EMPLOYMENT LAW

  • IN THE AGE OF LEGAL WEED, NEW BREATH TESTS SHOW PROMISE FOR EMPLOYERS

    AUTHOR: // CATEGORY: Employment Law, Uncategorized

    Employers have never had accurate drug testing options to determine when an employee might have ingested marijuana and, therefore, if they are likely to still be impaired. So most employers have policies that impose a maximum penalty for any positive test for the drug.

    New “breathalyzer” tests slated for release in 2020 use advanced tech to measure whether an individual has recently smoked, vaped or eaten marijuana products.

    Quick drug testing results

    The devices return results immediately, so employers can figure out in real time whether an employee is impaired and should be kept from working.

    Current tests detect cannabis use as long as 30 days before
    testing, so they can’t show whether someone is high right now or used the drug
    while off duty.

    Employers are most concerned when it comes to safety-sensitive activities, including operating dangerous equipment or driving.

    And, with marijuana use now legal in 33 states and Washington DC, employers have to find a balance between safety concerns, zero-tolerance drug policies and both medical and recreational drug use.

    Drug testing standards lacking

    Two recent announcements highlight the new tests’ capabilities and their potential shortcomings.

    Both tests, one under development at the University of Pittsburgh and one from startup Hound Labs slated for commercial release in 2020, measure the amount of THC, pot’s primary psychoactive compound, in an individual’s breath.

    Both products share a problem, however – unlike with alcohol, there is no legal standard for impairment based on the amount of THC detected by the testing technology.

    Hound Labs says its product will still let employers make a call about whether an employee is fit for work by indicating how recently they ingested a THC-containing substance.

    Doug Boxer, Hound Labs’ chief of policy and strategic partnerships told Business Insurance that its breathalyzer detects use within two to three hours before testing.

    He said that research shows that’s when users are most impaired.

    The results of Hound Labs’ test are available within 12 minutes, according to the company, which is quick enough for employers to decide whether an employee can be allowed to work.

    The post In the age of legal weed, new breath tests show promise for employers appeared first on HR Morning.

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  • INDEPENDENT CONTRACTOR OR EMPLOYEE? $4.5 MILLION SAYS YOU BETTER BE SURE

    AUTHOR: // CATEGORY: Employment Law, FLSA (Fair Labor Standards Act)

    In another in a recent string of employee misclassification cases, the owners of a Philadelphia strip club made dancers sign contracts stating they were independent contractors, rather than employees of the club.

    But an appeals court agreed with a jury that the employer exerted “overwhelming control” over the terms of the dancers’ work and upheld a $4.5 million jury award for unpaid minimum wages and unjust enrichment.

    The club owners argued in the original case and appeal that
    the dancers had control over hours, and whether or not they performed private
    dances.

    In its analysis, the court noted that the employer “established available shift times; fined dancers for tardiness; gave instructions on physical appearance and dictated hair, dress, and makeup choices; established several dance-floor rules; banned changing into street clothes before the end of shifts; and set the price and duration of all private dances.”

    Classification isn’t up to employers or workers

    Meanwhile, as this and other cases have demonstrated, courts aren’t interested in whether or not a worker signs an agreement stating they are a contractor when determining employee misclassification.

    Instead, whether an employer has misclassified an employee depends only on who makes decisions about someone’s work and work conditions.

    The size of this award is not an outlier.

    In another case involving exotic dancers, a New York City “gentlemen’s club” had to pay $15 million to compensate 1,900 dancers for unpaid wages and compensation.

    And, while it might be tempting to focus on the “exotic” aspect of the workers in this case, similar employee misclassification rulings cover delivery drivers, franchisees, and other very mainstream occupations.

    The post Independent contractor or employee? $4.5 million says you better be sure appeared first on HR Morning.

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  • NLRB: SOCIAL MEDIA POLICY CAN’T REQUIRE EMPLOYEES TO USE REAL NAMES ONLINE

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law

    Time to double-check your social media policies.

    The National Labor Relations Board (NLRB) has released a 2018 advice memo from its Office of General Counsel regarding “whether various Employer [CVS Health] social media rules are unlawfully overbroad“ under the National Labor Relations Act (NLRA).

