Earlier this year, the New Jersey Division on Civil Rights (DCR) issued proposed regulations to allow employers to satisfy the state’s Law Against Discrimination (LAD) and Family Leave Act (NJFLA) poster requirements via an internet or intranet site rather than a conventional bulletin board in the workplace. The proposed regulations also imposed a new annual LAD and NJFLA notice distribution requirement. Those regulations became final on August 1, 2022.
On August 5, 2022, new Pennsylvania state wage-and-hour regulations for tipped and salaried nonexempt workers under the Pennsylvania Minimum Wage Act (PMWA) go into effect.
On July 26, 2022, Massachusetts Governor Charlie Baker signed into law “An Act Prohibiting Discrimination Based on Natural and Protective Hairstyles,” also known as the Massachusetts CROWN Act.
On September 15, 2022, the California Occupational Safety and Health Standards Board will continue the long and arduous journey to establish COVID-19 safety measures in the workplace. Since the California Division of Occupational Safety and Health’s (Cal/OSHA) initial ETS took effect in November 2020, the Standards Board has addressed the evolving workplace safety challenges with a series of updates.
Earlier today, the Michigan Court of Claims issued a stay of its July 19, 2022, decision in Mothering Justice v. Nessel that had reinstated ballot initiatives that would have drastically changed the state’s paid medical leave and minimum wage laws. The stay is in place until February 19, 2023. This means that the adopted and amended versions of these laws will remain in place for now.
In a decision that further clarifies Massachusetts law with regard to employee classification, the Massachusetts Appeals Court recently held that home inspectors working on behalf of an inspectional services company were independent contractors (and not employees) under the ABC test for determining employment status, and, therefore, ineligible for unemployment benefits.
The 2022 Louisiana legislative session included two bills focusing on workplace violence in the healthcare industry—Act No. 461 and Act No. 129—that Governor John Bel Edwards signed into law earlier this summer.
With the first six months of 2022 completed, this is a good time to review a busy government reporting season.
On July 19, 2022, New York Governor Kathy Hochul announced the launch of a statewide confidential hotline for complaints of workplace sexual harassment. The hotline was provided under Senate Bill No. S812B, which Governor Hochul signed into law on March 16, 2022, as part of a legislative package enacted to address sexual harassment in the workplace.
The 2022 regular session of the Louisiana Legislature was a busy one, although there were only two new notable employment laws.
There is a new, but not entirely unexpected, front in the continuing war over California Labor Code Private Attorneys General Act (PAGA) claims. On July 20, 2022, the California Supreme Court granted review in Adolph v. Uber Technologies, Inc., opening the door for a ruling that potentially may complicate the relief provided to employers by the recent decision from the Supreme Court of the United States in Viking River Cruises, Inc. v. Moriana.
Maine recently joined the list of states—including California, Illinois, New Jersey, New Mexico, New York, Oregon, Washington, and others—with laws restricting employers’ use of nondisclosure agreements (NDAs) and confidentiality terms in settlement, separation, and severance agreements.
On July 19, 2022, the Michigan Court of Claims reinstated Michigan’s original (2018) voter-initiated versions of the Improved Workforce Opportunity Wage Act (IWOWA) and the Earned Sick Time Act (ESTA). This reversion immediately increases Michigan’s minimum wage rate to $12 per hour and significantly expands the paid sick leave employers must provide to eligible employees.
On July 15, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that a female employee who crawled into a male coworker’s bed while “sleepwalking” and was subsequently discharged failed to establish disability discrimination under the Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act (TCHRA).
On April 21, 2022, the federal Occupational Safety and Health Administration (OSHA) issued a a proposed rule to revoke Arizona’s occupational safety and health (OSH) plan’s final approval under Section 18(e) of the Occupational Safety and Health Act of 1970. In its notice, OSHA proposed revoking its affirmative determination granting final approval to Arizona’s state OSH plan, which, if implemented, would return Arizona’s plan to “initial approval” status resulting in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH).
The COVID-19 pandemic did not slow down the pace of new California Private Attorneys General Act (PAGA) letters being filed with the state Labor Workforce Development Agency (LWDA), according to filing data. Instead, there was a significant increase in the filing of PAGA letters during the height of the COVID-19 pandemic in 2020 and 2021.
In a decision that may be useful to employers drafting severance and litigation settlement agreements in New Jersey, a panel of the New Jersey Appellate Division found that provisions requiring parties not to disparage one another may be included in settlement agreements in employment-related cases.
