Litigation Trends 2024

LITIGATION TRENDS 2024 | 49 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C 48 | Weil, Gotshal & Manges LLP Employment E M P consider a confidentiality preference agreement – the amendment provides for “up to” a 21-day period, so now confidentiality preference agreements can be treated similar to the waiver of age claims (the new legislation does not amend Section 5003-B of the New York Civil Practice Law & Rules requiring a full 21-day consideration period prior to signing a confidentiality preference agreement in connection with a claim filed in New York state court). Notably, the seven-day revocation period applicable to confidentiality preference agreements is still mandatory and non-waivable. Effective August 7, 2023, Colorado also prohibits NDAs and other agreements between employers and employees from limiting an employee’s ability to disclose or discuss the underlying facts of any alleged discriminatory or unfair employment practice, subject to certain limited exceptions, including but not limited to when the agreement applies equally to all parties, along with other specific requirements that must be memorialized and signed by all parties in an addendum to the agreement. Colorado’s statute also penalizes employers $5,000 plus actual damages per violation. In addition, effective June 22, 2023, Rhode Island now prohibits employers from conditioning employment on signing any agreement that requires alleged violations of civil rights remain confidential or non-disparagement agreements concerning alleged violations of civil rights or alleged unlawful conduct; notably, NDAs and non-disparagement agreements concerning other aspects of company business remain permissible. Lastly, proposed Connecticut legislation would also ban NDAs concerning workplace misconduct. New Protected Categories and Characteristics In 2023, several states and cities continued to introduce additional protected categories and characteristics under their state and local anti-discrimination laws, including, for example: ■ Height and Weight: New York City joined several states and localities prohibiting discrimination against employees and job candidates based on actual or perceived height or weight, subject to certain exceptions. Similar legislation is currently pending in Massachusetts, New Jersey, New York State, and Vermont. ■ Hair Texture/Hairstyle: Arkansas, Minnesota, and Texas banned racial discrimination based on employees and job candidates’ hair texture or hairstyle, joining nearly half of U.S. states that have adopted versions of California’s 2019 legislation. ■ Cannabis Use: California and Washington, D.C. prohibited employers from taking adverse action against employees and job candidates for their use of cannabis off-premises during non-working hours. Other states such as New Jersey and New York already have similar prohibitions in place. ■ Homeless Status: Washington, D.C. prohibited discrimination based on employees and job candidates’ “homeless status,” previously introduced by Rhode Island, Illinois, and Connecticut. ■ Caste: Seattle, WA and Fresno, CA became the first U.S. jurisdictions to ban caste discrimination. Similar state legislation was proposed but ultimately vetoed in California. Additional Rights to Paid and Unpaid Leave Several states also implemented laws increasing the state-mandated minimum amount of paid sick leave effective January 1, 2024. For example: ■ California increased its existing requirement that employers provide 3 days, or 24 hours, of annual paid sick leave to 5 days, or 40 hours, and mandated that employees are entitled to accrue up to 10 days, or 80 hours, of unused paid sick leave. ■ Minnesota now entitles employees to accrue 1 hour of sick and safe time (paid leave that can be used for health and safety care for the

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