On the evening of September 25, 2008, federal regulators seized Washington Mutual (“WaMu”) in what was, and still is, the largest bank failure in United States history. The government immediately sold virtually all of WaMu to J.P. Morgan Chase (“Chase”), at which point Chase took control of all of WaMu’s branches and deposits, and became the employer of WaMu’s more than 43,000 workers.

In the ensuing months, WaMu’s headquarters, which were in Washington, were shuttered and its operations were moved to Chase’s New York headquarters and other locations throughout the country. Many WaMu branches were closed rather than rebranded as Chase locations. While some employees initially stayed on with Chase, thousands were laid off. Others were offered bonuses to remain with Chase temporarily for a transition period.

Continue Reading What’s Next for Employees of Failed Banks?

The Pregnant Workers Fairness Act (“PWFA”) will take effect on June 27, 2023. The law seeks to close long-standing gaps in the protections afforded to pregnant workers under other federal laws. The rights created by the statute are especially important for employees who live in jurisdictions without state or local laws requiring employers to make reasonable accommodations for pregnant persons.

Although New York employers have been required to provide reasonable accommodations for “pregnancy-related conditions” under state law since 2015, it is nonetheless important for New York businesses to understand that employees will soon have a federal right of action for violations of the PWFA. 

Pre-PWFA Federal Laws Concerning Pregnancy Discrimination

In 1978, Congress passed the Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964 (“PDA”). The law made it illegal for employers to make employment decisions based on an employee’s past or current pregnancy, potential pregnancy, or medical condition relating to pregnancy. Though groundbreaking at the time, the PDA stopped short of requiring employers to make reasonable accommodations for pregnant workers to enable them to do their jobs.

In the years since, the PDA has been interpreted as requiring employers to treat workers affected by pregnancy, childbirth or related medical conditions the same as other workers who are similar in their ability or inability to work. See Young v. U.S. Parcel Service, 575 U.S. 206 (2015). Thus, to the extent that an employer makes accommodations for other employees with a similar ability to work (or not), it must treat pregnant workers in kind. This provided pregnant workers with a narrow path for seeking accommodations.

That path grew slightly wider with the enactment of the Americans with Disabilities Act (“ADA”) in 1990. The ADA requires an employer to provide a reasonable accommodation for an employee with a disability if doing so would not cause an undue hardship. While pregnancy is not a disability under the ADA, some conditions related to pregnancy may be, such as gestational diabetes or preeclampsia.


The PWFA will require covered employers (i.e., private and public sector employers with at least 15 employees, Congress, federal agencies, employment agencies, and labor organizations) to provide reasonable accommodations to employees who have known limitations related to pregnancy, childbirth or related medical conditions to enable them to perform their jobs, provided such accommodations do not cause the employer undue hardship. The employee’s limitations need not rise to the level of a disability, as is the case under the ADA, and an employee need not show that the employer provides accommodations to similarly situated employees, as is the case under the PDA.

According to the Equal Employment Opportunity Commission (“EEOC”), the House Committee on Education and Labor Report on the PWFA provides several examples of possible reasonable accommodations including the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. The EEOC is expected to issue regulations addressing matters such as possible the types of accommodations employers should consider providing.

The PWFA also makes it unlawful for covered employers to force an accommodation on an employee without engaging in the interactive process, deny job opportunities to an employee based on their need for an accommodation, require an employee to take leave when a different accommodation would allow them to continue working, or retaliate against an employee who opposes violations of the PWFA.

Does the PWFA Change Things for New Yorkers?

In 2015, the New York State Human Rights Law (“NYSHRL”) was amended to require employers to make reasonable accommodations for employers with “pregnancy-related conditions,” which include all needs and restrictions related to an employee’s pregnancy. These conditions need not rise to the level of a disability and can be as simple as an employee’s increased need for water or extra bathroom breaks.

