2023 year ahead_v05 Simple

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The (Still) Transforming Workplace

Expanding Existing Parameters

New Horizons

External forces causing calls for pay transparency, hybrid workplaces and increased accommodations continue to drive the expectations shaping employer-employee relations.

The (Still) Transforming Workplace

Your Core Constants

The (Still) Transforming Workplace

Your Core Constants

Expanding Existing Parameters

New Horizons

SECURE 2.0 Series

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The bi-partisan SECURE 2.0 Act of 2022 arrived on December 29, 2022, bringing with it required and optional changes that will be phased in over time for 401(k) plans and, in some cases, pension plans. Visit our Benefits Law Advisor blog to see all SECURE 2.0 articles and related content.

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New Jersey’s Expanded Mini-WARN Law to Take Effect April 2023

After a two-year delay, the amendment to the New Jersey Millville-Dallas Airmotive Plant Job Loss Notification Act, the state’s mini-WARN law, will take effect on April 10, 2023. The Act, as amended, expands the coverage of the law to workplace reductions-in-force and significantly increases an employer’s obligations.

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OSHA enforcement and regulatory rulemaking will be big in 2023. Jackson Lewis principals and former feds Courtney M. Malveaux and Melanie L. Paul say heat illnesses, infectious disease standards, electronic recordkeeping requirements, and higher fines are just some of the action areas for which employers need to prepare.

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The Atlanta City Council has amended the City of Atlanta Anti-Discrimination Ordinance to extend protections to citizens on the basis of criminal history status and gender expression in employment, housing, and public accommodations. The City of Atlanta Anti-Discrimination Ordinance was initially enacted in December of 2000.

As the patchwork of state and local requirements continue to proliferate, multijurisdictional employers face more challenges being aware of and keeping compliant with them.

Keeping Up

City of Atlanta Adopts New Protections for Criminal History Status, Gender Expression

U.S. Supreme Court Hears Oral Argument in Case Testing Limits of State Anti-Discrimination Law

303 Creative LLC v. Elenis weigh the rights of LGBTQ+ people to be free from discrimination in the marketplace against a Colorado business owner’s right to free speech. Regardless of how the Court decides, the impact will be on the groups protected by public accommodation laws as well as on how employers subject to public accommodation laws may approach their trade.

The Year Ahead in Workplace Safety

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The Year Ahead in Wellness

Even though workplace conversations about mental health and wellness have become more acceptable, most employers are not therapists. Jackson Lewis principals Michael Griffin and Michael Thomas discuss how employers can establish a better baseline beyond legal obligations to reap the benefits that come from a workplace where employees are healthy, show up fully and thrive.

The Year Ahead in Benefits

Benefits beyond the usual medical, dental and vision will continue to occupy HR ideas and initiatives in 2023. Jackson Lewis principals Joy Napier-Joyce and Melissa Ostrower note that employers will be proactive, formalizing and distributing policies focused on both retention through benefits and recession should one materialize.

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In 2023, employer “go-tos” may become “stay away froms” as existing employment and labor law policies and procedures are modified beyond recognition or abandoned all together.

Expanding Existing Parameters

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The SEC’s increasingly hard line against nondisclosure and confidentiality clauses in employee-separation agreements could cause a private company that contracts with publicly traded firms to be subject to scrutiny for these types of provisions. Such scrutiny would be in addition to that done by the NLRB and EEOC.

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If made final, the proposed rule would (at least on its face) effectively prohibit non-compete agreements other than in very limited circumstances. But that’s a big “if.” Narrowly drafted, modularly assembled restrictive covenants that can be removed while leaving others intact are still the best bet for strong agreements during this uncertain period of public comment and subsequent FTC next steps.

A Deeper Dive Into FTC’s Proposed Non-Compete Rule

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Manufacturers of Custom Products Protecting Trade Secrets Involved in Production Process

Manufacturers wanting to protect their trade secrets, especially those related to the production of custom products made for specific customers, should consider some general practices that can increase the likelihood of keeping valuable information out of the hands of competitors.

