BOP NEWSLETTER • July 2023

The U.S. Supreme Court Changes Religious Accommodation Standard

In Groff v. DeJoy, No. 22-174 (June 29, 2023), the Supreme Court has changed the standard upon which an employer can claim “undue hardship” when requests for  religious accommodations are made by applicants and employees.

For 46 years, the “undue hardship” standard has been based on the previous court’s decision in TWA v. Hardison, 432 U.S. 63 (1977). Under this ruling, “undue hardship” could occur when a religious accommodation request required an employer “to bear more than a de minimis cost.” Under the new standard, “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.” This is a significant change.

While the Court declined to provide more guidance on this new “undue hardship” test, they did state the following: “A good deal of the EEOC’s [Equal Employment Opportunity Commission] guidance in this area is sensible and will, in all likelihood, be unaffected by the Court’s clarifying decision.” According to the Court, “Courts must apply the test to take into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer.”

Virginia: Use of Employees’ Social Security Numbers as Identifiers Prohibited

Senate Bill 1040, which took effect on July 1, 2023, prohibits an employer from using an employee’s social security number or any derivative as an employee’s identification number. This includes an employee’s social security number or any number derived from the social security number on any identification card or badge. An employer who knowingly violates the new law may be subject to a civil penalty not to exceed $100 for each violation.

Idaho: New Covid-19 Vaccination Law

Under the new “Coronavirus Stop Act” employers doing business in the state of Idaho may no longer require a coronavirus vaccination as a term of employment unless required by federal law or where the terms of employment include travel to foreign jurisdictions requiring vaccination.

Employers are also prohibited from offering different salary, hourly wage, or other ongoing compensation or benefits to an employee based on whether the employee has received a coronavirus vaccination.

One-time incentives and time off to be vaccinated may be allowed with some restrictions.

Employers in Idaho with mandatory vaccination policies should seek professional guidance to determine the appropriate next steps.

New Jersey: Unemployment Compensation Law Changes

The new law, which will take effect on July 31, 2023, makes several substantial changes to New Jersey’s Unemployment Compensation Law (UCL), three of which are of particular importance to employers:

• The NJ Department of Labor (NJDOL) will provide employers with a new form containing “directions” that enumerate what specific information, “sufficient to enable the NJDOL to make a benefit determination,” an employer must provide to the NJDOL “immediately and simultaneously … by electronic means” when it separates an employee.
• Employers will also be required to “immediately and simultaneously” send to the NJDOL a copy of the NJDOL’s form BC-10 that was given to the separated employee. This, too, may be done electronically.
• New penalties: an employer that “willfully fails or refuses to furnish any reports or information … including [separation information],” is liable for a $500 fine, or 25 percent of the “amount fraudulently withheld.” In addition, “each such false statement or representation or failure to disclose a material fact, and each day of such failure or refusal shall constitute a separate offense.”

Minnesota: Bans Non-Compete Agreements

Effective July 1, 2023, the new law will render void and unenforceable any non-compete agreement with an employee or independent contractor, unless the non-compete agreement was (1) agreed to by partners, members, or shareholders selling or dissolving a business and (2) restricts them from carrying on a similar business (3) within a reasonable geographic area and for a reasonable length of time.

The new law applies to contracts and agreements signed on or after July 1, 2023.

Texas and Arkansas: CROWN Act Laws Passed

CROWN is an acronym for “Creating a Respectful and Open World for Natural Hair.” These laws generally prohibit discrimination “because of or on the basis of an employee’s hair texture or protective hairstyle commonly or historically associated with race.”

• Texas law is effective September 1, 2023
• The Arkansas law is effective July 31, 2023

Washington: Searching Employee Vehicles is Restricted

Effective July 23, 2023, House Bill 1491 goes into effect. Under the new law, employers are no longer able to search an employee’s privately-owned vehicle, even if it is on their property and the employee waives their privacy right.

There are several exceptions to the law, including employer owned or leased vehicles, and where an employee consents to the search based on probable cause that an employee unlawfully possesses employer property or controlled substances in violation of both federal law and the employer’s written policy prohibiting drug use. In these circumstances, an employee needs to provide consent immediately prior to a search and can request a witness to be present.

Employers cannot require, as a condition of employment, that an employee waive these protections. Nor can an employer take any adverse action against an employee for exercising their rights under this statute.