Workforce Bulletin

Maryland is poised to join the growing list of jurisdictions that have enacted pay transparency requirements for job postings, which includes jurisdictions such as California, Colorado, Hawaii, Illinois, New York, Washington State, and Washington D.C. House Bill 649 was passed by the General Assembly earlier this month, and if signed by the Governor, will take effect on October 1, 2024.

Maryland’s Current Pay Transparency Law

Maryland’s current wage history and wage range law that went into effect on October 1, 2020, already requires employers to disclose the wage range for a ...

In a recent decision affirming summary judgment in favor of defendant Human Resources Agency of New Britain, Inc. (the “Agency”), the Connecticut Appellate Court (decision.pdf) provided employers with useful guidance about managing disabled employees who are also qualified medical marijuana users, and appropriately requiring reasonable suspicion drug testing.

Background

In early 2018, the Agency hired Alyssa Bartolotta (“Bartolotta”) as a teaching assistant in its early childhood division.  As part of her onboarding, Bartolotta acknowledged receipt of an ...

The U.S. Court of Appeals for the Eleventh Circuit recently weighed in on the circuit-splitting debate over the proper causation standard for Family and Medical Leave Act (“FMLA”) retaliation claims. In a win for employers, the Eleventh Circuit held that the proper standard is the heightened “but-for” causation standard, rather than the “motivating factor” causation standard, leading it to affirm the district court’s grant of summary judgment in favor of defendant Walgreen Co. (“Walgreens”) against plaintiff Doris Lapham (“Lapham”) on her FMLA ...

This springtime, Washington, D.C. employers may want to spruce up their compliance checklists to stay ahead of new pay transparency obligations. On January 12, 2024, Mayor Bowser signed the Wage Transparency Omnibus Amendment Act of 2023 (the “Act”), which modifies the Wage Transparency Act of 2014. The Act imposes new pay disclosure requirements for job postings, prohibits employer inquiries into an applicant’s wage history, and directs employers to post a new notice in their workplaces. Like most legislation in D.C., the Act was subject to review for a period of 30 ...

A recent decision from the Northern District of Illinois highlights new legal hurdles for employers using AI-powered video interview technologies under Illinois’ Biometric Information Privacy Act (BIPA), 740 ILCS 14/15.  In Deyerler v. HireVue, initially filed over two years ago in January 2022, a class of plaintiffs alleged that HireVue’s AI-powered facial expression and screening technology violated BIPA.  According to the complaint, HireVue collected, used, disclosed, and profited from “biometric identifiers” without complying with the requirements of BIPA.  ...

While recent public attention has largely focused on generative artificial intelligence (AI), the use of AI for recruitment and promotion screening in the employment context is already widespread.  It can help HR-professionals make sense of data as the job posting and application process is increasingly conducted online. According to a survey conducted by the Society for Human Resource Management (SHRM),[1] nearly one in four organizations use automation and/or AI to support HR-related activities, such as recruitment, hiring, and promotion decisions, and that number is posed ...

Less than two weeks after it last penalized a private employer for alleged violations of whistleblower protection rules in its employee separation agreements, the Securities and Exchange Commission (“SEC”) once again takes aim at the language of a separation agreement it alleges violates Rule 21F-17(a) of the Exchange Act (“Rule 21F”). Just yesterday, the SEC issued an Order settling charges with a commercial real estate services and investment firm for such violations through a fine of $375,000, among other terms. The SEC’s aggressive and continued ...

As employers throughout New York State are now determining how to comply with the newest State-wide pay transparency law, which took effect on September 17, 2023, the New York State Department of Labor (DOL) released proposed regulations to facilitate the legislative goal of increasing pay transparency. As discussed in depth here and here, the law requires employers to disclose the pay range and job description (if existing) in job postings. Should these proposed regulations pass the 60-day comment period unchanged, there are several highlights worth ...

With amendments to the Colorado Equal Pay for Equal Work Act (the “Act”) set to take effect on January 1, 2024 (the “2024 Amendments”), the Colorado Department of Labor and Employment (“CDLE”) has started the process of updating its compliance guidance for employers. The first update comes in the form of a revised Interpretative Notice & Formal Opinion ("INFO") #9, which the CDLE published on July 28, 2023.