Caution Advised for Language in Employment Settlement and Severance Agreements

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Labor Board Returns to ‘Overwhelming Community of Interest’ Standard for Bargaining Units

In American Steel, the NLRB returned to the heightened 2011 standard for determining an appropriate bargaining unit in union representation cases. The new standard generally allows unions to “cherry pick” job classifications to organize, shifting the burden back to the employer contesting the proposed unit to show that excluded employees belong in the unit. It likely now will be easier for smaller groups of workers within an organization to unionize, so employers may want to conduct a bargaining unit analysis to determine whether there are opportunities to reinforce facts and practices that will enhance arguments supporting more favorable bargaining unit configurations.

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U.S. Supreme Court to Decide Whether Appeal of Denial of Motion to Compel Arbitration Stays Litigation

With an entrenched 6-3 federal circuit court split on the issue of whether a non-frivolous appeal of the denial of a motion to compel arbitration ousts a district court’s jurisdiction and discretion to proceed with litigation pending appeal, the U.S. Supreme Court will hear and decide Coinbase Inc. v. Bielskie in 2023, potentially effectuating the purposes of the Federal Arbitration Act: ensuring that courts enforce agreements to resolve disputes through private, binding arbitration.

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NLRB Decision Grants Easier Property Access for Off-Duty Contract Workers

As part of a wave of decisions overturning Trump-era precedent (e.g., Labor Board Returns to ‘Overwhelming Community of Interest’ Standard for Bargaining Units), the board’s Bexar II ruling prohibits property owners from excluding from publicly accessible areas contract workers who wish to engage in organizing activity on the worksite, unless the activity “significantly interferes with the use of the property or where exclusion is justified by another legitimate reason.” The ruling returns to the standard announced in 2011 and applies to all pending cases.

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Beyond Backpay: Labor Board Adds Extra Compensation to Employees in ‘Make-Whole’ Awards

In Thryv, Inc., the NLRB expanded its own authority to order consequential damages in all cases in which “make whole” relief is appropriate. Upon a satisfactory evidentiary showing, employers found to have violated the National Labor Relations Act will be ordered to compensate affected employees for all “direct or foreseeable pecuniary harms” resulting from unfair labor practices. As a result of this 3–2 remedy-expanding decision, unfair labor practice claims may further increase employer costs and liabilities, and will almost certainly make compliance proceedings more complex.

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The Year Ahead in Labor

Organizing and strike activity will continue its upward trajectory in 2023. Jackson Lewis principals Richard F. Vitarelli and Jonathan J. Spitz say macroeconomic factors (e.g., pay, staffing, health safety), a labor-leaning NLRB GC, and pro-union earmarks in government contracts are fueling the trend across the country.

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The Year Ahead in RIF/WARN Issues in the Current Economy

In what is likely the busiest time for workforce reductions since the pandemic began, employers should engage in longer-term, strategic thinking about how to adjust staffing levels. Jackson Lewis principals Michael Jakowsky and Isaac J. Burker offer best practices for WARN and disparate impact analyses.

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The Year Ahead in DOL Overtime and Independent Contractor Rules

New rulemaking to raise the salary level for exempt employees and an expected final DOL rule that is expected to make classifying workers as independent contractors less easy will be top-level topics in 2023. Jackson Lewis principals Jeffrey W. Brecher and Justin R. Barnes discuss the novel legal challenges likely to arise and how employers can prepare.

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The Year Ahead in the Proposed FTC Rule Banning Non-Competes

The sky is not yet falling for non-competes. Jackson Lewis principals Clifford R. Atlas, Daniel J. Doron and Erik J. Winton say the FTC’s four varieties of alternatives to its own proposed rules suggests now is the time for employers to read the room and address any potential issues.

Advancing technologies, shifting notions of acceptability, and re-energized approaches are all adding course-changing challenges for employers to navigate in 2023.

New Horizons

New York State Governor Signs Statewide Pay Transparency Law

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New York joined other states (e.g., California and Washington) in enacting pay transparency requirements in 2022. These obligations related to job advertisements will complicate compliance for covered employers that have several local pay transparency ordinances to comply with, including New York City’s.

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Complying With New Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act

The new Pregnant Workers Fairness Act (PWFA; effective 6/27/23) obligates employers with at least 15 employees to provide reasonable pregnancy accommodations, while the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP, effective 4/28/23) expands existing employer obligations under the FLSA to provide an employee with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth.

