Governor Newsom Signs COVID-19 Sick Pay, Small Business Relief Bill

California is extending COVID-19 supplemental paid sick leave (SPSL) through the end of 2022 under a bill signed into law by Governor Gavin Newsom on September 29, 2022. Assembly Bill (AB) 152 will also set up a program to provide grants of up to $50,000 to qualified small businesses to cover costs incurred for COVID-19 SPSL.

Governor Newsom Signs Bill Imposing Game-Changing Pay Transparency Requirements

On September 27, 2022, California Governor Gavin Newsom signed the state’s pay transparency bill into law, imposing several new and unprecedented requirements on California employers. With the signing of Senate Bill (SB) 1162, effective January 1, 2023, California will join Colorado, Washington, New York City, and other municipalities, in requiring that employers disclose pay ranges in job postings. California will break new ground in also requiring reporting on other demographic and pay information to the state.

New York City’s Automated Employment Decision Tools Law: Proposed Rules Are Finally Here

On September 23, 2022, the New York City Department of Consumer and Worker Protection published proposed rules to implement the city’s automated employment decision tools (AEDT) law. The law, which will take effect on January 1, 2023, conditions the use of automated employment decision tools by employers and employment agencies on their compliance with certain requirements, including the performance of bias audits and the furnishing of notifications to candidates and employees. The proposed rules define several key terms, identify the requirements for a bias audit, address obligations for publishing the results of a bias audit, and specify the notices to be furnished to employees and candidates for employment.

New York City to Convene Hearing on Proposed Rules for Automated Decision Tools Legislation

As we previously reported, restrictions concerning the use of automated tools to screen candidates for employment or employees for promotion within New York City are scheduled to take effect on January 1, 2023. The New York City Department of Consumer and Worker Protection will hold a public hearing concerning proposed rules to implement the closely watched law on Monday, October 24, 2022.

Eleventh Circuit Serves a Whopper of a Ruling on Franchisor’s ‘No-Poach’/‘No-Hire’ Agreement With Franchisees

Over the last several years, business-to-business “no-hire” and “no-poach” agreements have come under legal attack, including through enforcement actions by the Federal Trade Commission and criminal prosecutions by the U.S. Department of Justice. Even President Biden jumped into the fray on July 9, 2021, when he issued his “Executive Order on Promoting Competition in the American Economy.”

NYC Private-Sector Vaccine Mandate Becomes Optional Beginning November 1, 2022

On September 20, 2022, New York City Mayor Eric Adams announced that New York City’s private-sector vaccine mandate would become optional for businesses, beginning on November 1, 2022. The first-in-the-nation COVID-19 vaccination mandate for private-sector workers enacted by former mayor Bill de Blasio took effect on December 27, 2021.

Fourth Circuit Reinstates Employee’s Claim That Social Media App Messages Provided Sufficient Notice of a Medical Absence

On August 15, 2022, the U.S. Court of Appeals for the Fourth Circuit held in Roberts v. Gestamp West Virginia, LLC, that an employer’s “usual and customary” notice procedures relating to absences extended beyond the company’s written policies and potentially included social media messages between an employee and manager.

New Jersey Cannabis Regulatory Commission Releases Interim Drug Testing Guidance

On September 9, 2022, the New Jersey Cannabis Regulatory Commission (NJ-CRC) issued long-awaited interim guidance to employers regarding the use of a Workplace Impairment Recognition Expert (WIRE) to “detect[] and identify[] an employee’s usage of, or impairment from, a cannabis item or other intoxicating substance.” In addition, the NJ-CRC also released a template “Reasonable Suspicion Observed Behavior Report” form that employers may, but are not required to, use in connection with workplace drug testing.

Examining Joint-Employer Liability for Texas Workers’ Compensation Retaliation Claims

The question of who provides workers’ compensation insurance in employer–staffing company relationships is handled in different ways. Frequently, the staffing company will provide workers’ compensation coverage for all individuals provided to the client company. Issues sometimes arise related to the client company’s and staffing company’s liability under a joint-employer theory for adverse employment actions involving workers provided by the staffing company to the employer. A Texas appellate court recently examined the scope of joint-employer liability in the workers’ compensation retaliation context.

