Workforce Bulletin

Next month, New Jersey private employers will need to start informing drivers before using GPS tracking devices in the vehicles they operate. A new state law that becomes effective April 18, 2022, requires employers to provide written notice to employees before using “electronic or mechanical devices” that are “designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.” The notification requirement applies to both employer-owned or -leased and personal vehicles.

As featured in #WorkforceWednesday:  This week, we’re looking at how employment laws and regulations are being impacted by the Biden administration’s recent actions on the international and national stages.

On March 3, 2022, President Biden, as expected, signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“Act”) into law. As we previously explained, the Act amends the Federal Arbitration Act (FAA) to make pre-dispute arbitration agreements for sexual assault and sexual harassment claims invalid and unenforceable. Parties remain free, however, to mutually agree to arbitration after a claim has been asserted. The new law delegates any disputes regarding the Act, including as to the arbitrability of claims, to the courts, and not an arbitrator, to decide.

While the fate of two COVID-19 vaccination rules by federal agencies were decided in January by the Supreme Court of the United States, millions of employees working for the federal government, whether directly or as a contractor, have been waiting for clarity in the wake of court orders halting Presidential efforts to promote vaccination.  Here is a brief update on the status of litigation challenging the extent of the President’s authority to command the Executive Branch.

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.

As featured in #WorkforceWednesday:  This week, we look at H.R. 4445, new federal legislation that addresses mandatory arbitration of sexual assault and harassment claims.

As featured in #WorkforceWednesday:  This week, we focus on new developments increasing whistleblower protections across the country and prohibiting mandatory arbitration of sexual assault and harassment claims.

A bill that will prohibit mandatory arbitration of sexual assault and sexual harassment claims is on its way from the House and Senate to President Biden for his signature.  It appears likely that the President will sign the bill, given that a statement issued by the President’s Office earlier this month states that the “Administration supports” passage of the bill.

As featured in #WorkforceWednesday: This week, we’re recapping major items shifting at the state, local, and federal levels, including whistleblower retaliation case law, pay transparency rules, and federal labor policies.

On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”).   Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.

In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”).  Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.

On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate.  Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.

First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met.  Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating).  Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.

As featured in #WorkforceWednesday: This week, we’re focusing on what employers can expect from the National Labor Relations Board (NLRB) in 2022.

New Yorkers who employ of domestic workers should note two recent amendments to the New York State Human Rights Law (“NYSHRL”) that went into effect on December 31, 2021, which together extend full protection of the NYSHRL to individuals employed in domestic service in New York.  In addition, beginning on March 12, 2022, employment protections afforded by the New York City Human Rights Law (“NYCHRL”) will apply to all domestic workers.

The first amendment to the state law removed language from the definition of “employee” under section 292(6), which had previously excluded domestic workers from most of the NYSHRL’s protections. Now, the only category of persons excluded from the definition of “employee” are those individuals employed by their parents, spouse, or child. The second amendment repealed section 296-b, which had protected domestic workers from harassment, but not other types of discrimination.