On June 25th , 2019, the Kentucky Unemployment Insurance Commission (“Commission”) announced a formal response to the Kentucky Court of Appeals’ holding in Nichols v. Kentucky Unemployment Insurance Commission that determined employers must have attorney representation during appeal hearings and proceedings. The Commission has taken the position that while the case is on appeal before the Kentucky Supreme Court, “there will be no changes to the current practice of allowing representation by non-attorneys in these administrative proceedings.”
As we recently reported, the Kentucky Pregnant Workers Act (the “Act”) takes effect on June 27, 2019. The Act, which applies to Kentucky employers with more than 15 employees, requires reasonable accommodations, including, but not limited to, the need to express breast milk, for employees with limitations related to pregnancy, childbirth, or a related medical condition, unless it would pose an undue hardship on the employer.
By Noah Lewis, Wyatt Summer Associate
In a recent decision, the Supreme Court of the United States unanimously held that the Title VII charge-filing requirement is not a jurisdictional prerequisite, but a procedural prerequisite. In the June 3, 2019 decision, in the case of Fort Bend Cty., Texas v. Davis, 2019 WL 2331306 (2019), the Supreme Court addressed whether Title VII’s charge-filing precondition to suit is a jurisdictional requirement that can be raised at any stage of the proceeding, or if the precondition is a procedural prescription that is mandatory if timely raised but “subject to forfeiture if tardily asserted.” Davis, 2019 WL at 2. The Court held that the charge-filing precondition is “properly ranked among the array of claim-processing rules that must be timely raised to come into play.” Id.
With few exceptions, employers with 100 or more employees and certain government contractors are required to submit a workplace profile, broken down by race, sex, ethnicity, and job category, to the Equal Employment Opportunity Commission (“EEOC”) by May 31, 2019. This year, covered employers must also comply with a second deadline. By September 30, 2019, EEO-1 filers must report W-2 wages and hours worked within 12 specific pay bands by race, gender and ethnicity to the EEOC.
By Sharon Gold
The Kentucky Pregnant Workers Act (“the Act”), adopted in April, amends the Kentucky Civil Rights Act (“KCRA”), and expands protections for pregnant workers in Kentucky. The Act applies to employers who have 15 or more employees within the state in each of twenty or more calendar weeks in the current or preceding calendar year and any agent of the employer. It requires employers to provide reasonable accommodations, including but not limited to the need to express breast milk, to employees with limitations related to pregnancy, childbirth, or a related medical condition, unless it would pose an undue hardship on the employer. A “related medical condition” includes, but is not limited to, lactation or the need to express breast milk for a nursing child. The Act provides the following examples of reasonable accommodations:
On April 29, 2019, the Department of Labor issued an opinion letter pertaining to individuals providing services in the “unidentified virtual marketplace,” and placed a thumb on the scale in favor of their status as independent contractors, rather than employees. The “unidentified virtual marketplace,” also known as the “gig economy,” is commonly understood to be online or smartphone-based referral sources that connects providers directly to consumers for a vast array of services. The opinion letter—which is itself intended merely as guidance and not “binding” authority—concluded that providers accessing such an online referral source are more properly considered “independent contractors” of the online platform.
By Jordan White
On April 22, 2019, the Supreme Court granted certiorari and consolidated three cases involving whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), prohibits employment discrimination based on an individual’s sexual orientation and transgender status. The three cases are: Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Bostock v. Clayton County Board of Commissioners, 723 F. App’x 964 (11th Cir. 2018); and Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). In Zarda and R.G. & G.R., the Second and Sixth Circuits agreed that Title VII bars employment discrimination based on sexual orientation and transgender status, respectively, with the Eleventh Circuit holding otherwise in Bostock. Zarda may be the most interesting case of the three. There, the Second Circuit reversed itself in an en banc decision, and it exposed a public divide between the EEOC and the Department of Justice. Both federal agencies filed briefs in the case, with the EEOC arguing that Title VII does apply while the Department of Justice argued the contrary.