Management Update
If You Have Employees in Texas, Your Risk of a Sexual Harassment Claim Just Increased
By Jerry L. "Jay" Stovall, Jr.

Texas recently passed two new laws regarding sexual harassment that will impact most employers who have employees in Texas. Both of these new laws go into effect on September 1 of this year.

Senate Bill 45 amends the Texas Labor Code by:
  1. adding a detailed definition of “sexual harassment”
  2. indicating that employers are liable if sex harassment occurs and the employer or its agents or supervisors: a) knew or should have known of the harassment and b) ”fail to take immediate and appropriate corrective action.”

Use of the language ”fail to take immediate and appropriate corrective action” seems to apply a higher standard to avoid liability than required under Federal law (Title VII), which generally requires an employer to take prompt and appropriate corrective action.

  1. Expanding the definition of “employer” to include one who “acts directly in the interests of an employer in relation to an employee.” This would appear to be a significant expansion of who may be liable for sexual harassment of an employee, potentially including not just owners but also supervisors, HR personnel, perhaps even some co-workers, or others who either have control over workplace conduct.

House Bill 21 creates a longer Statute of Limitations for sexual harassment claims:
This new law lengthens the statute of limitations for filing sexual harassment claims from 180 days to 300 days from the date of the alleged harassment. The new, longer limitations period only applies to sexual harassment claims based on conduct that occurs on or after September 21, 2021. The new law does not apply to other forms of discrimination (such as race, disability, gender) which still have the shorter 180-day statute of limitations.
Don’t Miss the August 1 Notice Deadline For Louisiana’s Revised Pregnancy Discrimination Law
By Jerry L. "Jay" Stovall, Jr.

You are probably aware that employers must provide written notice of their right to be free from discrimination based on medical needs arising from pregnancy, childbirth, or related medical conditions to all new employees upon the commencement of their employment. (Act 393, which you can find here

Act 393 becomes effective on August 1, 2021. This means that employers must provide the written notice to all new employees hired on or after August 1, 2021. Employers have until December 1, 2021, to provide the same written notice to existing employees.

Contact your attorney directly if you need assistance in creating the notice required by Act 393 or if you have any questions.
EEOC Issues Guidance on Employment Discrimination Based on Sexual Orientation and Gender Identity
By Jerry L. "Jay" Stovall, Jr.

The EEOC recently issued a guidance regarding its current position on Title VII rights in light of the one-year anniversary of the U.S. Supreme Court’s ruling in the trilogy of cases that we commonly refer to as the Bostock ruling. The guidance contains some specific legal truisms that are worth reiterating.

Employers cannot:

  • Discriminate against applicants and employees based on sexual orientation or gender identity with respect to any aspect of employment.
  • Create or tolerate harassment based on sexual orientation or gender identity by anyone, including customers or clients. This may include intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee.
  • Allow customer preference to influence employment decisions such as hiring, assignment or work, and compensation.
  • Discriminate against an applicant or employee because they do not conform to a sex-based stereotype about feminine or masculine behavior, irrespective of the individual’s sexual orientation or gender identity.
  • Require a transgender employee to dress or use a bathroom in accordance with the employee’s sex assigned at birth.
  • Retaliate against any employee or applicant for opposing employment conduct that the employee reasonably believes to be discriminatory.
  • Discriminate, create, or tolerate harassment against straight or cisgender individuals.
  • Prohibit a transgender worker from dressing or presenting consistent with that person’s gender identity, regardless of customer or co-worker preference or bias.

Action items for employers:

  • If you have not already done so, revise your employee Handbooks to include these “new” protections.
  • Include these protections in your routine harassment/discrimination/retaliation training. (If you do not have a documented training regimen for workers, management, and HR staff, start one now.)
  • Be sure that managers and HR are aware that they cannot make decisions regarding employment based upon customer or client preference to work with or be served by workers who have a different sexual orientation or gender identity.

These are admittedly evolving, hot-button issues, especially the use of restrooms, some of which the U.S. Supreme Court specifically declined to address in its Bostock ruling. “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.” Bottom-line advice to HR—stay abreast of the current law and EEOC guidance; ensure that your written policies are in compliance; train your people constantly, and consistently apply your written policies.
EEOC Issues Guidance Addressing Discrimination Against Transgender Employees
By Jerry L. "Jay" Stovall, Jr.

The EEOC has issued a “technical assistance document” addressing employment discrimination based on sexual orientation or gender identity. You can find the document here: .

The EEOC made clear in the guidance that employers may not discriminate against, or segregate employees based upon perceived or actual customer preference. This applies to both actual sexual preference and transgender status as well as the fact that an employee may not conform to stereotypes related to their biological sex. 

The EEOC also clarified that while employers may provide separate bathrooms and locker rooms for men and women, transgender men must be allowed to use the men’s facilities and transgender women must be allowed to use the women’s facilities. 

