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.”
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.
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.
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.
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.
The 2022 regular session of the Louisiana Legislature was a busy one, although there were only two new notable employment laws.
On June 7, 2022, the Minnesota Department of Labor and Industry (MNDOLI) issued its long-awaited approved employer notice regarding requirements under the Frontline Worker Pay Law.
As expected, the Minnesota Department of Labor and Industry recently provided an update regarding the new Frontline Worker Pay Law by distributing a fact sheet and a set of answers to frequently asked questions (FAQs).
Employers in Ontario have been waiting for clarification on the interpretation of COVID-19 leave provisions throughout much of the pandemic. Employers had hoped that the Court of Appeal’s decision in Taylor v Hanley Hospitality Inc. would provide clarity on the implications of Employment Standards Act, 2000 infectious disease emergency leave (IDEL) on an employee’s employment status.
On April 29, 2022, Minnesota Governor Tim Walz signed Senate File (S.F.) No. 2677 into law, replenishing the state unemployment coffers and authorizing payments to various frontline workers. This new law requires Minnesota employers to provide notice to eligible frontline workers regarding potential additional benefits available to them.
In spite of significant opposition from Maine’s business community, including the Maine State Chamber of Commerce and leaders in the tourism, hospitality, and small business communities, Governor Janet Mills signed into law Legislative Document (L.D.) 225, “An Act Regarding the Treatment of Vacation Time upon the Cessation of Employment” on April 7, 2022.
On March 18, 2022, the Eleventh Circuit Court of Appeals ruled in Compere v. Nusret Miami, LLC, a collective action under the Fair Labor Standards Act (FLSA), that Nusr-et Steakhouse properly used automatically charged fees on bills to pay its employees’ wages because the fees were service charges. The plaintiffs, a group of tipped employees, had argued these fees were not service charges but instead were tips. The distinction is critical because service charges and tips are treated very differently under federal laws and regulations.
On March 9, 2022, the Ontario government announced a plan to bring an end to all COVID-19 restrictions by April 27, 2022. Here is a summary of the upcoming employment-related changes.
On February 28, 2022, the California Department of Public Health (CDPH) issued new guidance, further loosening the rules for wearing COVID-19–related masks in the state. Effective March 1, 2022, unvaccinated individuals are no longer required to mask in indoor public settings, although the CDPH included “a strong recommendation” that all individuals, “regardless of vaccine status, continue indoor masking.”
On February 23, 2022, the Los Angeles County Department of Public Health (LACDPH) issued an order, effective February 25, 2022, that slightly loosened the rules for wearing COVID-19 masks in the county. One day after the LACDPH order, on February 24, 2022, Los Angeles Mayor Eric Garcetti issued the interim “Public Order Under City of Los Angeles Emergency Authority” that mirrored the new Los Angeles County order. While these revisions make the orders from both the county and city much more similar to the California state masking rules currently in effect, they remain stricter than the current state rules.
On February 27, 2022, New York City Mayor Eric Adams announced that if COVID-19 indicators continue to display low risk levels, the “Key to NYC” will be lifted, effective March 7, 2022. Individuals will no longer be required to show proof of vaccination to enter certain covered establishments, such as indoor dining, entertainment, and fitness establishments. Former New York City mayor Bill De Blasio implemented the Key to NYC through Emergency Executive Order 225 on August 17, 2021.
On January 31, 2022, the California State Assembly passed Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), which would potentially provide increased rights to the state’s more than 500,000 fast-food workers. If passed by the California State Senate and signed into law by Governor Gavin Newsom, the FAST Recovery Act would create the Fast Food Sector Council within the California Department of Industrial Relations (DIR) and add new statutory requirements aimed at holding fast-food franchisors liable for certain actions of its franchisees.
On January 1, 2022, amendments to Illinois’s Lodging Services Human Trafficking Recognition Training Act (820 ILCS 95/) took effect, ostensibly adding restaurants and truck stops to the act’s purview. Under the amended act, “a lodging establishment, restaurant, or truck stop shall provide its employees with training in the recognition of human trafficking and protocols for reporting observed human trafficking to the appropriate authority.”
