Workforce Bulletin

*UPDATE: Mayor Adams signed Int. 0209-2022 into law on May 26, 2023. It will take effect on November 22, 2023.

Mayor Eric Adams finds on his desk this week a New York City Council bill that would provide New York City based employees, visitors, and residents protection from discrimination based on their height or weight.  The proposed local law would amend Section 8-101 of the Administrative Code of the City of New York, also known as the NYC Human Rights Law (NYCHRL).

On May 11, 2023, an overwhelming majority of the New York City Council (44 out of 51 members) voted to amend the Administrative Code to add two more characteristics, height and weight, to this list. The bill will take effect 180 days after Mayor Adams signs it into law. If he does so, New York City will join a small cohort of places (including Michigan, Washington State and Washington, D.C., to name a few) that have legislated on this issue. 

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:

Human capital often drives the value of merger and acquisition (M&A) deals in the health care industry. Buyers involved in these deals must retain key employees to secure that value.

Epstein Becker Green’s Spilling Secrets hosts Erik W. Weibust and Katherine G. Rigby join forces with the Diagnosing Health Care podcast hosts Daniel L. Fahey and Timothy J. Murphy to talk about strategies to retain these employees.

On May 8, 2023 the New Jersey Department of  Labor and Workforce Development (“NJDOL”) announced that it has created a web page to highlight key provisions and provide guidance for compliance with the recently enacted Temporary Workers’ Bill of Rights (the “Law”). As we previously discussed, the Law creates notification requirements for temporary help service firms when placing a temporary laborer at a worksite, prohibits retaliation against a temporary laborer for exercising his or her rights under the Law, and requires equal pay and benefits for temporary laborers performing the same or substantially similar job functions as employees of the third party contracting employer at each worksite. Although the bulk of the Law’s provisions do not take effect until August 5, 2023, the notification and prohibition on retaliation provisions are effective as of May 7, 2023.

The web page provides an overview of the Law and a set of Frequently Asked Questions (“FAQs”) covering the Law’s key provisions. The FAQs discuss which provisions went into effect on May 7 and summarizes those set to take place August 5, noting that additional guidance will be published in the coming months.

On April 19, 2023, in Gulden v. Exxon Mobil Corp., a federal district judge in New Jersey concluded that federal courts lack subject matter jurisdiction to enforce preliminary orders to reinstate former employees under the Sarbanes-Oxley Act of 2002 (“SOX”).  In so doing, the district judge declined to enforce OSHA’s preliminary orders requiring ExxonMobil to reinstate two former employees to their jobs for the remainder of the agency’s investigation into the pair’s whistleblower complaint, reasoning that the statutory text only confers federal district courts authority to enforce final orders.  Gulden is a win for employers because it joins the growing chorus of federal district courts that have concluded that the Department of Labor may not force a company to preliminarily reinstate an alleged whistleblower before the Secretary of Labor’s final order. 

As featured in #WorkforceWednesday:  This week, we turn our focus to the conclusion of the COVID-19 Public Health Emergency (PHE) on May 11, 2023:

What does the end of the COVID-19 PHE mean for employers? Epstein Becker Green attorneys Brianna Richardson and Eric I. Emanuelson Jr. describe the challenges employers may encounter as they navigate crucial decisions regarding policies, procedures, and benefits during the ongoing transition process.

Some of the most notable recent mass shootings in the United States have been perpetrated by current or former employees in their workplaces.  For example, on April 10, 2023, an employee of a bank in Louisville, Kentucky, who had been notified that he was going to be terminated, shot and killed five bank employees and wounded many others who were attending a morning staff meeting.  In 2021, a Santa Clara Valley Transportation Authority employee shot and killed nine of his fellow employees in a San Jose, California railyard.  In its publication, “Active Shooter Incidents in the United States in 2022”, the FBI reported that of the 50 active shooter incidents in the United States in 2022, 14 of them, comprising 28 percent of the total, occurred in “commerce” settings. 

On May 3, 2023, New York Governor Kathy Hochul announced – and then signed into law – the New York Legislature’s 2024 Budget Agreement (“Budget”), which includes increases to the state’s minimum wage.  Effective January 1, 2024, the minimum wage will increase to $16 per hour in New York City and Nassau, Suffolk, and Westchester counties, and to $15 per hour in the remainder of the state.  The minimum wage will then increase by another $.50 each year in 2025 and 2026—reaching $17 per hour in downstate New York by 2026. Subsequent annual increases to the minimum wage will be tied to the inflation rate. The State Department of Labor (DOL) is required to publish future adjusted minimum wage rates by no later than October 1st of each year.

On Thursday May 4, 2023, the Biden-Harris Administration announced its plan to implement artificial intelligence (“AI”) safeguards to “protect people’s rights and safety.” 

Given the rapid development of AI in workplaces, public health, education, and security, the Administration seeks to underscore related risks and opportunities.  Vice President Kamala Harris and senior Administration officials have met with leaders at the forefront of AI innovation to call attention to “responsible, trustworthy, and ethical innovation with safeguards that mitigate risk and potential harms to individuals and our society.”

On Monday, the National Labor Relations Board (the “Board” or “NLRB”), with a majority of appointees by President Biden, i.e., “the Biden-Board,” reversed the short-lived General Motors LLC, 369 NLRB No. 127 (2020) decision and reinstated the Atlantic Steel test for analyzing whether an employee’s grossly unprofessional conduct when engaging in union or other protected concerted activity loses the protection of the National Labor Relations Act (“Act”). The Board issued Lion Elastomers, LLC, 372 NLRB No. 83 (2023) and reinstated Atlantic Steel 245 NLRB 814 (1979) and its progeny, making it more difficult for employers to discipline employees who engage in outrageous, otherwise inappropriate, speech and/or actions in the course of engaging in union or other protected concerted activity.

As featured in #WorkforceWednesday:  May is Mental Health Awareness Month, and employers are taking the opportunity to examine their policies and procedures around employee mental health. 

Epstein Becker Green attorney Shira M. Blank tells us more about the role employers can play in promoting and supporting mental health in the workplace.