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The push for fuller transparency continues in 2023, with new state laws coming into effect and the possibility of federal-level activity. Jackson Lewis principals Laura A. Mitchell and Margaret J. (Peggy) Strange cover the compliance complexity of such a patchwork and address the best thing employes can do right now.

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With the looming Supreme Court religious accommodation case, the new Pregnant Workers’ Fairness Act and a COVID-induced, higher than usual employee Accommodation-IQ, employers can expect to face an increase in accommodation requests in 2023. In this podcast, Jackson Lewis principals Patricia Anderson Pryor and Katharine C. Weber explore the context and challenges of this expanding accommodations environment.

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Guidance on ADA Accommodations and Medical Restrictions’ ‘Plain Meaning’ from Federal Appeals Court

Finding that an employer did not violate the ADA by relying on a qualified employee’s medical restrictions to not award a promotion, the Seventh Circuit’s Tate v. Dart, et al. decision provides useful guidance for employers in determining whether an important part of a job constitutes an “essential function” under the ADA.

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How Much Information Must an Employee Submit to Support an Accommodation Request?

Simply providing a doctor’s note requesting an accommodation is not enough: The Eleventh Circuit’s recent Owens v. Georgia decision makes clear that where the link between a person’s physical or mental limitations and the requested accommodation is unclear, it is reasonable to require the employee to specifically inform the employer about how the accommodation sought will address the limitations before requiring the employer to initiate the interactive process.

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The Year Ahead in Pay Transparency/Equity

The Year Ahead in Accommodations

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New York City Automated Employment Decision Tools Law Postponed to April 15, 2023

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Originally set to go into effect on January 1, 2023, New York City’s Local Law 144, which regulates NYC employers’ use of automated employment decision tools (AEDT) in hiring and employment-related processes with the intention of protecting employees and job candidates from potential biases and discriminatory effects that may result from the use such tools, was pushed back given ongoing employer concerns over the broad scope of the law’s terms and lack of clarity around its various requirements.

The Year Ahead in Expanding Privacy Laws: CCPA/CPRA, AI, Electronic Surveillance

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The advanced technologies that facilitated much of the organizational productivity and business profitability during the pandemic will continue to raise legal and compliance issues in 2023. Listen as Jackson Lewis principals Jason C. Gavejian and Joseph J. Lazzarotti discuss the top issues data collection and use are causing for employers.

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The Year Ahead in Caffeinated Organizing

With a White House and NLRB that are more pro-labor than most recent past administrations, a “labor renaissance” will be the overarching theme of 2023. Jackson Lewis principals Laura A. Pierson-Scheinberg and Felice B. Ekelman discuss what employers could or should do, especially since the “renaissance” is less governmental and more groundswell.

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The Year Ahead in Cannabis Use Protections

As courts increasingly enforce applicable state and local laws that make marijuana legal instead of the federal law that makes it illegal, workplace substance abuse policies need a re-look. Jackson Lewis principals Catherine Cano and Kathryn Russo share insights on how the rapidly proliferating laws protecting marijuana and CBD are making marijuana issues for employers more complex.

Employers need proactive strategies and business solutions that reduce workplace law risk. At Jackson Lewis, we don’t just tell you what’s legal — we tell you what’s effective.

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Workplace Training

Employee training should evolve with the workplace. Never a one and done, and hardly one size fits all, you need training programs that keep current with your challenges. Jackson Lewis’ custom, audience-specific content uniquely aligns your current corporate and industry culture with existing legal requirements and emerging rationales across all employment and labor issues.

We offer in-person trainings, simulations, case studies, confidential executive sessions, and online webinars with real-time Q&A in the following areas and more:

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While some commentators liken quiet quitting to age-old workplace slowdowns and work-to-wage or work-to-rule concepts engaged in by some employees and unionized workforces in labor disputes or until their working conditions improved, employers actually have an expanded set of unique possibilities in addressing quiet quitting and related employee job performance and performance management. Especially given hybrid and remote environments, everything from job descriptions, recognition and incentive programs, communications, supervision methods, skill-building paths, and wellness plans are all considerations.