    The memo delivers mixed news for
    employers — the NLRB found that two of CVS’ social media policies did violate
    workers’ rights under the NLRA. But the rest of the company’s social media
    policies fall within the law.

    So, what rights did CVS violate in its social media policies?

    The two sections of CVS’ policy the Board identifies as unlawful prohibited activities protected under NLRA Section 7.

    The unlawful policies, it said, impinged on workers’ rights to “discuss with each other “wages, working conditions or employment disputes,” and to “engage in concerted activities for their mutual benefit.”

    Those rights were included in the NLRA to protect workers’ rights to organize and to publicize what they see as unfair, unsafe, or illegal work conditions.

    Who posted this?

    One of the things CVS got wrong, the board said, was trying to force employees to identify themselves by their real name any time they discussed anything about the company or its activities using social media.

    But, NLRB said, “requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.”

    And the company’s restriction on undefined “employee information” on social media also broke the rules.

    “While the employer has a
    legitimate business interest in keeping customers’ and employees’ personal and
    medical information confidential,” the memo says, “it has no legitimate
    interest in preventing employees from sharing contact information or discussing
    wages, working conditions or employment disputes.”

    OK to ban uncivil, illegal posts

    The board found no problem with CVS
    saying employees can’t post material that’s “discriminatory, harassing,
    bullying, threatening, defamatory or unlawful or any content, images or photos
    that they don’t have the right to use.”

    The decisions, the Board said, are “consistent
    with the Board’s ‘duty to strike the proper balance between …  asserted business justifications and the
    invasion of employee rights … focusing on the perspective of employees.”

    What does the memo mean for your organization?

    For starters, you need to review your handbooks, Code of Conduct and other formal policy statements for any language that limits workers’ Section 7 rights and modify or get rid of it altogether.

    But you can’t stop there. Other federal, state and municipal laws and regulations specifically protect workers’ rights to discuss discrimination, harassment, retaliation and safety.

    And many states frown on employers trying to control workers’ (legal) off-duty activities.

    This is a good time to check your
    policies against those, as well.

    The post NLRB: Social media policy can’t require employees to use real names online appeared first on HR Morning.

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  • WORKER’S FMLA BREAK IN MEXICO PROVES EXPENSIVE – FOR HIS EMPLOYER

    AUTHOR: // CATEGORY: Answers to Tricky HR Questions, Employment Law, FMLA (Family Medical Leave Act), Uncategorized

    Any HR pro would raise an eyebrow reading the broad outline of this FMLA abuse investigation.

    An employee schedules a knee surgery, then postpones that procedure to have a different operation done to remove a tumor on his foot.

    While he’s out on FMLA leave, an employee takes a vacation trip to Mexico. After he gets back, he lets the employer know he might soon request additional FMLA leave to have the postponed surgery on his knee.

    Already annoyed about the possible follow-on leave request, the employer finds out about the vacation, investigates possible FMLA abuse and sees a video of the employee lifting luggage out of a car.

    In spite of the employee’s argument that his activities on vacation complied with doctor’s orders, the employer fires him for FMLA abuse.

    Took FMLA abuse case to court

    Seem pretty clear cut? The employer thought so and decided not to settle when the employee sued for retaliatory termination under FMLA, ADA and Massachusetts discrimination law.

    In the end, however, a jury heard a more detailed version of the story and awarded the fired employee more than a million dollars in damages.

    Appeals went all the way to the Massachusetts Supreme Judicial Court, where judges upheld essentially all of the huge award. (DaPrato v. Massachusetts Water Resources Authority).

    The court’s agreement with the original jury decision provides a valuable reminder that FMLA investigations and related employment decisions need to be thorough, carefully documented, and conducted calmly based on facts rather than emotion.

    What the employer got wrong

    Of course, employers have the right to terminate an FMLA abuser. And even if it gets to court, many organizations successfully fend off claims of interference and/or retaliation. 

    So, why did this employer miss so badly in deciding that the employee had abused FMLA leave and deserved to be fired?

    First of all, the employer got some basics wrong.