California businesses, including employers, that have not already complied with their statutory data privacy obligations under the California Consumer Privacy Act (CCPA) as amended by the California Privacy Rights Act (CPRA), including as to employee and job applicant personal information, should be taking all necessary steps to do so. See No More Exceptions: What to Do When the California Privacy Exemptions for Employee, Applicant and B2B Data Expire on January 1, 2023. As background, a covered business is one that “does business” in California, and either has annual gross revenues of $25 million, annually buys sells or shares personal information of 100,00 consumers or households, or derives 50 percent or more of its annual revenues from selling or sharing consumers’ personal information. It also applies, in certain circumstances, to entities that control or are controlled by a covered business or joint ventures. Covered businesses may be exempt from obligations under certain enumerated entity-level or information-level carve-outs.

On January 26, 2023, a Michigan appellate court panel in Mothering Justice v. Attorney General issued a ruling to halt changes to the State’s paid sick leave law and an increase to the State’s minimum wage for hourly workers that were set to go into effect on February 19, 2023. The ruling is the latest development in a saga that has been ongoing for more than four years.

On January 1, 2023, Washington joined the growing list of states requiring pay transparency in job postings. Amendments (the “Amendments”) to the Washington State Equal Pay and Opportunities Act (the “EPOA”) require covered employers to disclose pay range, benefits, and other compensation in job postings. The Washington Department of Labor and Industries issued an administrative policy (the “Guidance”) to provide guidance regarding the broadened disclosure requirements.

Employers with employees in the District of Columbia have until Monday, October 31, 2022, to comply with a specific notice provision contained in the D.C. Non-Compete Clarification Amendment Act of 2022 (B24-0256) (the “Amendment”).

On Friday, September 23, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) released a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to its Automated Employment Decision Tool law (the “AEDT Law”), which goes into effect on January 1, 2023. As we previously wrote, the City passed the AEDT Law to regulate employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions; as written, however, it contains many ambiguities, which has left covered employers with open questions about compliance.

The United States Supreme Court (“SCOTUS”), in Dobbs v. Jackson Women’s Health Organization, has held that there is no constitutional right to abortion, overruling Roe v. Wade and Casey v. Planned Parenthood.

Prompted by the widespread adoption and use of video-conferencing software following the COVID-19 pandemic, many employers have shifted toward video interviews to evaluate potential hires. Even as employers have begun to require in-office attendance, the widespread use of video interviewing has continued, because it is a convenient and efficient way to evaluate applicants. Some of the video interviewing tools used by employers incorporate the use of artificial intelligence (AI) in an effort to maximize the effectiveness of the interview process. Often, employers contract with third-party vendors to provide these AI-powered interviewing tools, as well as other tech-enhanced selection procedures.

The D.C. Council (the “Council”) is poised to further postpone the Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) (the “Act”). On March 1, 2022, Councilmember Elissa Silverman introduced emergency legislation (B24-0683) that would push back the Act’s applicability date from April 1 to October 1, 2022. Councilmember Silverman simultaneously introduced and the D.C. Council adopted an emergency declaration resolution (PR24-0603) allowing the measure to proceed directly to Mayor Muriel Bowser’s desk for signing after a single reading.

On December 27, 2021, the Centers for Disease Control and Prevention (CDC) announced an update to its isolation and quarantine guidance. Although the CDC’s update shortens both the isolation and quarantine periods, as described more fully below, the changes largely affect only asymptomatic individuals. Moreover, because local guidance may differ from the CDC’s recommendations, employers should keep in mind all applicable state and local requirements when deciding whether to amend their own rules.

