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Studies show that as many as 98% of CEOs are anticipating a global recession in the next 12-18 months, which means that companies have already started focusing on cutting costs and redistributing resources to best position themselves to survive. One of the largest cost centers on any company’s balance sheet is its workforce. As such, layoffs or other reductions-in-force (RIF) have already started to hit, and will likely continue. What’s different this time around? Because of the ups and downs in the market, and phenomena like the “great resignation” and remote work on a scale never seen before, there is a greater likelihood that more employers will find themselves potentially triggering the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) (and analogous state laws, known as state “mini-WARN acts”) statutes. These statutes impose notice and information obligations, which can be tricky to keep track of, and carry potentially heavy penalties for noncompliance.

What to do?  Employers who see a layoff on the horizon — and even those who may have already undertaken layoffs — should revisit the requirements of WARN (and state mini-WARNs) now, and keep the following “WARN-ings” and practice tips in mind as they work with counsel.

What is WARN and what WARN-ings should companies watch out for?

In short, WARN requires employers to give advanced notice to affected employees in the event of a covered mass layoff or plant closing. Under the federal WARN, employers must provide 60 days’ notice of termination to the impacted employees, union representatives (if applicable), and certain government authorities. Under some state mini-WARN acts, 90 days’ notice is required.

Which employers are covered?

Under the federal WARN Act, covered employers are employers with:

  • 100 or more employees, excluding part-time employees and those with less than 6 months of service in the last 12 months, or
  • 100 or more employees, including part-time employees, who collectively work more than 4,000 hours per week, excluding overtime.

WARN-ing: State mini-WARN acts often have lower thresholds for covered employers.

When is notice required?

Under WARN, covered employers need to provide notice if a triggering event–a “mass layoff” or “plant closing”–occurs.

Mass layoff: A mass layoff is a reduction in force that (i) does not result from a plant closing, and (ii) results in an employment loss at the single site of employment during any 30-day period for:

  • at least 50-499 covered employees if they represent at least 33% of the total active workforce, or
  • 500 or more covered employees.

Plant closing: A plant closing is the permanent or temporary shutdown of a single place of employment or one or more facilities/operating units resulting in an employment loss during a 30-day period for 50 or more covered employees.

How should employers calculate the time frame to determine when WARN notice is required?

WARN always requires aggregating the employment losses that occur over a 30-day period.

WARN also requires aggregation of the employment losses that occur over a 90-day period that did not, on their own, trigger WARN notice, unless the employer can show that the layoffs were the result of separate and distinct causes and are not an attempt to evade WARN.

WARN-ing: Therefore, employers should look ahead and behind 90 days and add up layoffs that have occurred and any planned layoffs to determine whether separate layoffs may trigger notice requirements under WARN.

Continue Reading Employer WARN-ing: Layoffs Could Trigger WARN Notice Requirements this Time Around

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As we wind up 2022 and head into 2023, all eyes are on salary and pay range requirements in job postings. Where these laws apply, what they require, and when they go into effect has been top-of-mind for US employers in 2022.

Here’s what employers need to know now as they navigate the patchwork of existing laws and prepare for 2023.

Checklist of states, counties and municipalities requiring salary and pay range disclosures in job postings