    The HR director told the court that she believed that an employee out on FMLA could not take a vacation during their leave.

    The court made it clear that there is no prohibition against someone recovering anywhere he or she wants to during medically-approved leave.

    But, said the court, “an employer may validly consider an employee’s conduct on vacation—or, for that matter, anywhere—that is inconsistent with his or her claimed reasons for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used. “

    Doctor’s orders key to FMLA determinations

    The employee said his conduct wasn’t inconsistent with his doctor’s instructions, which said he needed six to eight weeks of FMLA leave, should wear a walking boot, and needed to avoid some putting a lot of weight on his foot for a period.

    He was following those instructions, he said – wearing the boot and being very careful not to put excessive weight on his foot.

    And the court agreed. The Supreme court’s decision noted “An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.”

    “Shock, outrage and offense”

    When HR recommended he should be fired for FMLA abuse, however, it didn’t consider those factors. Nor did HR share that information with senior management.

    Since the employer ignored the plaintiff’s medical records and FMLA application, the trial court said, the decision to fire the employee was instead based on “shock, outrage and offense” because the employee indicated he might request more FMLA leave for knee surgery.

    And the evidence that the decision was actually driven by emotion came directly from HR’s emails.

    The employee asked for a copy of the organization’s salary continuation policy in case he needed it when deciding about requesting leave for the planned knee surgery.

    The HR director didn’t provide a copy of the policy. Instead, she forwarded the request to an HR manager with a note asking, “Is he serious?” The HR manager replied, “OMG.”

    Later that day, the HR director launched the FMLA investigation.

    A $1.3 million lesson

    The Massachusetts Supreme Judicial Court upheld the jury award in the original case – $206,000 for back pay and lost future income and benefits, $200,000 for emotional distress and $715,385 in punitive damages. It also let stand the trial court’s award of $634,133 in liquidated damages and attorney fees.

    In the end, the company learned a series of very expensive lessons. Make sure employment actions, especially around FMLA, are based on clear facts rather than emotion. Review all documentation carefully when weighing an employee’s version of events. And remind all your execs and managers about the risk that careless communication might later resurface in court.

    One final caution that might help other HR pros from hurting their case if they end up in court over an FMLA abuse claim – no time travel allowed.

    The employer tried to back up its FMLA abuse claim using photos of the employee in Mexico standing and holding a large fish. But, the court noted, it only got ahold of those pictures AFTER it fired the employee, so it couldn’t have used them as part of its decision making.

    The post Worker’s FMLA break in Mexico proves expensive – for his employer appeared first on HR Morning.

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  • JUDGE SEES AGE DISCRIMINATION, JURY AWARDS $15 MILLION

    AUTHOR: // CATEGORY: Employment Law, Uncategorized

    Ageism continues costing employers dearly.

    The Los Angeles Times is on the hook for a $15.4 million jury award for demoting an older worker.

    It’s just the most recent example of just how much emphasis HR pros should put on educating managers and executives on how to avoid age discrimination.

    Former LA Times sports columnist T.J. Simers sued the paper in October 2013 after the paper first reduced and then eliminated his column.

    The paper claimed that Simers’ work quality declined after he developed migraines.

    Simers pointed to the onset of the migraines as the beginning of a change in his responsibilities.

    And he said, he faced increased criticism from managers who had previously praised his work.

    Intolerable conditions

    He quit, claiming intolerable working conditions and age discrimination and sued the paper and its then-owner Tribune Publishing.

    A jury awarded Simers $7.1 million in economic and non-economic damages in 2015, but the judge in the trial later voided much of the original judgment.

    Simers and Tribune Publishing both appealed the decision.

    A second, more expensive award

    In January 2018, a appeals court tossed the intolerable working conditions claim.

    But, the court said, a jury should reconsider whether Simers was the victim of age and disability discrimination.

    This time the jury awarded Simers $15.4 million for personal and emotional suffering caused by the paper’s treatment of the writer after his health problems started.

    Tribune Publishing could still appeal the latest decision.

    However, if it stands, the company could be looking at a $22 million bill after interest is included, according to Simers’ lawyer.

