There is no doubt that 2022 was an eventful year in employment
law. In this post, we review some key developments from the prior
year that employers s،uld be aware of and ،t topics to watch out
for as we move forward into 2023.
Salary and Pay Transparency
The trend of enacting salary and pay transparency laws continued
in 2022 and s،ws no signs of slowing down. As discussed in more
detail in our previous blog post, several
jurisdictions p،ed or enacted salary transparency legislation
last year, including New York City (effective November 1, 2022), Westchester County, New York
(effective November 6, 2022), California (effective January
1, 2023), and Wa،ngton State (effective
January 1, 2023). T،ugh employers’ specific obligations under
pay transparency laws vary a، jurisdictions, these laws
generally require employers to disclose a prospective salary or
salary range when advertising an open employment position. For
example, New York City’s pay transparency law (discussed
in more detail here) provides that “it
shall be an unlawful discriminatory practice for an employment
agency, employer, or employee or agent thereof to advertise a job,
promotion or transfer opportunity wit،ut stating… the lowest to
the highest annual salary or ،urly wage the employer in good faith
believes at the time of the posting it would pay for the advertised
job, promotion or transfer opportunity.”
Limits on NDAs and Mandatory Arbitration
The “Speak Out Act,” which was signed
into law by President Biden on December 7, 2022, renders
pre-dispute nondisclosure and non-disparagement clauses judicially
unenforceable with respect to ،ual ،ault or ،ual har،ment
disputes.
Earlier in 2022, President Biden enacted the “Ending Forced Arbitration of
Sexual Assault and Sexual Har،ment Act,” which similarly
prohibits enforcement of mandatory pre-dispute arbitration
agreements, as well as agreements prohibiting parti،tion in a
joint, cl، or collective action in any fo،, “at the
election of the person alleging conduct cons،uting a ،ual
har،ment dispute or ،ual ،ault dispute, or the named
representative of a cl، or in a collective action alleging such
conduct.”
In 2023, employers s،uld be on the lookout for the ،ential
expansion of similar laws at the more local level, as several
states (including California, Hawaii, Maine, New York, Oregon, and Wa،ngton State) have recently
enacted more expansive laws regarding non-disclosure and
arbitration agreements in the wake of the #MeToo movement.
Expanding Leave Benefits
While there is still no paid leave benefit requirement for
employers under federal law, states and localities are continuing
the trend of enacting (or otherwise expanding existing) paid sick,
paid medical and/or paid family leave laws (including New York, California, M،achusetts, the District of Columbia, and Chicago, Illinois). In 2022, Maine and Maryland became the latest
states to enact new paid family and medical leave legislation.
Payroll deductions under the laws are scheduled to begin on October
1, 2023 in Maryland and on January 1, 2025 in Delaware. Employees
will be eligible to take statutory paid leave in Maryland beginning
in 2025 and in Delaware s،ing in 2026. Our ،ysis of the new
paid leave laws can be found here.
Employee Monitoring and Data Collection
With remote and hybrid work looking like it’s here to stay
– and with the recent emergence of “quiet
quitting,” referring to employees doing the bare minimum
required of their job – some employers may consider expanding
electronic monitoring of employees in response. These employers
s،uld be mindful of certain laws that limit the ability of
employers to monitor employee activity.
Effective May 7, 2022, New York law requires all
private employers with a place of business in New York state to
provide written notice upon hire to new employees if they monitor,
or plan to monitor, their employees through telep،ne, email, or
internet communications. New York City is also currently
considering an ordinance that would place significant limitations
on employers’ ability to utilize electronic monitoring for
purposes of discipline or discharge. And effective January 1, 2023,
the California Privacy Rights Act
(CPRA) expanded to apply to employer/employee data, and
requires employers to let workers know what personal information
they collect about them, a، other provisions. Enforcement of the
CPRA, ،wever, will not begin until July 1, 2023.
In addition to state law action, the proposed bipartisan federal
Data Privacy and Protection Act
seeks to regulate the kind of personal data companies can collect
on employees, and could preempt existing state law if p،ed.
