On March 3, 2022, President Joe Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” commonly referred to as the “Me Too” law. The act, which amends the Federal Arbitration Act and becomes effective immediately, prevents employers from utilizing employment agreements that require mandatory arbitration of workplace sexual assault and harassment claims — enabling victims of the same to pursue relief through the courts if they so desire. 

• First, employers may no longer require the arbitration of claims of sexual harassment or sexual assault brought under federal or state law.
   
• Second, employees are prohibited from waiving their right to bring claims of sexual assault or sexual harassment via a class action.
   
• Third, the act applies to claims of both sexual harassment and sexual assault, and is not limited to employment      Continue Reading...

On August 21, 2020, the Kansas Human Rights Commission (“KHRC”) decided to begin accepting complaints of “sex” discrimination in employment, housing, and public accommodations based on an individual’s LGBTQ status under the Kansas Act Against Discrimination (“KAAD”). This decision follows the U.S. Supreme Court’s ruling in Bostock v. Clayton County, where the Supreme Court held that Title VII protects individuals from employment discrimination on the basis of their sexual orientation and gender identity.

Notably, the KHRC’s decision expands on Bostock in two important ways. First, the KAAD applies to Kansas employers with four or more employees, whereas Title VII only covers businesses with 15 or more employees. Second, the KHRC’s decision expands protections to individuals alleging discrimination in housing and public accommodations. In an e-mail to interested parties, the KHRC’s Executive Director indicated that formal guidance will be forthcoming.

Kansas employers should contact counsel to determine the impact the KHRC’s decision will have on their business. And, if they haven’t already, Kansas employers should review their anti-discrimination and harassment policies to ensure that sexual orientation and gender identity are included as protected categories.

The U.S. Department of Labor (“DOL”) recently published seven new Family and Medical Leave Act (“FMLA”) forms. These optional-use forms can be used by employers to provide required notices to employees, and by employees to provide appropriate certification of their need for leave. However, employers are still free to use their own forms, so long as they provide the same basic notice information and require only the same basic certification information.

The new forms are:

1. WH-380-E – Employee’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee.
2. WH-380-F – Family Member’s Serious Health Condition – for use when a leave request is due to the medical condition of the employee’s family member.
3. WH-381 – Rights and Responsibilities Notice – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
4. WH-382 – Designation Notice – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement.
5. WH-384 – Qualifying Exigency – for use when the leave request arises out of the foreign deployment of the employee’s spouse, son, daughter, or parent.
6. WH-385 – Military Caregiver Leave of a Current Servicemember – for use when requesting leave to care for      Continue Reading...

As a part of the 2019 HR Training Series, Foulston recently provided a session on employee handbook basics to a group of HR professionals. Here’s a recap of some of the highlights.

Employee handbooks should be updated yearly. It is also important to have employees sign an acknowledgement of receipt after each update. This is because the acknowledgement the employee signed when he or she first started likely applied to a handbook that looked different than the current version.  

• At-will employment disclaimer
• Anti-harassment/productive work environment
• Equal employment opportunity (EEO)
• Family and Medical Leave Act (if you have 50 or more employees)
• Wage deductions
• Smoke-free workplace

As she promised she would do, newly elected Kansas Governor Laura Kelly restored protections from on-the-job discrimination for lesbian, gay, bisexual, and transgender state employees via Executive Order No. 19-02 on her first full day in office January 15, 2019. Former Governor Kathleen Sebelius had issued a similar executive order in 2007, which was later rescinded by former Governor Sam Brownback in 2015. The Order protects state employees from discrimination, harassment, and retaliation based on their sexual orientation, gender identity, and gender expression, among other protected classifications. The Order also expands the policy to require state government contractors to comply with the order in their employment practices.

Advocates of LGBT rights view the Order as a major victory for LGBT state employees and a stepping stone towards extending these protections to the entire private sector. Kansas’s first openly lesbian and gay legislators, Representatives Susan Ruiz and Brandon Woodward, have announced that they planned to introduce a bill that would expand Kansas’ anti-discrimination law to provide similar protections for employees of private businesses. The likelihood of such a bill passing is unclear, but a growing number of Kansas employers are voluntarily adding sexual orientation and gender identity as protected categories under their Equal Employment Opportunity & Harassment policies in anticipation of a potential future change in the law. Stay tuned for further updates on this potential litigation as well as other developments in the 2019 legislative season. 

The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.

Employers ended the October 2017 Supreme Court term with a clean sweep. In three 5-4 decisions split down perceived party lines and one unanimous opinion, the Court sided with employers’ interests in each significant labor and employment case. Perhaps most consequentially, at the conclusion of the term, Justice Kennedy retired from the bench, affording President Trump the opportunity to appoint another conservative justice who will likely be a reliable pro-employer vote for decades to come. 

Recently, the Kansas Court of Appeals affirmed the district court and the Kansas Department of Labor’s (KDOL) finding that nail technicians at a salon were employees rather than independent contractors for unemployment-tax contribution purposes. This case has important tips for handling classification issues in any industry.

For Kansas employers with over 100 employees, this move means that you will not have to provide this data to the EEOC starting in 2018, as the rule had not gone into effect before its suspension.