Employment

On December 21, 2022, Governor Hochul signed into law S.9427-A/A.10477, which requires all private sector New York employers to list salary ranges for all advertised jobs and postings.  This law takes effect on September 17, 2023. 

2022 has been an eventful year for New York employers, as the State and City have instituted a variety of new employment laws.  Top of mind are New York City’s Salary Transparency Act and New York City’s sweeping regulation of automated employment decision tools; but we have also seen other laws emerge that may have missed employers’ radars.  As 2022 comes to a close, we highlight below some of these important new developments.

President Biden has signed into law the federal "Speak Out Act" limiting the enforceability of pre–dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes.  The Act takes effect immediately.

As described in more detail in our prior post, the Massachusetts Department of Family and Medical Leave (DFML) recently posted proposed changes to its Paid Family and Medical Leave (MAPFML) regulations.  Mintz attorney Patricia Moran gives updates on these changes which are intended to clarify the employer’s obligation to maintain employment-related health insurance benefits during MAPFML leave. 

Effective January 1, 2023, New York City employers will be prohibited from using artificial intelligence in employment decision-making processes unless they take a number of specific and affirmative steps prior to doing so, including a bias audit of the tool.  These requirements have emerged following the passage of New York City Local Law 144 in December 2021, which creates a specific regime employers must adhere to in order to utilize automated employment decision tools, which the City has referred to as “AEDTs”. Many questions emerged following the passage of Local Law 144  and in response to some of these inquiries, the City’s Department of Consumer and Worker Protection (“DCWP”) has proposed rules that provide some answers, expand upon Local Law 144, and regulate the use of AEDTs.  Mintz attorneys Corbin Carter, Michelle Capezza and Evan Piercey analyze and discuss these proposed rules.

The Boston Celtics recent scandal comes at a time when workplace harassment claims (as reported by the EEOC) are on the rise, yet consensual office romantic relationships remain fairly common.  While most employees do not want their employers placing limits on whom they may seek as a romantic partner, from an employer’s viewpoint, the risks of such romances are clear, as they can easily cause real issues in the workplace: interoffice gossip, lack of productivity, reduced moral, allegations of favoritism, or worse, claims of sexual harassment. Mintz attorney Delaney Busch discusses key takeaways from this scandal and policies to minimize the employer’s risk.

California has now joined New York City and Colorado in requiring employers (for Golden State employers, of 15 or more) to publish “pay scales” in job postings. As with many things California, however, the new law (which becomes effective on January 1, 2023) regulates, but doesn’t guide. Pay transparency may be a worthy goal to effectuate parity, but employers face more questions than the new mandate answers. Mintz attorneys Paul Huston and Jen Rubin developed a field guide for pay “rangers” to help human resource professionals tackle this new law.

On August 19, 2022, the Departments of Health and Human Services, Treasury and Labor (the "Departments") issued final rules (the “Final Rules”) incorporating comments received on the interim rules issued in July and October 2021, clarifying some of the requirements set forth in Title I of Division BB of the Consolidated Appropriations Act, 2021 (the "Act") and the interim rules and accounting for relevant federal court rulings. In particular, the Final Rules primarily address three distinct but related topics: (1) eliminating the “rebuttable presumption standard,” (2) adding new rules regarding “downcoding,” and (3) reminding the arbitrators of their written requirements.  In this post Mintz attorneys Mark Aspis and Alden Bianchi discuss the implication of the Final rules which will be effective on October 25, 2022.

The Department of Homeland Security is seeking public comment on its proposed changes to I-9 document examination requirements, including one which would create a framework allowing DHS to pilot or implement permanent alternatives to in-person I-9 document examination requirements.

In a recent opinion, Williams v. Kincaid (4th Cir. Aug. 16, 2022), the 4th Circuit Court of Appeals held that gender dysphoria is a covered disability under the Americans with Disabilities Act (ADA).  Mintz attorney Kevin Kim summarizes the opinion and discusses its impact.