    Rising tide of ageism claims

    This case follows other recent multi-million dollar age discrimination judgments against Google, Lockheed Martin and other large employers in recent years.

    It looks like the tide of age-related discrimination lawsuits will only keep rising as boomer workers age.

    In June four Ford Motor company workers sued, claiming that the auto giant targeted them and other older workers in its ongoing restructuring.

    And just this week, the principal at a New Jersey public school sued, saying he was pushed aside because of his age.

    He claims the school forced him to move his workspace from his former office into an electrical closet after it hired a second, younger principal.

    The post Judge sees age discrimination, jury awards $15 million appeared first on HR Morning.

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  • DEVELOPING A CBD OIL POLICY? IT GETS COMPLICATED …

    AUTHOR: // CATEGORY: Employment Law, Management

    Just when you thought you had a handle on how your company policies align with laws on medical marijuana, along comes CBD oil.

    Cannabidiol, or CBD, comes from either the marijuana plant or the hemp plant. Made available to consumers by the 2018 Farm Bill, which allows for production and sale of CBD products.

    CBD is advertised as an
    anti-convulsent, anti-diabetic and anti-psychotic, as well as an aid for pain
    relief, anxiety, depression and sleep.

    As a result, the market is booming for CBD products in oil form, vapors, beverages (e.g., coffee K-Cups) and infused edibles (chocolates and gummies).

    CBD is not psychoactive, so employees are generally not at risk of getting intoxicated or impaired with use. It can, however, show up on a drug test as marijuana. That’s where your workplace policies come in.

    The CBD rub

    CBD isn’t regulated by the FDA,
    although some states, like Texas and Georgia, are starting to legalize and
    regulate it. In most of the U.S., your employees don’t really know what they’re
    ingesting with CBD products.

    Furthermore, pure CBD oil won’t report a positive result for marijuana in a drug test because tests typically look for tetrahydrocannabinols (THC) levels that are too low to be detected in pure CBD.

    But some of these unregulated products
    that tout themselves as “THC-free” or “CBD pure” have been tested to have THC.

    That’s why CBD presents the same challenges to employers as medical marijuana, as indicated on JD Supra:

    •   Do job
    applicants know what’s in their CBD product?
    And what impact, if any, does
    the CBD use have on their employment?

    •   What if a worker gets a positive drug test result? Even if an employee presents you with a “CBD pure” product as proof, how will you know what really caused the positive result? Are they also using recreational marijuana or unknowingly using CBD spiked with THC?

    What to do

    Before taking action against CBD users, here are some guidelines when developing a CBD oil company policy:

    •   Consider
    revising policies to address CBD use.
    Employers in states with medical
    marijuana laws in place may have a duty to accommodate the underlying condition
    prompting CBD use.

    •   Train managers. They’ll need to know how to address situations where an employee defends a hot test by using CBD.

    Finally, in this evolving landscape,
    review the laws of your state, work with employment counsel and prepare to be
    flexible until more CBD rules and regs are in place.

    The post Developing a CBD oil policy? It gets complicated … appeared first on HR Morning.

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  • GOOGLE HR FACES ANOTHER PR DISASTER

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Latest News & Views, Uncategorized

    “I’m Not Returning to Google After Maternity Leave, and Here is Why.” That was the subject line of a post alleging pregnancy discrimination and retaliation that went up on an internal Google message board for new and expectant mothers.

    The unnamed Google worker alleges that her manager actively retaliated against her after she told HR about the manager’s comments disparaging pregnant women. Thousands of her co-workers have since read the memo and it has been published by VICE.

    Angry messages and public shaming

    The employee says that, despite assurances from HR that she would not face any retaliation from her supervisor for reporting the pregnancy discrimination allegations, her manager began sending angry messages, ignoring her in meetings and humiliating her in front of her peers.

    The abusive interactions, she says, impacted her health and caused her to be concerned about her unborn baby.

    Joining a new team did not resolve the situation, she says.

    And, she says in the memo, after joinng the new group she was given fewer responsibilities and told not to take on more managerial duties or attend some management events until she returned from maternity leave.

    In the end, she says, she reported that she was being discriminated against because she was pregnant and HR launched an investigation.

