Beltway Buzz, March 24, 2023
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
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NLRB General Counsel Says Confidentiality, Nondisparagement Clause Decision Applies Retroactively
On March 22, 2023, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo issued a memorandum clarifying the Board’s February 2023 decision that nondisparagement and confidentiality provisions in severance agreements are unlawful. In the memorandum, the GC states that she interprets the decision to apply retroactively to agreements already signed and that claims would not be time-barred as long as an employer maintains or enforces such terms.
New York Lawmakers Modify Pay Disclosure Law’s Applicability to Remote Jobs
With the September 17, 2023 effective date for New York’s new pay range disclosure requirements approaching, state lawmakers recently amended the law to clarify the scope of remote jobs to which the law applies and to relieve certain information retention requirements for employers. On March 3, 2023, New York governor Kathy Hochul signed Senate Bill S1326, amending the new pay transparency law that will require employers to disclose minimum and maximum annual salaries or hourly wages in advertisements for jobs, internal promotions, or transfer opportunities.
OFCCP to Open Contractor Portal to Certify Affirmative Action Program Compliance on March 31, 2023
On March 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) announced that it will open its online Contractor Portal tool on March 31, 2023, for federal contractors and subcontractors to certify their compliance with Affirmative Action Program (AAP) requirements. Existing contractors must certify compliance through the portal by June 29, 2023.
Is March Madness a Concern for Employers? You Can Bet On It!
March Madness and the annual National Collegiate Athletic Association (NCAA) Men’s and Women’s Division I Basketball Tournaments routinely trigger countless office bracket contests and big distractions for workers. While March Madness can be an opportunity to boost employee engagement and workplace morale, it can also be a point of frustration for employers with the potential for lost productivity. The spread of legalized sports wagering has only added fuel to the potential flame of distraction, and created additional concerns for employers. As the tournament games tip-off, here are some issues employers may want to consider.
Equal Pay Day: Addressing Potential Gender-Based Pay Disparities in the Workplace
The U.S. Equal Employment Opportunity Commission (EEOC) has expressed a renewed intention to enforce federal laws prohibiting discrimination in pay amid a reported persistent “pay gap” between women and men in the United States workforce. The effort comes as “Equal Pay Day” is being recognized in the United States on Tuesday, March 14, 2023, a date that is meant to symbolize how far into the next year women reportedly must work to earn what their male counterparts made in the previous year. Given these events, here are some action items that employers may want to consider.
Pregnant Workers Fairness Act Mandates Reasonable Accommodations
The recently passed Pregnant Workers Fairness Act (PWFA), set to go into effect on June 27, 2023, will require employers to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions. The requirement will apply to employers with 15 or more employees, unless the accommodation would cause the employer an undue hardship.
Manhattan District Attorney Sets Sights on Allegations of Employer Wage Theft
On February 16, 2023, Manhattan District Attorney Alvin L. Bragg Jr. announced the creation of a special unit to “investigate and prosecute” wage theft, harassment, and exploitation of workers. He also announced the establishment, in partnership with the New York State Department of Labor, of a fund to repay victims of such crimes. D.A. Bragg and his office further declared support for a proposed bill in the New York state legislature that would expand the existing crime of larceny to include wage theft.
Los Angeles Wage Office Shifts Interpretation of New Fair Work Week Ordinance
Part of a recently passed pay predictability ordinance in Los Angeles is already causing some confusion for employers over a provision requiring retail employers to pay workers a premium for working a second shift within ten hours of the first shift. Such tightly scheduled shifts often occur when a worker is needed to close and then open the next day, referred to as “clopening” shifts.
NLRB Judge’s Decision Tees Up Reconsideration of Test for Religious Exemption
On February 23, 2023, an administrative law judge for the National Labor Relations Board (NLRB) ruled that a Catholic university in Florida is exempt from the Board’s jurisdiction as a religious institution. But the case tees up the test for the religious institution exemption to be overturned by the full Board—which could open up more religious educational institutions to Board jurisdiction.
New Jersey Court Says Employee Discharged for Discipline Not Entitled to Payment for Accrued PTO
On February 22, 2023, the Superior Court of New Jersey Appellate Division ruled that a hospital employee discharged for disciplinary reasons was not entitled to payment of accrued paid time off (PTO) because the hospital had an express policy that PTO would not be paid out after a disciplinary discharge.
Is an OSHA Workplace Violence Standard for the Healthcare Industry on the Way?
The Occupational Safety and Health Administration (OSHA) has identified violence in healthcare settings as a significant occupational risk, and a new workplace violence standard for the healthcare industry could be on the horizon.
Beltway Buzz, February 24, 2023
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
Supreme Court Holds Highly Paid Employee Not Overtime Exempt Due to Daily Rate Pay
On February 22, 2023, the Supreme Court of the United States ruled that a former oil rig employee who was paid a daily rate that totaled more than $200,000 annually is entitled to overtime pay under the Fair Labor Standards Act (FLSA).
Los Angeles Predictable Scheduling Law Set to Take Effect
Retail employers in Los Angeles will soon be required to provide employees with written, good faith estimates of their schedules and offer extra hours to current employees before hiring new workers under a new ordinance that takes effect on April 1, 2023. The “Los Angeles Fair Work Week Ordinance” makes the city the latest jurisdiction to pass a predictable scheduling law,
Illinois Supreme Court Rules Privacy Act Claims Accrue With Each Biometric Scan
On February 17, 2023, the Supreme Court of Illinois held claims under the Illinois Biometric Information Privacy Act (Privacy Act or BIPA) accrue on each and every scan or collection and further allowed so-called per scan damages. The ruling could open employers up to colossal and potentially devastating damages if the legislature does not amend the Privacy Act.