  • California is the latest state to require employers to include pay ranges in job postings. (See our blog, here.) California’s newly enacted pay reporting legislation joins the nationwide push for pay transparency in employment and requires California employers with 15 or more employees to include the salary or hourly wage range of positions in job postings (but not bonus, incentive compensation or benefit information). The California law also requires employers with 100 or more employees to provide additional detail in annual pay data reports already mandated under California law effective May 10, 2023. The California law takes effect on January 1, 2023.
  • Colorado requires employers to disclose the pay, or pay range, of a position in the job posting itself, along with a description of incentive compensation (such as bonus, commissions, etc.) and benefits. The compensation posting requirements do not apply to either (1) jobs to be performed entirely outside Colorado, or (2) postings made entirely outside Colorado (i.e., newspaper job postings). The Colorado law took effect January 1, 2021. (For more, see our blog here.)
  • New York State’s legislation is still pending. The proposed legislation will require salary range disclosures in job postings (see our blog here). Business groups have urged Governor Hochul to tweak the bill before signing it to preempt local pay transparency ordinances (with the exception of New York City’s ordinance) to avoid the patchwork of pay equity laws around the state. If the governor signs the bill, it will take effect 270 days after signature.
  • Washington’s amendment to its Equal Pay and Opportunity Act (see our blog, here) will require disclosure of wage, salary and benefit information in job postings. However, it leaves unchanged a prior requirement that employers provide the same information to employees offered new positions or promotions within the company only when requested. The Washington amendments will go into effect on January 1, 2023.
  • New York City’s salary disclosure law and amendment (see our blog here) requires employers to provide the minimum and maximum salary range (but not bonus, incentive compensation or benefit information) that the employer in good faith believes at the time of posting it would pay for an advertised job, promotion or transfer opportunity for any position located within New York City (or that can be performed in New York City in the case of remote roles). As long as the employer has four or more employees with at least one working in New York City, the law applies. The New York City law became effective on November 1, 2022.
  • Westchester County, New York passed its own pay transparency law which requires employers to include the minimum and maximum salaries for jobs that can or will be performed in Westchester County (in whole or in part) in job advertisements, including for remote positions. However, employers are not required to include salary ranges in job postings only generally indicating an employer is accepting applications without referencing particular positions. The Westchester County law became effective on November 6, 2022.
  • Ithaca, New York enacted a law making it an unlawful discriminatory practice for an employment agency, employer, employee or agent to advertise an opportunity for employment-including a job, promotion or transfer opportunity-without stating the minimum and maximum hourly or salary compensation for the position in the advertisement. The law applies to employers with four or more employees and applies to all positions for which the standard work location is in the City of Ithaca. The Ithaca law became effective on September 1, 2022. (For more, see City of Ithaca Pay Transparency Law FAQs).
  • Jersey City, New Jersey’s pay transparency law applies to employers employing five or more employees with a principal place of business in Jersey City. The law requires employers who provide notice of employment opportunities in print or digital media circulating within Jersey City to include a minimum and maximum “good faith” salary or wage range (including benefits) in job advertisements in the City. The Jersey City law became effective on June 15, 2022.

On the horizon

We expect other jurisdictions to follow suit in requiring salary and pay range disclosures in job postings. Legislation was introduced (but did not advance) in legislative sessions in several jurisdictions earlier this year–and could see light of day in 2023. For instance, US House Bill 6850 was introduced early in 2022, and would have required employers to disclose wage or salary ranges and other forms of compensation reasonably expected to be offered in external or internal job postings. Kentucky and Massachusetts also both introduced legislation requiring pay ranges in job postings in their last legislative sessions. In addition, several states already require the disclosure of such information to applicants and/or employees upon request, and other states may follow suit.

Quick guide of additional steps employers should take now to prepare for this trend

As this trend continues, employers should consult with counsel and:

  • Determine which jurisdictions have salary and pay range disclosure laws affecting their company’s job postings–and whether they have to include pay ranges in postings for positions outside of those jurisdictions, including remote positions,
  • Determine what pay range information is required to be included in job postings,
  • Implement best practices for choosing pay ranges for posting, and
  • Plan how to communicate any changes to their workforce.

For help with strategies to address the varying requirements across jurisdictions or any of your other employment needs, contact your Baker McKenzie employment attorney.

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Special thanks to Tony Haque and Hanna Jung.

In our latest Global Immigration and Mobility Video chat, our attorneys discuss the challenges of employee travel during the upcoming holiday season, with a focus on the United Kingdom, Australia, and the wider Asia Pacific region. The 15-minute video covers immigration complications from the state of COVID restrictions, visa appointment backlogs, and the complexity of international remote working.

Click here to watch the video.

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Studies are showing that around 98% of CEOs in the US and across the EU are preparing for a recession in the next 12-18 months.