The EEOC also explained that the use of pronouns or names inconsistent with an employee’s gender identity could constitute unlawful harassment “in certain circumstances.” However, “although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”

Keep in mind that this guidance does not have the force and effect of law, and it has been publicly criticized by several states Attorneys General, including Jeff Landry. 

The new guidance sheds little light on the applicability of these requirements to religious employers with sincerely held beliefs about human sexuality but notes that “courts and the EEOC consider and apply, on a case-by-case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws.”

Although non-binding (and harshly criticized by 21 state attorneys general), the guidance augurs in favor of additional employee and supervisor training, particularly with respect to preferred pronoun usage.
U.S. DOL Issues NPR Implementing New $15 an Hour Federal Contractor Minimum Wage
By Jerry L. "Jay" Stovall, Jr.

The U.S. Department of Labor issued a Notice of Proposed Rulemaking (you can find it here ) that establishes standards to enforce President Biden’s Executive Order 14026, “Increasing the Minimum Wage for Federal Contractors”. 

EO 14026 and the DOL Rules will directly impact federal contractors in several ways:

  • Effective January 30, 2022, the minimum wage for workers on covered federal contracts will increase to $15 per hour,
  • Ensure that disabled workers on federal contracts receive at least $15 an hour,
  • By 2024 eliminate the tipped minimum wage for federal contract workers, and
  • The federal contract minimum wage will be indexed to inflation.

As a comparison, the current federal contract minimum wage is $10.95 per hour.
President Biden Has Not Banned Non-Compete Agreements, But It Looks Like He Wants To
By Jerry L. "Jay" Stovall, Jr.

President Biden recently issued an Executive Order “Promoting Competition in the American Economy”. The EO does not ban or limit the use of non-compete agreements. But, it does direct the Federal Trade Commission (FTC) to pursue a rulemaking process that could ban or severely restrict the use of non-compete agreements as a matter of federal law. 

You may recall that in 2020 the FTC held public workshops regarding the use of non-compete agreements. Although several meetings were held and papers were written, no action was taken to enact a specific rule or statute.

Unfortunately, it appears as if the challenge to an employer’s ability to use voluntary non-compete agreements may be under a more direct and realistic threat this time. President Biden has been harshly critical of non-compete agreements and has taken the position that they should be banned, or at least heavily restricted. For example, President Biden’s campaign website declared, “As president, Biden will work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets, and outright ban all no-poaching agreements.”

President Biden’s EO establishes a White House Competition Council to coordinate, promote and advance seventy-two (72) different initiatives to “tackle some of the most pressing competition problems across our economy.” The Chair of the FTC will be part of the Council and is specifically “encouraged to consider work with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

It is far from assured that either the White House or the FTC will have the authority to effectively issue regulations curtailing the use of non-competes. Any action that they take will almost certainly be the subject of legal challenge. However, it appears certain that they are going to try.
Relevant Bills of the 2021 Regular Louisiana Legislature Session
By Jerry L. "Jay" Stovall, Jr.

This past Regular Session of the Louisiana Legislature has resulted in several new laws that will impact the HR professional. I will provide a quick rundown of those laws below.

House Bill 459, now Act 474, amends LSA-R.S. 23:1660 and alters the way that employers must file information such as contribution and wage reports with the LWC.

House Bill 707, now Act 406, enacts LSA-R.S. 23:291.2. This new law will preclude employers in most circumstances from requesting or considering an applicant’s arrest record or charges that did not result in a conviction if such information was received in the course of a background check. LSA-R.S. 291.1 defines “background check” as research into the background of a prospective or current employee. The new Act further provides that if an employer does consider an applicant’s criminal history, it must make an individual assessment of whether the applicant’s criminal history has a “direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.” The Act specifies three criteria that an employer must consider when making this decision: nature/gravity of the offense; time elapsed since offense/conviction and nature of the job sought. These criteria are very similar to those proposed previously by the EEOC.

House Bill 151, now Act 455. This Act amends LSA-R.S. 23:1711 and increases the penalties for misclassification of an employee as an independent contractor. The Act also provides a series of criteria that, if met, create a rebuttable presumption that the worker is an independent contractor rather than an employee.

Senate Bill 215, now Act 393, amends the state Pregnancy Discrimination Act, LSA-R.S. 23: 341. The Act expands an employer’s obligations to accommodate an applicant or employee with limitations caused by pregnancy, childbirth or related medical conditions such as: making temporary modifications to physical conditions, altering schedules, break and food schedules, and policies and transferring the employee to a less demanding position. In order to refuse a reasonable accommodation, an employer will be required to prove that doing so would impose an undue hardship on its business operations. The act adopts the definition of “undue hardship” used by the ADA. The Act allows six weeks of protected leave for a “normal pregnancy” and up to four months if the employee is disabled on account of pregnancy, childbirth, or related medical conditions. The Act requires employers to provide new employees and current employees with written notice of their rights under the Act respectively upon hire and by December 1, 2021. This notice must be posted in the workplace.

Each of these new laws goes into effect on August 1, 2021, so employers should start revising their policies and application process right now.
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