Dear valued clients and supporters: This month's newsletter will focus on 1) a recent Supreme Court decision significantly impacting employment discrimination lawsuits; 2) NYC's bar on drug testing for marijuana usage; and 3) Westchester County implementing new leave laws for employees.
Before filing claims of employment discrimination based on Title VII of the Civil Rights Act of 1964 ("Title VII") in court, plaintiffs are generally required to file an administrative charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). However, in a decision published on June 3, 2019, the Supreme Court ruled that where a plaintiff does not file a charge with the EEOC prior to filing suit but the defendant fails to raise this as a defense or waits to long to do so, the case may still proceed. As a practical matter, what this means is that if a defendant waits too long to object to a Title VII lawsuit based on a failure to file with the EEOC first, the defendant forfeits the objection and the lawsuit will proceed.
On April 9, 2019, the New York City Council passed a bill that would prohibit the pre-employment drug testing for marijuana by most public and private employers. Mayor Bill de Blasio did not sign or veto the bill within 30 days, which means the bill became law as of May 10, 2019. Local Law 91 of 2019 will take effect one year later, on May 10, 2020. Local Law 91 amends the New York City Human Rights Law to make it an unlawful discriminatory practice for employers, labor organizations, employment agencies, or their agents to require job applicants to submit to the screening for tetrahydrocannabinol (THC). The law would not prohibit employers from testing employees in the workplace for marijuana use. The law also exempts certain jobs from this restriction, such as police officers, most construction workers, commercial drivers, childcare providers, jobs that require such testing under federal or state law, and other positions that involve being entrusted with the health or safety of others. Employers and employee are encouraged to understand their obligations under Local Law 91 before it takes effect next year.
Keeping in stride with New York City law, Westchester County employees this year will be entitled to additional time off for both "Sick" and "Safe" time.Pursuant to the Earned Sick Leave Law ("ESLL") that went into effect on April 10, 2019, employees in Westchester County will start to accrue time off for sick leave starting on July 10 2019. Much like NYC's law, the ESLL requires employers to provide up to 40 hours of sick leave in a calendar year. For employers with more five or more employees, the leave is to be paid; for employers with fewer employers, the leave is unpaid. Overall, with the ESSL set to go into effect and the Safe Time Law expected to be effective as of this fall, employers should review their leave policies to ensure they are in compliance with these new requirements.
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