    HR’s findings? Poor communication and inadvertent exclusion from management gatherings due to administrative errors. It did not find that the employee’s manager discriminated against her.

    HR also told her, she says, that there was no evidence she was discouraged from taking early leave when she developed complications with her pregnancy.

    Damage control

    The employee did not indicate whether she plans to sue Google under The Pregnancy Discrimination Act. But, if her allegations about hostile messages and unfair reductions in her responsibilities are backed up by internal communications records, Google could face a damaging court battle or an expensive settlement.

    Google released a statement after the VICE story came out, saying, “We prohibit retaliation in the workplace and publicly share our very clear policy. To make sure that no complaint raised goes unheard at Google, we give employees multiple channels to report concerns, including anonymously, and investigate all allegations of retaliation.”

    Reminder for other employers

    Any company as large and high-profile as Alphabet Inc.’s Google is going to have its share of employee complaints and HR missteps.

    But the Mountain View, CA-based tech behemoth has faced both complaints from many unhappy workers and an unusually public discussion of its response to those complaints.

    Google workers have sent all-hands emails on issues ranging from sexual harassment and retaliation, to racial and gender-based discrimination, to Pentagon contracts. And a steady stream of those internal messages has leaked out onto social media and gone viral.

    Regardless of how this allegation of pregnancy discrimination and retaliation plays out, it is yet another blow to Google’s reputation as an employer.

    And it’s another useful reminder that all employers need to be vigilant in training employees on compliance obligations and identifying, addressing, and rectifying instances of pregnancy and other discrimination at every level of their workforce.

    The post Google HR faces another PR disaster appeared first on HR Morning.

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  • STOP SUMMERTIME FMLA ABUSE: THE FRIDAY MONDAY LEAVE ACT

    AUTHOR: // CATEGORY: Employment Law, Employment Law>FMLA (Family Medical Leave Act), FMLA (Family Medical Leave Act)

    Does summertime feel like FMLA stands for the “Friday Monday Leave Act” instead of the Family and Medical Leave Act?

    From late May to early September, you expect some empty desks or vacant work stations because of pre-approved PTO.

    What can’t be planned for is people making FMLA claims for absence that may not be on the up-and-up.

    Keep employees honest

    Don’t hesitate to put a system in place and use it to protect the company from lost productivity due to FMLA abuse.

    FMLA is intended to protect workers from losing their job over a medical or family emergency.

    It’s never meant for “It’s too nice outside to go to the office” or “The kids want to go to the beach” time off.

    5 ways to stop FMLA abuse

    That’s why Jeff Nowak, author of the FMLAInsights.com blog, recommends the following tactics to make sure all time taken as FMLA fits the criteria:

    Get written leave requests. You can’t deny FMLA if the worker provides verbal notice of leave and gives a reason why they can’t follow proper procedures to request it in writing. However, ask for their request upon their return.

    • Ask questions. When FMLA is requested, ask the worker: What is the reason for your FMLA absence? What functions of your job can you not perform? Will you see a doctor?

    Have call-in procedures. If you don’t have written policies requiring when an employee should report an absence, work with legal counsel to get this started. It also allows you to address staffing issues early in the workday.

    Certify and re-certify. Many employers fail to request the medical certification form from the doctor which states why an employee is in need of leave. Make it a practice to request it and keep it handy. Then request recertification every 30 days.

    Follow patterns. If the employee takes FMLA only around holidays or weekends, check with their doctor to confirm if this is related to their health condition. But only ask about what’s covered on the certification form.

    If you aren’t using these guidelines, meet with employment counsel to audit your FMLA policies.

    Use best practices to combat abuse and effectively administer FMLA in your workplace.

    The post Stop summertime FMLA abuse: The Friday Monday Leave Act appeared first on HRMorning.com.

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  • HOUSE-PASSED GREEN CARD REVAMP FACES HURDLES

    AUTHOR: // CATEGORY: Employment Law, Latest News & Views

    The U.S. House of Representatives voted July 10 to eliminate limits on the percentage of employment-based permanent residency work visas (green cards) awarded to immigrants from any one country.