Nevada’s Occupational Safety and Health Administration (Nevada OSHA) is performing targeted inspections of Nevada’s hospitality establishments. Even though Nevada OSHA’s “Inspection Targeting Plan and Emphasis Programs” document was last updated in August 2021, the programmed inspections are continuing with local emphasis programs related to hotels (NAICS 721110) and casino-hotels (NAICS 721120).
On January 18, 2022, the City of Milwaukee Common Council passed an ordinance that would require masks to be worn indoors until March 1, 2022. The city’s acting mayor has not yet signed the order, but he has signaled that he is likely to do so.
On December 13, 2021, New York Governor Kathy Hochul instituted a mandate requiring that masks be worn in indoor public spaces, unless a covered business has implemented a mandatory vaccination requirement. The mandate was set to be reevaluated on January 15, 2022. However, as part of her “Winter Surge Plan 2.0,” and before the mandate’s original expiration date, Governor Hochul extended the mask-or-vaccine requirement for an additional two weeks, until at least February 1, 2022. As part of the announcement, the governor indicated that the state would reassess masking requirements in February 2022.
On January 12, 2022, just one week after issuing mask mandates, Minneapolis Mayor Jacob Frey and St. Paul Mayor Melvin Carter issued executive orders mandating that places of public accommodation serving food and drinks indoors require persons to furnish proof of vaccination or negative PCR or antigen tests. Then, on January 13, 2022, and January 14, 2022, respectively, Mayor Carter and Mayor Frey each issued additional emergency regulations amending their January 12, 2022, orders.
New Orleans has revived its mask mandate for indoor spaces, effective January 12, 2022. Citing increased COVID-19 infection and hospitalization rates, Mayor Latoya Cantrell has ordered that all individuals over the age of two who do not have breathing complications must wear masks “when in indoor spaces outside the household, unless actively eating or drinking.”
On December 23, 2021, Cook County, Illinois, issued Public Health Order No. 2021-11, joining the City of Chicago in requiring certain indoor establishments (including restaurants, gyms and fitness centers, and entertainment venues) to verify the COVID-19 vaccination status of patrons five years of age and older, effective January 3, 2022.
On December 6, 2021, New York City Mayor Bill de Blasio announced a first-in-the-nation vaccination order for private-sector workers in New York City, set to take effect on December 27, 2021. The New York City commissioner of Health and Mental Hygiene issued an order, dated December 13, 2021, requiring COVID-19 vaccination in the workplace, and, on December 15, 2021, the city promulgated guidance regarding how employers should implement the order.
On December 10, 2021, New York State Governor Kathy Hochul announced a new mandate requiring that masks be worn in indoor public spaces, unless a covered business has implemented a mandatory vaccination requirement.
On November 10, 2021, Germany’s Federal Labor Court (Bundesarbeitsgericht) ruled (Case No. 5 AZR 334/21) that employers must provide employed bicycle couriers with all the equipment essential for the performance of their work, including bicycles and internet-enabled smartphones. Alternatively, an appropriate financial compensation for the use of a delivery person’s own bicycle and mobile phone may be agreed upon in the employment contract, the court ruled.
On December 6, 2021, outgoing New York City Mayor Bill de Blasio announced major expansions to New York’s “Key to NYC” program, which was implemented through Emergency Executive Order 225 and became effective on August 17, 2021. The mayor also announced a first-in-the-nation vaccination mandate for private-sector workers in New York City, which is set to take effect on December 27, 2021.
The Court of Appeal of the State of California, Fourth Appellate District, recently handed a potentially significant website accessibility win to the business community under the Unruh Civil Rights Act (Unruh Act) when it upheld a jury verdict in Thurston v. Omni Hotels Mgmt. Corp. (Cal. Ct. App. Sept. 23, 2021), finding that the blind user of a hotel’s website reservation mechanism lacked a “bona fide intent” to make a hotel reservation.
Employers will soon face stricter financial penalties for keeping their employees’ tips under a final rule published by the U.S. Department of Labor (DOL) on September 24, 2021. Section 3(m)(2)(B) of the Fair Labor Standards Act (FLSA) prohibits employers—including “managers and supervisors”—from keeping employees’ tips “for any purposes,” regardless of whether employers claim a tip credit.