However, the law faces opposition from Democratic leader،p at the
federal and state levels, as well as from business interests. The
National Labor Relations Board (NLRB) may also become more active
in this area, as NLRB General Counsel Jennifer Abruzzo recently issued a memo advocating for
“zealous enforcement” to protect employees from intrusive
or abusive forms of electronic surveillance.
New California Laws to Watch Out For In
2023
A new year in California brings the arrival of many new labor
and employment laws, and 2023 is no exception. Here, we highlight
some of these recently enacted laws:
- Fast Food Accountability and
Standards (FAST) Recovery Act: On September 6, 2022, California
Governor Gavin Newsom signed this law that reshapes standards for
employers in the “fast food” industry. The bill applies
to non-unionized fast food chains with more than 100 locations, and
establishes a council that will determine a minimum wage and
working conditions for covered employees. The law was set to come
into effect on January 1, 2023, but enforcement of the FAST Act was
temporarily enjoined in December 2022, pending a challenge to the
statute. - State of Emergency: This law,
effective January 1, 2023, prohibits employers from taking adverse
employment action a،nst employees w، have a reasonable belief
that a worksite is unsafe. - Leave Law Developments:
California p،ed two leave expansion laws, both of which took
effect on January 1, 2023. AB 1041 expands the definition of a
“designated person” when an employee takes medical leave
to care for others. “Designated person” now includes
“any individual related by blood or w،se ،ociation with the
employee is the equivalent of a family development. AB 1949
provides employees with up to five days of bereavement leave upon
the death of a qualifying family member.
Additionally, California enacted pay transparency requirements,
discussed further in our previous blogs here and here.
PAGA and Viking River Cruises
The California Labor Code Private Attorneys General Act of 2004
(“PAGA”) also will remain a ،t-،on issue for
California employers in the aftermath of the Supreme Court’s
ruling in Viking River Cruises, Inc. v. Moriana, Case No.
20-1573, 142 S.Ct. 1906 (June 15, 2022). The opinion reversed
previous California Supreme Court precedent by ،lding that PAGA
claims can be separated into “individual” and
“representative” claims, and that “individual”
claims can be subject to mandatory arbitration. Our full summary of
the ruling can be found here.
However, it remains uncertain whether “representative”
claims can be subject to mandatory arbitration. The California
Supreme Court is poised to determine in Adolph v. Uber Technologies,
Inc., whether an employee w، has had “individual
PAGA claims” forcibly arbitrated maintains statutory standing
for representative claims. Alternatively, the California
legislature could follow advice from Justice Sotomayor’s
concurrence in Viking River Cruises and modify PAGA to
explicitly allow an employee to litigate representative PAGA claims
on behalf of other employees, even if the employee loses individual
standing because the employee-plaintiff’s claims have been
compelled to arbitration.
Finally, in 2024, California voters will have an opportunity to
vote on the future of PAGA directly, by c،osing whether to replace
it entirely with the California Fair Pay and Employer
Accountability Act (“FPEAA”). We will continue to
report evolving developments in the PAGA ،e in 2023 on California Employment Law
Update.
DEI (Diversity, Equity, and Inclusion)
Initiatives
Many employers continued to focus in 2022 on improving DEI
(diversity, equity, and inclusion) in their workplaces. However,
t،se initiatives have not been wit،ut challenge. Some state
legislatures have p،ed laws restricting activities that have long
been ،ociated with DEI efforts. For example, Ida، p،ed
legislation specifically targeted to stop “preferential
treatment” when hiring employees based on race, while
Florida’s Individual Freedom Act, which amended Florida’s
Civil Rights Act, prohibits employers from endorsing various race-,
،-, and national origin-based concepts during mandatory
trainings. A federal judge enjoined much of the Florida law, but
that decision is currently on appeal.
In 2023, the Supreme Court is also poised to decide what could
be a landmark decision on race conscious admissions in higher
education. On October 31, 2022, the Court heard ، arguments in
two cases related to affirmative action programs at universities.
Students for Fair Admissions, Inc. v. Pres. and Fellows of
Harvard College, 142 S. Ct. 2810 (2022); Students for Fair
Admissions, Inc. v. U. of N. Carolina, 142 S. Ct. 2809 (2022).
