As this most noteworthy of years draws to a close, it is time to speculate on what issues employers might encounter in 2021. In doing so, we wish to note the recent passing of an icon in the entertainment field, Jeopardy host Alex Trebek. Thus, in true Jeopardy fashion, we will state each of our critical points in the form of a question.
This law has been passed in seven states and a number of municipalities to ban discrimination based on hair styles
Answer: What is the CROWN Act?
As we reported in our article entitled Hairstyle Discrimination Laws May Be the Coming Wave, hairstyle discrimination may be on the cutting edge of discrimination law. Thus far, seven states (California, Colorado, Maryland, New York, New Jersey, Virginia, and Washington) have passed the CROWN (Create a Respectful and Open Workplace for Natural Hair) Act, a uniform law designed to address discrimination based on particular hairstyles. This new law defines “race”, for purposes of anti-discrimination laws, to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” This new definition explicitly includes “braids, locks, and twists.”
In short, this law asserts that hairstyles are intrinsically associated with race or ethnicity and that treating them differently because they do not meet the employer’s view of what is “neat” or “professional” constitutes discrimination under Title VII. The House of Representatives passed this bill in September but no vote has yet been scheduled in the Senate. We expect this to be a fast-growing area discrimination law.
This guarantee of a basic payment to which Minnesota workers are entitled beyond the requirements of federal law increases on Jan. 1.
Answer: What is Minnesota’s minimum wage?
Effective Jan.1, 2021, non-exempt workers for a large employer (defined as “any enterprise with annual gross revenues of $500,000 or more”) are entitled to a guaranteed minimum wage of $10.08 per hour. This is higher than the federally mandated minimum of $7.25 per hour so those Minnesota enterprises meeting the “large employer” definition should not be lured into thinking that they are legally compliant just because they satisfy the federal standard.
Recent Supreme Court Decisions Have Prompted the EEOC to Revise its Compliance Manual on this important equal employment concept.
Answer: What is Religious Discrimination?
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public input on its updated Compliance Manual on Religious Discrimination. This is intended to address the increasing protections that recent US Supreme Court decisions have afforded to both employees and employers regarding their religious beliefs.
Although Guidances like this do not have the force of law, they are important in revealing how the agency will pursue (or not pursue) claims invoking religious beliefs. The Guidance:
– Emphasizes the employer’s obligation to accommodate an employee’s religious beliefs;
– Encourages the interactive process when considering accommodation;
– Promotes a balance between an employee’s religious obligation to proselytize with a co-worker’s right to be free from unwelcomed intrusions based on religion;
– Explains the factors evaluated to determine if an employer is a religious institution and therefore exempt from Title VII’s general prohibition against discrimination because of religion; and
– Outlines the application of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, which clarified the ministerial exception to claims under discrimination laws for employment decisions affecting employees that perform critical religious duties.
The new Guidance could be in for some additional revision in a Biden administration so the precise contours of the final version will be very interesting to see.
Employers around the country are likely to engage in this practice to adjust to the eventual return to the “new normal”
Answer: What is “Post-COVID layoff”?
Minnesota industrial giant 3M recently announced that they are laying off approximately 2,900 people due to the pandemic having “advanced the pace of change and disrupted end markets around the world, increasing the need for companies to adapt faster.” In other words, things have really changed.
As employers begin to eye a return to more complete operations, they will surely find (if they have not already done so) that their workforce should not look the same as it did before for reasons relating to:
– Industry change. The altered state of retail, for example, has led consumers to discover that most of what they used to buy in stores is readily available through online shopping. Fewer brick-and-mortar stores means fewer people staffing them;
– Job redundancy. Many employers are learning that certain jobs that existed pre-pandemic simply do not need to be filled. In some cases, the duties of furloughed employees were absorbed effectively enough by other workers that there just is no reason to restore the furloughed worker. In other cases, revised business strategies and streamlined operations mean that the temporary layoffs instituted during the pandemic should become permanent.
– Telecommuting. The change in workforce location has brought about a revised idea of how a great many jobs should be constructed and how productivity will be monitored and ensured.
As businesses continue to open back up, it will be wise to review and seek counsel on the interplay of federal and state leave laws, collective bargaining agreements, unemployment compensation statutes and other legal frameworks.
Bottom Line
Yes, 2020 has been quite the year but don’t let your guard down; 2021 will be full of interesting answers and questions.