Member and Chair of Mintz’s ESG practice group, Jennifer B. Rubin and Associate Greer Clem co-authored an article published by Corporate Counsel covering the crime-fraud exception to attorney-client privilege. The authors summarized, "An important and long-standing exception to the attorney-client privilege, the crime-fraud exception, bears examination in the post-Dobbs world. The crime-fraud exception divests attorney-client privilege of confidentiality when a lawyer’s advice facilitates a client’s crime...The crime-fraud exception to attorney-client privilege therefore merits attention for counsel, who should consider the potential areas of risk and some mechanisms to protect the confidentiality of these communications."

In a span of a week the NLRB signed Memoranda of Understanding (“MOU”) with both the Federal Trade Commission and the U.S. Department of Justice’s Antitrust Division.  These agreements come just over a year after President Biden issued an “Executive Order on Promoting Competition in the American Economy,” which called on several federal agencies to address competition issues, and included a mandate for agencies to “coordinate, promote, and advance Federal Government efforts to address overconcentration, monopolization, and unfair competition in or directly affecting the American economy.”  While the NLRB was not explicitly identified in the Executive Order (and the DOJ and FTC were), these recent partnerships unmistakably indicate that labor issues and anti-competition issues are inextricably linked, and the NLRB’s willingness to collaborate with other federal agencies to carry out its mandate under the National Labor Relations Act.  Moreover, these recent efforts also represent a clear step by President Biden to follow through on his campaign promise to strengthen unions, worker organizing efforts, and collective bargaining.  Mintz attorneys Evan Piercey, Tinny Song and Richard Block discuss these MOUs in greater detail below and provide some takeaways for employers and business leaders. 

On August 11, 2022, the Centers for Disease Control and Prevention (CDC) once again revised its public health recommendations regarding COVID-19 prevention measures in general community settings, including non-healthcare workplaces.  In doing so, the CDC acknowledged that “COVID-19 is here to stay,” and seemed to shift its focus from viral containment to lessening the risk of severe illness and death associated with the virus.  Chief among these changes is the CDC’s removal of its quarantine recommendation – individuals are no longer advised that they should quarantine following close contact exposure to COVID-19, regardless of their vaccination status, where they do not experience symptoms or test positive. Mintz attorneys Corbin Carter and Michael Arnold discuss these new revised recommendations and its impact on employers.

Earlier this year we wrote on the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana that struck a major blow to California’s Private Attorneys General Act (“PAGA”). Now on the heels of the Viking River decision, California officials have announced that a proposed law to overhaul PAGA, called the California Fair Pay and Employer Accountability Act (“Act”), will be put on a referendum to the voters in November 2024. The Act proposes in large part to repeal PAGA, including PAGA’s mechanism that allows an employee to sue in civil court on the state’s behalf to enforce the California Labor Code and seek penalties for doing so. Mintz attorneys Jennifer Rubin and Mike Flesuras highlight why PAGA is under fire, what the Act would change, and some key takeaways for employers to combat PAGA lawsuits leading up to the 2024 ballot.  

In previous posts (available here and here) we reported on some of the legal consequences from Dobbs v. Jackson Women’s Health Organization on employer-sponsored group health plan coverage of abortion-related travel benefits. In this post, Mintz attorneys Alden Bianchi, Greer Clem, and Jen Rubin address the larger concern related to the legality of these benefits in the face of a burgeoning number of states seeking to extend their extra-territorial reach to bar or even criminalize individuals who provide abortion-related travel. 

After several months, the EEOC has once again updated its guidance and answers regarding the ongoing COVID-19 pandemic’s interaction with anti-discrimination laws, with a particular focus on the workplace screening, testing, and mandatory vaccination policies.  This guidance, updated on July 12, 2022, provides important clarifications to Section A (Disability-Related Inquiries and Medical Exams), Section C (Hiring and Onboarding), Section G (Return to Work), and Section K (The ADA and COVID-19 Vaccinations).  Mintz Employment Attorney Danielle Bereznay discusses the key details.

Dobbs impacts employer-sponsored group health plan coverage for abortion services in states where abortion is, or becomes, illegal, and abortion-related travel benefits.  While our earlier post focused on coverage of abortion and abortion-related travel services under a group health plan, and related ERISA preemption considerations, in this post Mintz attorneys Alden Bianchi, Michelle Capezza and Patricia Moran examine other approaches available to employers that seek to make these benefits available, such as HRAs, health FSAs, excepted benefit EAPs and HSAs.