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Giving employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims, this Act enables employees to choose either to arbitrate these claims or pursue them in court regardless of any contractual agreements with their employers. It applies to all claims that arose or accrue after March 3, 2022, regardless of the date of the agreement at issue.

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The 4th Circuit’s recent Henderson v. The Source for Public Data, L.P. decision parses Section 230(c)(1) of the Communications Decency Act (CDA) to further refine accountability issues social media website owners have for the content of the uploaded material. The court held that Section 230 does not apply when an online aggregator is an “information content provider that provided the improper information” and not merely providing a forum for its users to upload information. This opinion will likely have an impact on whether Fair Credit Reporting Act (FCRA) defendants can rely on Section 230, in whole or in part, as a source of immunity from FCRA claims.

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01.31.23 | 10:00 am EST This in-person hearing, which will be livestreamed from the EEOC headquarters in Washington DC and provide a telephone option, includes a panel discussion on the civil rights implications of AI and other automated systems for U.S. employees and job candidates and will explore ways in which these technologies might further the interests of diversity, inclusion, and accessibility. Learn more | Register

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Coming just months after President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the bipartisan Speak Out Act limits the enforcement of predispute nondisclosure and nondisparagement clauses relating to sexual assault and sexual harassment claims. It applies to claims filed on or after December 7, 2002, and does not prevent application of more restrictive state laws(including, for example, California, Illinois, and Washington).

Corporate identity is a function of many things, most of which are in your control. Benefits, DEI, ESG, and more are all better thought of as opportunities rather than obligations.

Your Core Constants

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Online Public Records Aggregators Not Protected from FCRA Suit by Section 230

EEOC to Hold Public Hearing on the Use of Artificial Intelligence

Quiet Quitting and What Employers Can Do About It

President Biden Signs Law Limiting Arbitration Agreements for Sexual Assault, Harassment Claim

Biden Signs Speak Out Act, Barring Predispute NDAs, Nondisparagement Clauses for Sexual Assault, Harassment Claims

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Employers Should Note Post-Midterms State Law Changes

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Drug-free workplace policies, wage and hour obligations, collective bargaining rights, and employee benefit plans providing access to abortion-related treatment were just some of the areas affected by statewide ballot initiatives in the 2022 mid-term elections. The ever-changing patchwork of workplace laws across the country means employers operating in multiple jurisdictions will face greater complexity and have to work harder in order to stay compliant.

How Companies Can Best Benefit from Employee Resource Groups (ERGs)

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Should we create employee resource groups? How do we make ERGs most effective? Despite being the two most common questions companies ask when seeking to enhance their diversity, equity, and inclusion efforts, the answers are anything but cookie-cutter.

Wage and Hour Developments: 2022 in Review

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From macro proposals on independent contractor status to micro tweaks in minimum wage tiers (29 states had minimum wage increases go into effect January 1, 2023), and every intensity in between, changes in wage and hour policy are coming and creating challenges for employers in 2023. This review highlights the federal legislation, U.S. Supreme Court and federal court cases, DOL agency developments and key updates from the 19 states that enacted laws affecting the employment relationship.

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Vermont Governor Announces Family and Medical Leave Insurance Plan

Vermont will join its neighboring state New Hampshire in implementing a voluntary paid family and medical leave insurance program.

U.S. Supreme Court Hears Oral Argument in Case Testing Limits of State Anti-Discrimination Law

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Connecticut’s New ‘Clean Slate’ Law

The law, effective January 1, 2023, alters employers’ abilities to discover, consider, or make decisions based on an applicant or employee’s criminal history. It also expands protections for individuals whose records have been erased and will broadly expand the types of criminal convictions that will be erased or subject to erasure.

New York City Automated Employment Decision Tools Law Postponed to April 15, 2023

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New York State Governor Signs Statewide Pay Transparency Law

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Quiet Quitting and What Employers Can Do About It

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Biden Signs Speak Out Act, Barring Predispute NDAs, Nondisparagement Clauses for Sexual Assault, Harassment Claims

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President Biden Signs Law Limiting Arbitration Agreements for Sexual Assault, Harassment Claims

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