    The measure would apply to two types of work visas – EB-2 visas, for workers with advanced degrees or exceptional ability and EB-3 visas, for skilled workers and professionals.

    Sponsors hope the bill would relieve backlogs of skilled workers seeking permanent U.S. work permits.

    Visa issues worsen skilled labor shortage

    Supporters of the measure say that backlogs for skilled workers seeking permanent work visas – which can stretch decades – are making the skilled labor shortage worse and hurting America companies’ competitiveness.

    Supporters of the bill include the U.S. Chamber of Commerce and the Society for Human Resource Management (SHRM).

    SHRM issued a press release saying, “Eliminating employment per-country caps will create a first-come, first-served green card system, putting talent and skills first so we can meet the current and future workforce needs of this country.”

    The industry group called the measure “an important first step in addressing workplace immigration issues.”

    Tech companies are also backing the measure, since they employ a huge number of H-1B visa workers, whose permits last just six years.

    Each year, hundreds are forced to leave the U.S. and their jobs when temporary work permits expire.

    Employers say that the turnover, especially among highly-skilled tech workers, is costly and disruptive.

    Opponents fear impact on American workers

    The bill has widespread backing from business groups and bipartisan support in the House and Senate.

    Still, the measure is not guaranteed to pass the Senate and get to President Trump’s desk or to get his signature if it does.

    Opponents, including members of the administration, see the measure hurting American workers.

    Others worry that if per-country limits on the number of green cards are lifted, almost all residency permits will go to workers and family members from India and China, where the backlog is highest.

    And that seems to be guaranteed under the current version of the bill.

    Quotas now limit the number of visas awarded to immigrants from any one country to 7% of the 140,000 employment-based residency permits issued each year.

    Indian workers would get nearly all green cards after 2020

    The bill would increase that to 85% of green cards going to Chinese and Indian skilled workers and their families in 2020, with the remainder reserved for to workers from all other countries.

    In 2021 and 2022, the percentage of green cards going to countries other than India and China would drop to just 10% of the total.

    Because of the huge number of Indians awaiting green cards, they would obtain the vast majority of permanent visas for about a decade.

    If signed into law, the quota changes would apply as of October 1, at the start of the government’s fiscal year 2020.

    The post House-passed green card revamp faces hurdles appeared first on HRMorning.

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  • CALIFORNIA BAN ON HAIRSTYLE DISCRIMINATION GOES INTO FORCE

    AUTHOR: // CATEGORY: Discrimination & Harassment, Employment Law, Uncategorized

    California law now prohibits employers from implementing dress and appearance policies that discriminate against employees or job applicants based on how they wear their hair.

    Governor Gavin Newsom on July 3 signed into law the CROWN Act (Creating a Respectful and Open Workplace for Natural Hair).

    Grooming standards as proxy for race and source of bias

    The law, which is now part of California’s Fair Employment and Housing Act prohibits discrimination in employment and education based on hairstyles that feature “traits historically associated with one’s race, such as hair texture and protective hairstyles.”

    All employers with operations in the state should revisit and revise any personal grooming policies that might run afoul of the law.

    And employers should quickly train all personnel involved in interviewing and hiring, to prevent bias against candidates who choose to wear “hairstyles [such] as braids, locks, and twists.”

    While not restricted to hairstyles most often associated with African Americans, the Act states that hairstyles remain a proxy for race and a source of hiring bias, “especially for Black individuals.”

    Discriminatory dress codes

    The Act also refers to discriminatory dress code policies that prohibit or discourage religious dress.

    It defines religious dress as including “religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed.”

    The CROWN Act has also been introduced in New York and New Jersey, with other states and municipalities likely to follow.

    Indeed, even before the state legislature acts, the New York City Commission on Human Rights in February issued its Legal Enforcement Guidance on Race Discrimination on the Basis of Hair.

    Those regulations follow the Crown Act’s language and focus on “eliminate[ing] dress code and grooming policies that prohibit natural hair, which are likely to deter Black applicants and burden or punish Black employees. “

    The post California ban on hairstyle discrimination goes into force appeared first on HRMorning.

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