California Governor Marks Labor Day 2022 by Signing FAST Recovery Act Into Law

On September 5, 2022, California Governor Gavin Newsom marked Labor Day 2022 by signing Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), into law. The new law creates the Fast Food Council within the California Department of Industrial Relations, which is tasked with setting minimum standards for fast-food industry workers related to wages, health and safety conditions, security in the workplace, the time off from work for protected purposes, and protections from discrimination and harassment.

California Passes Bill Protecting Employees’ Off-Duty Marijuana Use

California employers may soon be barred from discharging employees or refusing to hire individuals based on their off-duty use of marijuana, under a new bill headed to the governor’s desk. On August 30, 2022, the California legislature passed Assembly Bill (AB) 2188, which would prohibit employers from discriminating against “a person in hiring, termination, or any term or condition of employment” based on “the person’s use of cannabis off the job and away from the workplace.”

California Legislature Passes Bill That Would Break New Ground on Pay Transparency Requirements

California’s legislature has passed a game-changing bill that would impose significant new requirements on employers in that state. The bill, which seeks to up the ante on pay transparency, is now headed to Governor Gavin Newsom who has until September 30, 2022, to sign it, veto it, or allow it to pass into law.

California Bill Aimed at Providing Increased Rights to Fast-Food Workers Sent to Governor for Signature

On August 29, 2022, the California Legislature passed a heavily amended version of Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), which would provide increased rights to California’s more than 500,000 fast-food workers. The bill is now headed to Governor Gavin Newsom’s desk.

Considerations for Louisiana Employers Post-Dobbs: Employment Discrimination Concerns and Leave of Absence Issues

On June 24, 2022, the Supreme Court of the United States issued a decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, holding that the U.S. Constitution does not protect a right to an abortion, and returning the authority to regulate abortion to individual states. Louisiana was one of thirteen states that had “trigger laws” that went into effect immediately or by quick state action when Roe was overturned and that either completely banned or severely limited abortions.

Employee Arrests Outside of Work Hours: 4 Key Questions and Answers for Employers

When employees are arrested during their off-duty time and away from work, employers may need to make difficult choices balancing their various obligations. Among these are respecting the rights of arrested employees, ensuring the safety of workforces and workplaces, maintaining the continuity of business operations, and preserving brand integrity and corporate reputation—as well as considering how state and federal laws might relate to the conduct at issue and to any decision to retain, suspend, or discharge arrested employees. As with most things, process and risk assessment matter, and the way that decision-makers meet the moment may make the difference between an optimal outcome and an outcome that subjects employers to liability. Here are four questions and answers for employers weighing their options in these situations.

District of Columbia’s Tipped Wage Workers Fairness Amendment Act: Mandatory Training and Notice Requirements Take Effect

In 2018, the District of Columbia enacted the Tipped Wage Workers Fairness Amendment Act (TWWF), preserving the use of the tip credit in the District, but imposing significant obligations on employers that employ tipped employees, such as mandatory sexual harassment prevention training and notice requirements. Certain aspects of the TWWF are only now being implemented.

 

Ninth Circuit Panel to Reconsider Decision Upholding California Mandatory Arbitration Ban

The panel of the Ninth Circuit Court of Appeals that largely upheld California’s law banning mandatory arbitration agreements in the employment context just withdrew its decision. On August 22, 2022, two of the three judges on the panel decided to withdraw the panel’s prior opinion in Chamber of Commerce of the United States of America v. Bonta regarding Labor Code 432.6 which sought to prohibit mandatory arbitration as a condition of employment.

Key Considerations for California Employers When Drafting a Remote Work Agreement

More than two years have passed since the start of the pandemic, and many workers continue to work from home in some capacity. In fact, companies are offering remote positions as a hiring incentive to increase their job candidate pools. Before agreeing to remote work arrangements with new hires or current employees, especially those who are hourly and nonexempt, companies may want to consider certain factors to ensure that the arrangements will be feasible.

Florida’s Stop Woke Law Is Sedated—Judge Blocks Law Limiting Workplace Bias Trainings

On August 18, 2022, U.S. District Judge Mark E. Walker issued a preliminary injunction blocking part of a Florida’s H.B. 7, known as the Individual Freedom Act (IFA), which prohibits employers from requiring employees to undergo a training “that espouses, promotes, advances, inculcates, or compels” employees to believe any of various sex- and race-based discrimination concepts.