On July 1, 2022, Illinois Governor J.B. Pritzker signed into law Senate Bill (SB) 3616, also known as the CROWN Act. The CROWN (“Create a Respectful and Open Workplace for Natural Hair”) Act (Public Act 102-1102) amends the Illinois Human Rights Act (IHRA) to expand the definition of “race” for the purposes of combatting unlawful discrimination in Illinois.
On June 2, 2022, Minnesota Governor Tim Walz signed House File (H.F.) 4065 into law, a measure that provides clarity regarding hemp-derived consumables stemming from the Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill.
On June 30, 2022, the Supreme Court of California issued a decision in Grande v. Eisenhower Medical Center, No. S261247, that could have a far-reaching impact on the relationships between staffing companies and their clients.
On May 6, 2022, the State of California Office of Administrative Law (OAL) adopted the third revision of the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 emergency temporary standards (ETS), which is effective through December 31, 2022. On June 16, 2022, the Cal/OSHA Standards Board released its COVID-19 draft regulation, which is scheduled to take effect on January 1, 2023.
The Connecticut legislature has been busy in 2021 and 2022. Approximately twelve months ago, it passed legislation effectively legalizing recreational marijuana under Connecticut state law. Very recently, it amended Connecticut’s employee free speech statute to, among other things, prohibit employers from convening what organized labor often refers to as “captive audience meetings” with employees to address unionization efforts. Also, effective January 1, 2022, many employees became eligible for Connecticut Paid Family and Medical Leave benefits, and the legislature amended the Connecticut Family and Medical Leave Act (CTFMLA) to apply to almost all private sector Connecticut employers.
Many employers with business operations in Nevada are aware by now that Assembly Bill 456, enacted in June 2019, increases the minimum wage in increments of 75 cents annually on July 1 of each year through 2024.
On June 21, 2022, Louisiana Governor John Bel Edwards signed into law legislation prohibiting employment discrimination on the basis of hairstyles or textures historically associated with race.
In the first ruling from a federal appellate court examining COVID-19–related layoffs and the Worker Adjustment and Retraining Notification (WARN) Act, the Fifth Circuit Court of Appeals held in Easom v. US Well Services, Inc., No. 21-20202 (June 15, 2022), that a mass layoff resulting in part from the economic impact of COVID-19 did not qualify for the “natural disaster” exemption to the WARN Act’s sixty-day notice requirement for mass layoffs. The court also held that for an employer to rely on the exemption, the mass layoff (or plant closing) must be the “direct result” of the natural disaster. This is an important ruling for employers in Louisiana, Mississippi, and Texas.
Beginning on July 1, 2022, New Mexico’s Healthy Workplaces Act (HWA) requires private employers with even one employee working in New Mexico to provide paid sick leave (PSL) to eligible employees. The New Mexico Department of Workforce Solutions (DWS) recently published HWA guidance, in the form of answers to frequently asked questions (FAQs), and regulations to provide guidance and clarity on various issues as the effective date approaches, including the definition of “covered employees”; rules for accrual, use, and carryover of paid sick leave; frontloading; and employee documentation and employer notification requirements.
On June 20, 2022, the California Department of Public Health (CDPH) issued COVID-19 guidance, titled “Isolation and Quarantine Q&A,” that offers insight into the recent change to the definition of “close contact.” On June 8, 2022, the CDPH issued a revised order with new definitions of “close contact” and “infectious period.” Because the June 8 order was an “order of the CDPH,” these revised definitions were immediately incorporated into the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS) requirements for exclusion of close contacts, which in turn impacted employers’ obligations under the ETS.
Remote work has exploded since the COVID-19 pandemic began, with some employers hiring employees to work remotely anywhere in the United States. With the recent economic downturn, layoffs are beginning to occur, and for the first time a significant number of remote employees may be included in layoffs. Layoffs of remote employees present unique legal hazards for employers.
On June 15, 2022, the United States Court of Appeals for the Eleventh Circuit issued a decision limiting the reach of the emergency response provisions of 29 C.F.R. § 1910.120, the Occupational Safety and Health Administration’s (OSHA) Hazardous Waste Operations and Emergency Response Standard—the so-called “HazWoper” (or “HAZWOPER”) standard.
On June 13, 2022, Seattle Mayor Bruce Harrell signed into law CB 120294, a measure intended to ensure app-based delivery drivers are paid a minimum wage plus tips and compensation for expenses, increase transparency related to offers for work, and preserve worker flexibility. The App-Based Worker Minimum Payment Ordinance is part of a collection of six legislative proposals known as “PayUp,” and it is the first in the policy package to pass.