Federal Judge Rules Grocery Store Did Not Retaliate Over Facemask Dress Code Policy
On January 23, 2023, a Massachusetts federal judge ruled that a group of former employees had not shown that a grocery store chain unlawfully retaliated against them for opposing a dress code policy that prohibited the wearing of facemasks with “Black Lives Matter” messaging.
Ninth Circuit Blocks California’s Ban on Mandatory Arbitration in Employment
On February 15, 2023, the Ninth Circuit Court of Appeals blocked a 2020 California law that attempted to prohibit employers from requiring employees and job applicants to agree to arbitration as a condition of employment. The Court’s 2-1 panel decision in Chamber of Chamber of Commerce of the United States of America v. Bonta resolved ambiguity regarding the enforceability of California Assembly Bill (AB) 51.
Collecting Data on Race and Ethnicity: White House Launches New Plan
The White House recently launched an effort to revise and update the statistical standards for race and ethnicity data collection across federal agencies with a stated goal of better reflecting the growing diversity of people in the United States. On January 26, 2023, the Office of Management and Budget (OMB) published a notice in the Federal Register in OMB’s 1997 Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (SPD 15).
New Changes to Section 19 Raise Questions for De Minimis Offenses, Regulation Z
Recently enacted changes to Section 19 of the Federal Deposit Insurance Act (Section 19) eased the restrictions on financial institutions when hiring individuals with criminal records, but the changes left some open questions regarding (i) the “de minimis” standard, and (ii) whether the changes to Section 19 effectively amended the Consumer Financial Protection Bureau’s (CFPB) Regulation Z (Reg Z), which applies to loan originators through Reg Z’s incorporation of Section 19 by reference.
Indiana Senate Approves Ban on Doctor Noncompete Agreements
On February 7, 2023, the Indiana Senate passed a bill to outright ban noncompete agreements between doctors and their healthcare provider employers, though with an amendment to remove restrictions on referral incentives.
New Jersey Governor Signs Temporary Worker Protections Law
On February 6, 2023, New Jersey Governor Phil Murphy signed a controversial bill known as the “Temporary Workers Bill of Rights” that seeks to equalize the compensation of temporary workers with that of regular employees, increase transparency requirements, and restrict placement fees paid to staffing agencies or firms.
OFCCP Proposes Two-Step Complaint Intake Process
On January 18, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published a notice proposing to modify its complaint process by adding a pre-complaint step whereby a complainant would be able to lay out basic allegations to allow OFCCP to make an initial assessment on whether the complaint would be proper and would be worth investigating.
Illinois Supreme Court Rules Privacy Act Claims Have Five Year Statute of Limitations
On February 2, 2023, the Supreme Court of the State of Illinois ruled that all claims under Section 15 of the state’s Biometric Information Privacy Act (Privacy Act or BIPA) have a five year statute of limitations. The decision partially overturns an appellate court ruling that had found claims under subsections 15(c) and 15(d) of the Privacy Act were governed by a one-year limitations period under Illinois law for defamation and privacy claims.
Minnesota’s New CROWN Act Becomes Law: State Now Prohibits Discrimination Based on Hair Style
On February 1, 2023, Minnesota governor Tim Walz signed a law to prohibit discrimination based on hair texture and hair styles, adding Minnesota to the growing list of states to enact such legislation, commonly referred to as the “CROWN Act.”
New York Judge Blocks COVID-19 Vaccination Mandate for Healthcare Facilities
On January 17, 2023, a New York trial court judge struck down the state’s vaccine mandate for healthcare workers, ruling that the New York State Department of Health (DOH) acted outside its authority and noting that “the COVID-19 shots do not prevent transmission.”
Congress Eases Criminal Offense Restrictions for Employment With Financial Institutions
Included in the defense spending bill signed by President Biden in December 2022 is a section with key provisions for financial institutions that will ease restrictions on hiring candidates with criminal records. Section 5705 in the National Defense Authorization Act (NDAA) for Fiscal Year 2023, titled “Fair Hiring in Banking,” further narrows convictions that would constitute a bar to employment under Section 19 of the Federal Deposit Insurance Act (Section 19) absent a written waiver by the Federal Deposit Insurance Corporation (FDIC).
San Francisco Passes Ordinance Requiring Private Employers to Provide Paid Military Leave
On January 20, 2023, San Francisco Mayor London Breed approved a city ordinance that will require large, private employers to provide differential paid leave for military reservists called up to active duty. The “Military Leave Pay Protection Act” adds Article 33Q to the city Police Code, and will make San Francisco the first major city in the United States to require that private employers provide differential paid leave to employees who are members of the military while they perform military service, the sponsor of the ordinance said when introducing it last year.
Albany County, New York’s New Law Requiring Disclosure of Pay Ranges in Job Postings
Employers in Albany County, New York, will soon be required to disclose expected pay ranges in job postings under a new pay transparency law. The law, which is expected to go into effect on March 9, 2023, adds Albany County to the growing list of jurisdictions across New York State with similar pay transparency requirements.
New York City’s New Job Protection Bill: Will It End At-Will Employment?
New York City is considering a bill known as the “Secure Jobs Act,” which would prohibit employers from discharging employees without “just cause” and advanced notice in most cases. Introduced on December 7, 2022, Int 0837-2022 would further restrict employers’ use of electronic monitoring and biometric data in making discharge and disciplinary decisions, and provide other protections for workers.