Employment Law: Contracts, EEO, and Regulations

Emily R. Pidot Introduction

• She is a Partner at Paul Hastings LLP.
• She is a Partner in the Employment Law Department.
• She is the Chair of the New York office.
• She has over 20 years of experience advising employers and litigating disputes.
• She is recognized by Chambers and Partners, The Legal 500, and SuperLawyers.
• She is a member of the American Employment Law Council and a frequent lecturer on employment law topics.

Employment Law 101 Outline

• Discusses contracts between employers and employees.
• Covers what EEO is.
• Explores "whistleblower" claims.
• Explains Wage and Hour regulations.
• Addresses post-employment restrictive covenants.
• Outlines leave laws.
• Clarifies the difference between labor law and employment law.

Regulation on Multiple Levels

• Common law exists.
• Federal law exists
• State and local laws exist.
• Concurrent regulation is in place.
• Federal preemption can occur.
• Enforcement agencies operate at all levels.

Contractual Relationship Between Employer and Employees

• A contract is a bargained-for exchange supported by consideration.
• "At-will" employment is a doctrine related to contracts.
• Employment contracts do not always need to be written.
• The Statute of Frauds may require certain contracts to be written.
• Promissory estoppel can apply.
• Written representations, such as in a handbook, may form the basis of a contract claim.
• Key terms to consider in employment contracts: job description, hours, compensation, fixed term or "at-will" status, termination consequences, confidentiality, inventions, post-employment restrictions, and arbitration of disputes.

EEO (Equal Employment Opportunity)

• EEO is a statutory exception to the "at-will" doctrine.
• Laws protect against discrimination, disparate treatment, disparate impact, harassment, and retaliation.

Employment Laws: A Brief History

• 1866: Civil Rights Act (Section 1981) was enacted.
• 1935: National Labor Relations Act was enacted.
• 1938: Fair Labor Standards Act was enacted.
• 1963: Equal Pay Act was enacted.
• 1964: Civil Rights Act (Title VII) was enacted.
• 1967: Age Discrimination in Employment Act was enacted.
• 1978: Pregnancy Discrimination Act was enacted.
• 1990: Americans with Disabilities Act was enacted.

EEO Laws: Concurrent Federal, State & Local Coverage

• Federal statutes like Title VII of the Civil Rights Act of 1964, Pregnancy Discrimination Act, Equal Pay Act, Age Discrimination and Employment Act of 1964, Americans with Disabilities Act, Civil Rights Act of 1866 (Section 1981), Genetic Information Nondiscrimination Act, and Pregnant Workers Fairness Act exist.
• State and Local Statutes: New York State Human Rights Law, New York Equal Pay Law, and New York City Human Rights Law also exist.

Anti-Discrimination Laws

• Laws allow for the recovery of damages and/or equitable relief.
• Some statutes like Title VII, limit monetary relief.
• Other statutes, such as the NYC Human Rights Law, do not limit monetary relief.
• Most states have their own anti-discrimination laws and enforcing agencies.

Prohibited Grounds for Discrimination

• Discrimination is prohibited based on race, color, religion/creed, ethnicity, national origin, and sex.
• Discrimination is prohibited based on gender, gender identity, sexual orientation, pregnancy, related conditions, and age (typically 40+).
• Discrimination is prohibited based on disability, mental and physical health, and genetic information.
• In certain jurisdictions, discrimination is prohibited based on employment status, credit history, caregiver status, family responsibilities, weight, height, and hair styles.
• In certain jurisdictions, discrimination is prohibited based on participation in activities outside of work, arrest/conviction record, sexual/reproductive health decisions, marital/domestic partner status, and victim of domestic violence status.

Prohibited Conduct

• Disparate treatment: intentionally treating an employee or applicant differently based on a protected characteristic.
• Disparate impact: seemingly neutral practices that unintentionally harm employees in a protected class.
• Harassment is prohibited based on a protected characteristic.
• Retaliation is prohibited for reporting discrimination or harassment or cooperating with an investigation

Equal Pay

• Equal/Fair Pay laws exist and unnecessary proof of intent to discriminate is not needed.
• Focus is on the similarity of job duties.
• The burden shifts to the employer to justify differences in pay.
• Differeneces exist between Federal and State;
  • Equal Pay Act compared with New York Labor Law Section 194
• Protected Characteristic
  • Under the Equal Pay Act, it is sex. Under the New York Law, it protects "age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status.”
• Comparator
  • Under the Equal Pay Act, it is “equal work on jobs the performance of which requires equal skill, effort, and responsibility ..." Under the New York Law, it is “substantially similar work, when viewed as a composite of skill, effort, and responsibility ...”
• Defense
  • Under the Equal Pay Act, it is“ … a differential based on any other factor other than sex." Under the New York Law, it is“ … a bona fide factor other than status … [that is] job related … and consistent with business necessity.”

EEO, Affirmative Action, and DEI

• Affirmative Action aims to ensure EEO through self-critical analysis by federal contractors.
• Voluntary affirmative action may provide preferences based on protected characteristics, but this is very narrowly available.
• Diversity, Equity, and Inclusion (DEI) are often employer-driven programs and not legal constructs.
• DEI programs respond to civil rights, social movements, and ESG concerns as well as globalization.
• DEI programs can promote legal compliance and involve risk calculus for goal setting.

Whistleblower Claims

• There is concurrent federal, state, and local coverage of "whistleblower" claims.
• Common law claims address the function of state law, termination in violation of public policy, and variation in policy definitions.
• Federal statutory claims include the False Claims Act and Sarbanes-Oxley.
• The underlying dispute may be significant in whistleblower cases.

Wage and Hour Law

• Both federal and state governments regulate wage and hour issues.
• Basic issues covered include minimum wage, maximum hours, "exempt" vs. "non-exempt" status, calculation of overtime, and salary basis.
• Some states have more specific requirements around pay frequency, pay stubs, meal/rest breaks, and daily overtime.

Post-Employment Restrictive Covenants

• Restrictions on noncompetition and nonsolicitation are mostly state-governed.
• Common law and statutes apply.
• Restraints on trade are disfavored but can be enforceable if deemed reasonable in scope and supported by a legitimate business interest.
• Remedies for violations are possible.
• The Federal Trade Commission (FTC) rule may be implemented from 2024.

Leave Laws

• Key features of leave laws include time off for specific circumstances, whether it is paid or unpaid, job protection, and private right of action.
• Key Examples include the Family Medical Leave Act (FMLA) and Uniformed Services Employment and Re-employment Rights Act (USERRA).
• The New York Paid Sick Leave Law and New York Paid Family Leave Law also exist.

Labor Law vs. Employment Law

• Labor law is distinct from employment law.
• The National Labor Relations Act primarily governs relationships between employers and labor unions.
• The Act also addresses collective bargaining and worker rights to self-organization.
• The National Labor Relations Board (NLRB) is an independent federal agency that enforces the NLRA.