Workforce Bulletin

It’s that time of year again—the Massachusetts Department of Family and Medical Leave (DFML) has rolled out new Paid Family and Medical Leave (PFML) workplace posters, workplace notification forms, and rate sheets for all employers in the Commonwealth. These updated resources provide the DFML’s yearly updates to eligibility requirements, maximum wage replacement benefit amounts, and contribution amounts. Employers take note that the following changes take effect on January 1, 2023:

1. Minimum earnings eligibility: PFML will cover most employees who have earned at least ...

As we recently reported, on December 9, 2022, the New York City Department of Consumer and Worker Production (“DCWP”) announced that it was postponing enforcement of the Automated Employment Decision Tools (“AEDT”) law, until April 15, 2023, due to the high volume of public comments it received regarding its proposed rules.

On December 21, 2022, the Michigan Supreme Court held that the Whistleblowers’ Protection Act (“WPA”) protects employees who report that their employer has violated “suspected” laws in a case called Janetsky v. County of Saginaw.  In a first-of-its-kind ruling, the divided Court in Janetsky concluded that an assistant county prosecutor could bring WPA claims against her supervisor who she believed illegally offered a below-minimum plea deal.

As featured in #WorkforceWednesday:  This week, we’re recapping some of the most significant changes that impacted employers in 2022.

As featured in #WorkforceWednesday:  This week, we discuss how the Speak Out Act pays homage to the fifth anniversary of the #MeToo movement, outline the enhanced implications of the California Privacy Rights Act, and note the record-breaking numbers set by the Securities and Exchange Commission’s (SEC’s) whistleblower program.

As we previously noted, New York City’s Automated Employment Decision Tools Law (“AEDT Law”), regulating employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions, had an effective date of January 1, 2023.  In late September 2022, we reported about the New York City Department of Consumer and Worker Protection (“DCWP”) issuing a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to the AEDT law.  The hearing subsequently took place on November 4, 2022, and dozens of organizations and individuals submitted comments, leaving many observers wondering whether the comments would impact the quickly approaching January 1, 2023 enforcement date and how the DCWP would interpret the law.

Under the Americans with Disabilities Act (ADA), employers do not have to excuse an employee from performing an essential function of a job as a reasonable accommodation. Several courts have found that a job duty is an essential function where an employee performs it up to twenty percent of the time, particularly where the job description suggests that an employee must be able to perform it.  The Eleventh Circuit has recently gone in a different direction.  In Brown v. Advanced Concept Innovations, Inc., the Eleventh Circuit held that such a function was not essential, and thus, an employer violated Florida’s anti-discrimination law (which courts interpret consistently with the ADA) by failing to excuse an employee from performing it. While Brown may arguably be an outlier, it reinforces the importance of maintaining accurate and up-to-date job descriptions.

In June 2022, the California Division of Occupational Health and Safety (“Cal/OSHA”) proposed initial non-emergency standards for COVID-19 prevention in the workplace that were intended to replace the current COVID Emergency Temporary Standards (“ETS”) set to expire on December 31, 2022.  Following oral and written comments received from the public, the Cal/OSHA Standards Board (the “Board”) made further updates to the proposed non-emergency standard as of December 2, 2022 (the “Anticipated New Regulation”).  It is expected that the Board will vote on the Anticipated New Regulation, with no further modifications, at its upcoming meeting on December 15, 2022.  The Anticipated New Regulation would then become effective from January 1, 2023 through December 31, 2024.

As featured in #WorkforceWednesday:  This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law.

Laws protecting whistleblowers generally afford anti-retaliation protections when employees “step out of their role” to report discrimination and dangerous or illegal activity, but not to employees when they are performing their issue spotting job duties.  Employers who understand this distinction are well positioned to manage underperforming employees in sensitive issue-spotting roles such as information technology, compliance, internal audit and even in-house counsel without running afoul of anti-retaliation laws.  The Second Circuit Court of Appeal’s recent decision affirming the Southern District of New York’s dismissal of whistleblower retaliation claims in Johnson v. Board of Education Retirement System of City of New York illustrates this distinction.