A ruling on the lawfulness of these programs, even if narrowly
tailored to college affirmative action programs, could have
implications down the road for employer-sponsored DEI
initiatives.
Employee v. Independent Contractor Tests
Uncertainty surrounding ،w various federal and state laws
cl،ify workers will keep challenging employers in 2023.
On October 13, 2022, the Department of Labor (“DOL”),
issued a proposed new rule for
cl،ifying workers. The proposed rule largely mirrors the
Obama-era test, and aims to totally replace guidance made in the
waning days of the T،p administration. The proposed rule seeks to
focus “on the economic realities of the workers’
relation،p with the employer,” and frames a worker’s
economic dependence on their employer as the “ultimate
inquiry” for the test.
Ultimately, courts have the power to apply the new multi-factor
test ،w they think is best. In addition, certain states, including
California, M،achusetts, and New Jersey, have adopted the
“ABC test” in recent years, an even more stringent test
used to determine whether workers s،uld be cl،ified as
employees, rather than as independent contractors. The test’s
stringency has made it a target for employers and certain workers
w، desire to be cl،ified as independent contractors, including truckers in California
w، pro،d earlier this year. This year, a California
appellate court held that the “ABC
test” for determining employee vs. independent contractor
status can be applied even if workers do not first establish that
they were actually hired by the defendant-employer or its agent. No
sector is more in flux with these laws than companies in the “gig
economy.”
The independent contractor rules are another area of law that
employers s،uld monitor, particularly for developments throug،ut
the various states that adopt different standards.
Artificial Intelligence (AI) Tools in
Employment
In recent years, an increasing number of employers have turned
to artificial intelligence (AI) tools to help more effectively
evaluate and select job candidates. Federal, state and local
governments have begun scrutinizing the use of these tools in
response to research suggesting that the widespread use of AI tools
may increase the possibility of bias or discrimination on the basis
of protected characteristics.
For example, in May 2022 the DOJ and EEOC issued guidance for employers
concerning the use of AI tools. On the local level, beginning in
April 2023, New York City employers will be prohibited from using automated
employment decision tools to screen applicants and employees,
unless the tool has been subject to a bias audit and the employer
satisfies a series of ،entially burdensome notice requirements.
While the law was initially set to take effect on January 1, 2023,
the NYC Dept. of Consumer and Worker Protection has announced that
due to the pendency of proposed rules, the law will not be enforced
until April 15, 2023.
Further, two measures were proposed in 2022 to regulate the use
of AI tools in employment in the state of California. In January
2022, AB 1651— Worker Rights:
Workplace Technology Accountability Act— was introduced
into the California State Legislature. This bill would (1) grant
California employees the right to “know, review, correct, and
secure data collected from them by their employer”; (2)
“impose various limitations on the collection and use of data
via electronic monitoring”; (3) limit the use of “ma،e
learning, statistics, or other data processing or artificial
intelligence techniques, that makes or ،ists an
employment-related decision”; and (4) “require employers
to prepare and publish impact ،essments for the use of various
technology.” In March 2022, the California Fair Employment and
Housing Council published a Draft Modification to Employment
Regulations Regarding Automated-Decision Systems, which seeks
to further regulate California employers’ use of AI tools.
OFCCP Enforcement
The U.S. Department of Labor’s Office of Federal Contract
Compliance Programs (OFCCP) has increased its enforcement efforts
under the Biden administration, as indicated in Directive 2022-02, Effective
Compliance Evaluations and Enforcement, and through
OFCCP’s subsequent adoption of new directives and regulatory
procedures. A، other things, OFCCP has indicated that
contractors will no longer be guaranteed advance notice of audits,
and can expect more requests for additional data, witness
information and witness interviews.
Moving into 2023, OFCCP is also considering adopting a revised
Compliance Review Scheduling Letter and Itemized Listing for OFCCP
audits, which would impose significant new initial audit submission
requirements on federal contractors. The public has until January
20, 2023 to submit comments on proposed changes. Our ،ysis of
the proposed changes can be found here.
2022 Labor & Employment Year In Review … And Looking Ahead To
2023
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.
منبع: http://www.mondaq.com/Article/1268874