With inflation increasing the cost of goods and certain services, some companies may find themselves in an immediate economic bind and needing to engage in cost-cutting methods to reorganize and redeploy the company’s resources in a smarter way as they prepare for a possible recession.

In this Quick Chat video, our Labor and Employment lawyers discuss cost-cutting options employers are exploring without staffing layoffs, what we’re seeing that’s different from the beginning of the pandemic, and some important considerations employers should keep in mind if they engage in cost-cutting.

Click here to watch the video.

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In less than two months, on January 1, 2023, the California Consumer Privacy Act (CCPA) as revised by the California Privacy Rights Act (CPRA) will take effect fully in the job applicant and employment context.

And with respect to job applicants and personnel, businesses subject to the CCPA will be required to (i) issue further revised privacy notices, (ii) be ready to respond to data subject requests, (iii) have determined if they sell or share for cross context behavioral advertising personal information about them, and (iv) have determined if they use or disclose sensitive personal information about them outside of specific purposes. If employers sell, share for cross-context behavioral advertising, or use or disclose sensitive personal information outside of limited purposes, numerous additional compliance obligations apply. See also our related previous post: Employers Must Prepare Now for New California Employee Privacy Rights.

 

Here are some key recommendations on what employers should do now:

1. Review contracts with parties to whom you disclose personal information about applicants and personnel. The CCPA prescribes certain types of clauses that have to appear in agreements between parties exchanging personal information, and you will have to include certain data processing clauses if you do not want to be considered to be “selling” (which the CCPA defines to mean disclosing in exchange for monetary or valuable consideration) or “sharing” (which the CCPA defines to mean disclosing for the purposes of cross-context behavioral advertising) personal information and offer related opt-out processes. It is not practical for employers to offer opt-out rights in most scenarios, due to the CCPA’s non -discrimination requirements. The CCPA regulations, which are currently being revised by the California Privacy Protection Agency (latest draft as of this publication is available here), include additional requirements. Businesses should continue to update such contracts with parties it discloses personal information to.

2. Prepare/revise notices at collection and include HR data in your online CCPA Privacy Policy. At collection notices in the employment context have been required under the CCPA since 2020, but new specific disclosure requirements apply from January 1, 2023. Your comprehensive online CCPA privacy policy will also have to reflect your processing of HR data. You should consider updating/preparing a privacy notice at collection that is specific to the CCPA and separate from any privacy notice you might use to address privacy laws in other jurisdictions, since California laws establish increasingly unique requirements and use unique terms that may be difficult to reconcile with those of other jurisdictions (from January 1, 2023, businesses must use specific terms from the CCPA to describe categories of personal information in all notices at collection). At the same time, you have to be mindful of setting or negating privacy expectations. If you issue privacy notices to job applicants and personnel that merely address CCPA disclosure requirements, the recipients of such notices may develop privacy expectations that could later hinder you in conducting investigations or deploying monitoring technologies intended to protect data security, co-workers, trade secrets and compliance objectives.

Continue Reading California Privacy Law Action Items for Employers

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We are pleased to share a recent Bloomberg Law article, “Employers Await High Court Clarity on Attorney-Client Privilege,” with contributions by Michael Brewer. This article discusses the possible implications the US Supreme Court’s upcoming review of whether attorney-client privilege extends to business-related communications may have for employers and their counsel, who routinely exchange information blending legal and business advice.

Click here to view the article.

Originally featured in Bloomberg Law.

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Special thanks to Bradford Newman and Stephen Malone, Fox Corporation.

Companies are turning to artificial intelligence (AI) to assist in recruiting and hiring the best talent in this tight labor market. However, there’s substantial corporate oversight in assessing AI threats, while agencies like the Equal Employment Opportunity Commission (EEOC) in the US are closely examining AI for potential bias and other harms.

