it's a good bet that BIPA-like legislation is coming to a jurisdiction near you.

And then there's GINA - no, not your college friend who got really into sourdough starters during the pandemic, but the Genetic Information Non-Discrimination Act of 2008. GINA is a federal law covering employers with at least 15 employees that, like GIPA, prohibits employers from requesting or requiring "genetic information". If you use physicals or health questionnaires for applicants or current employers, it is highly advisable you review these policies. Many of these GIPA and GINA lawsuits involve what you'd likely consider routine questions, such as "do you have a family history of X". You (hopefully) already knew to tread carefully with physicals and medical exams due to the disability discrimination laws. The genetic discrimination laws are just further reason to proceed carefully and prevent having your application policy be Exhibit A in a lawsuit.

California - The Gift That Keeps On Giving

In our last post, we discussed the recent U.S. Department of Labor rule regarding worker classification under the Fair Labor Standards Act (FLSA). And while the DOL's rule may force some employers to change their policies, employee misclassification is not exactly a new concept in some parts of the country. Of course, I'm talking about California. Some background:

Almost six years ago, there was a California Supreme Court decision referred to as the Dynamex case. In Dynamex, the court held that California should use the stringent "ABC Test" when determining worker classification. And about a year later, Governor Gavin Newsome signed a law - Assembly Bill 5 (AB5) - that essentially made the Dynamex decision the law of California. Since Dynamex and AB5, you are more or less guilty until proven innocent when it comes to worker misclassification in California.

Fast forward to present day (that's right, just skip right over the pandemic - you're welcome) and read about a settlement between a hospitality staffing company and the City of San Francisco where the company was left with no choice other than agreed to pay $2.1 million to settle claims it treated its workers as independent freelancers rather than employees. The settlement is the culmination of a lawsuit the city filed in September 2023.

Whether it's the DOL, local governments, or plaintiffs' attorneys, these misclassification cases are only going to heat up. If you utilize freelancers or contractors, take a moment to see if that's really what you want to do (while we always enjoy our conversations, trust us, there are easier ways to get our attention than scheduling a meeting to discuss your lawsuit).

Thank you for reading. If you enjoy this newsletter, be sure to check out our newest addition - the Business Blog! Check it out for helpful tips and updates (and less fearmongering) on all things business law related.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.