On December 22, 2021, the New York Department of Labor (“DOL”) adopted rules (“Rules”) implementing the state’s sick leave law (NY Labor Law §196-b, or the “Sick Leave Law”), providing long-awaited clarification of the Sick Leave Law, which went into effect over a year ago on September 30, 2020. The Rules, codified as Section 196 to Title 12 of the NYCRR, were proposed on December 9, 2020, and adopted without change. In addition to providing definitions of terms used in the Sick Leave Law, the Rules address three topics: (i) documentation an employer may require to verify an employee’s eligibility to use sick leave; (ii) how to count the number of employees an employer has for the purposes of determining employees’ sick leave entitlement; and (iii) how to calculate an employee’s accrual of sick leave. In addition, the DOL’s response to public comments it received after the Rule was proposed, explain how carryover of accrued unused sick leave works.

As we previously reported, effective November 5, 2021, the Occupational Safety & Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure that covered employees are fully vaccinated or provide a negative COVID-19 test at least weekly.

On November 6, 2021, just one day after the OSHA ETS became effective, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the regulation in a case captioned BST Holdings, LLC v. OSHA. Inasmuch as the OSHA rule’s first milestones are December 5, when most ...

On September 22, 2021, California Governor Gavin Newsom signed into law a groundbreaking bill that affects warehouse distribution centers (“covered employers”) and their employees.

Effective January 1, 2022, AB 701, requires covered employers to provide nonexempt employees with a written description of each quota that the employee is subject to, including the number of tasks to be performed, or materials to be produced or handled, and any potential adverse employment action that could result from failure to meet the quota. The disclosures must be made at the time of hire, or ...

As we previously reported, the American Rescue Plan Act of 2021 (ARPA) was signed into law on March 11, 2021, requiring, among other things, the Pension Benefit Guaranty Corporation (PBGC) to issue its implementing regulations by July 9, 2021. As promised, PBGC issued an interim final rule, 86 Fed. Reg. 36598 (July 12, 2021) (the IFR), on a major element of the rescue plan―the Special Financial Assistance Program (SFA)―intended to provide a one-time payment to the estimated 200 most financially troubled multiemployer pension plans to help them survive and pay pensions through ...

Washington, D.C. employers have more time to get their non-compete ducks in a row. On August 23, 2021, Mayor Bowser signed the Fiscal Year 2022 Budget Support Act of 2021 (B24-0373) (the “Support Act”), which includes various statutory changes necessary to implement the D.C. FY 2022 budget. As expected, the Support Act postpones the applicability date of the Ban on Non-Compete Agreements Amendment Act of 2020 (the “Non-Compete Act”) until April 1, 2022. The postponement not only provides more time for employers to prepare for the non-compete ban—it also permits the D.C ...

Counties across California are making a detour on the road to easing COVID-19 restrictions.

Los Angeles County  

On July 16, 2021, Los Angeles County issued an Order of the Health Officer (“the Order”) that requires all persons to wear face masks while in all indoor public settings, venues, gatherings, and businesses (i.e., office workplaces, retail, restaurants, theaters, meetings), with limited exceptions.  In indoor settings where there is close contact with unvaccinated individuals, the Order recommends that people consider wearing a higher level of protection, such as ...

In the wake of last week’s updated guidance from the Centers for Disease Control and Prevention (CDC) easing social distancing and mask requirements for fully vaccinated people, on May 19, 2021, New York State issued its own guidance that, effective immediately, mostly adopts those new recommendations. As of May 19, most New York employers may allow individuals who have been fully vaccinated to stop wearing a mask and social distancing in their workplace.

Importantly, every business also has the discretion to continue requiring consistent rules regarding social distancing and ...

The Illinois Employee Sick Leave Act (“Act”) is what is known as a “kin care” law; i.e., it generally requires Illinois employers that provide paid or unpaid personal sick leave benefits to their employees to allow employees to use such leave to attend to a covered family member’s illness or injury, “on the same terms” as the employees would use their sick leave benefits for their own illness or injury. A “covered family member” means an employee's “child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild ...

On May 18, 2016, the U.S. Department of Labor (“DOL”) announced the publication of a final rule that amends the “white collar” overtime exemptions to significantly increase the number of employees eligible for overtime pay. The final rule will go into effect on December 1, 2016.

The final rule provides for the following changes to the executive, administrative, and professional exemptions:

• The salary threshold for the executive, administrative, and professional exemptions will increase from $23,660 ($455 per week) to $47,476 ($913 per week).
• The total annual ...