Nonetheless, New York employers should be aware that the manner in which pregnant employees may assert their rights will change with the enactment of the PWFA. Employees’ only avenue for redress under the NYSHRL is to bring claims in state court or to file a charge with the New York State Division of Human Rights. Previously, review of a NYSHRL claim by the EEOC or a federal court was available only if the employee had other viable federal claims or if the employer and employee were residents of different states. Now, charges of discrimination under the PWFA can be filed with the EEOC and, if not resolved, can be asserted in a federal lawsuit.

Employers should also consider updating their reasonable accommodation policies to specifically reference pregnant workers and their rights under the PWFA, and should ensure that managers and supervisors are aware of their obligations under the law.

If you have questions about pregnancy discrimination or reasonable accommodations for pregnant workers, please contact Jessica M. Baquet at (516) 663-6506 or jbaquet@rmfpc.com.

As discussed in our previous blog, New York recently enacted a Compensation Transparency Law (CTL) that is set to take effect on September 17, 2023. Generally speaking, the law will require employers to disclose salary ranges in advertisements for job, promotion and transfer opportunities.

On March 3, 2023, Governor Kathy Hochul signed off on a series of amendments to the CTL, which are summarized below.

Continue Reading New York Amends Compensation Transparency Law in Advance of Effective Date

It is not uncommon for employers to offer departing employees a severance package in exchange for their signature on a separation agreement. The employer’s primary goal in doing so is often to secure a release of all claims the departing employee may have. But some employers want to impose other obligations on departing employees, like commitments to refrain from disparaging the employer or disclosing information about the employer/the agreement itself. Their ability to do so was recently limited by the decision of the National Labor Relations Board (NLRB) in McClaren McComb.

Continue Reading NLRB Restricts Inclusion of Non-Disclosure and Non-Disparagement Provisions in Severance Agreements

New York City employers who use Artificial Intelligence (“AI”) tools in hiring employees will soon be subject to new regulations aimed at curbing discrimination. Local Law 144, which goes into effect on April 15, 2023, will require City employers to test their AI recruitment tools for bias and post the results publicly.

Continue Reading New York City Employers: How Biased Is Your HR Software?

Many employment contracts contain non-competition clauses. There has long been a body of case law limiting the enforceability of these restrictive covenants in New York. For example, under the so-called BDO Seidman test, a non-compete provision is only enforceable if it is no greater than required to protect the legitimate business interests of the employer, does not impose undue hardship on the employee, and is not injurious to the public. See generally BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999).

The BDO Seidman test and other judicially created rules governing non-competition clauses may soon fall by the wayside. On January 5, 2023, the Federal Trade Commission (FTC) issued a proposed rule (PR) that would largely ban non-competition provisions throughout the United States. The PR follows an executive order issued by President Biden on July 9, 2021, which urged the FTC to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

Continue Reading What Employers Should Know About the FTC’s Proposed Ban on Non-Competition Clauses

The New York Department of Labor has issued a new model sexual harassment policy for all employers in New York State. The new model, which was drafted in consultation with the New York State Division of Human Rights (DHR), expands on the topics of sexual harassment as it pertains to gender identity, bystander intervention, and remote workers. The policy will become final after a 30-day comment period, at which point New York employers will need to familiarize themselves with the changes and incorporate them into workplace practices.

Continue Reading New York State Department of Labor Issues New Model Sexual Harassment Policy

On December 21, 2022, New York joined several other jurisdictions, including New York City, in enacting a compensation transparency law. All New York employers with four or more employees must begin complying with the law starting on September 17, 2023.

Continue Reading New York State Enacts Compensation Transparency Law

As we move towards year-end, now is an opportune time for businesses to review their policies to ensure compliance with recent changes in state employment laws and guidance. This Employment Alert provides a brief overview of the recent and pending changes to the laws and regulations applicable to New York employers.

Continue Reading Employment Law Update – October 2022

As the COVID-19 pandemic shifts into a new phase, the rules and regulations surrounding the virus and the workplace continue to evolve. This Employment Alert provides a brief overview of the recent changes to the rules and regulations applicable to New York employers.

Continue Reading COVID-19 Update