In this Quick Chat video Paul Evans and Brad Newman welcome Stephen Malone of Fox Corporation to discuss blind spots in using AI in recruitment and hiring, and share to practical tips to help employers alleviate these issues. Join us to continue the discussion in-person at Baker McKenzie’s event, A Conversation with Special Guest Speaker EEOC Commissioner Keith Sonderling, taking place October 27 in Palo Alto.

Click here to watch the video.

Join us for an in-person event with special guest, EEOC Commissioner Keith Sonderling.

Date:
Thursday, October 27, 2022

Venue:
El Prado Hotel, La Terraza Ballroom
Downtown Palo Alto, 520 Cowper Street

Parking:
Complimentary valet parking

Timing:
2:30 pm / Registration
3:00 – 4:00 pm / Interview and Q&A
4:00 – 5:30 pm / Cocktail & Networking Reception

Click here to view the invitation details and to register.

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Effective January 1, 2023, California employers must continue to provide notification to employees of COVID-19 exposure in the workplace through 2023, but will be able to satisfy the notification obligation by displaying a notice in the workplace. On September 29, Governor Gavin Newsom signed AB 2693 into law, revising and extending the existing obligation for employers to notify workers of potential exposure to COVID-19 in the workplace. Here’s what California employers need to know.

Extended sunset date

Although the employer COVID-19 notice requirement was formerly scheduled to expire on January 1, 2023, AB 2693 extends the requirement’s sunset date to January 1, 2024.

Notification can be satisfied through posting

The amendment applies “in each worksite of the employer,” and allows employers to provide the required notification by prominently displaying a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted. The notice must be in English and the language understood by a majority of the employees, and provide:

  • The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within that employee’s infectious period
  • The location of the exposures, including the department, floor, building, or other area (but this information should not be so specific as to allow the infectious individual to be identified)
  • Contact information for employees to receive information regarding COVID-19-related benefits to which they may be entitled under applicable federal, state, or local laws
  • Contact information for employees to receive the cleaning and disinfection plan the employer is implementing under Centers for Disease Control and Prevention and Cal-OSHA COVID-19 Emergency Temporary Standards

If an employer is providing notification through a workplace posting, the notice must be posted within one business day from when the employer learns of the potential exposure and must remain posted for not less than 15 calendar days. And if an employer posts other types of workplace notices on an existing employee portal, the notice must also be posted on the employee portal.

Alternative means of notice

Instead of providing posted notice, employers can revert to prior requirements and provide written notice to all employees, and employers of subcontracted employees, who were on the premises at the same worksite as a confirmed case of COVID-19. As before, this notice must be provided in the manner the employer normally uses to communicate employment-related information (such as personal delivery, email or text message) if it can reasonably be anticipated to be received by the employee within one business day of sending.

Record-keeping

Employers are required to keep a log of all the dates the required notice was posted at each worksite of the employer, and must allow the Labor Commissioner to access these records.

Notice to the exclusive representative

Employers are required to provide a written notice to the exclusive representative, if any, of confirmed cases of COVID-19 and of employees who had close contact with the confirmed cases of COVID-19 within one business day. This notice must contain the same information as would be required in an incident report in a Cal/OSHA Form 300 injury and illness log unless the information is inapplicable or unknown to the employer.

Notification to the public health agencies no longer required

Employers no longer need to notify the local public health agency of a COVID-19 outbreak (as defined by the California Department of Public Health), except in specific circumstances.

Potential Conflict with Proposed Cal/OSHA COVID-19 Non-Emergency Regulation

One wrinkle resulting from AB 2693 is its apparent conflict with Cal/OSHA’s proposed COVID-19 Prevention – Non-Emergency Regulation (“Proposed Cal/OSHA Standard”) which, if adopted, would also take effect on January 1, 2023. Under the Proposed Cal/OSHA Standard, employers who learn of a COVID-19 case at the worksite are required to “notify employees and independent contractors who had a close contact.” Unlike the Proposed Cal/OSHA Standard’s other notification requirements, the employer obligation to notify close contacts does not incorporate Labor Code section 6409.6. In other words, while the new worksite posting option will satisfy employers’ Labor Code section 6409.6 obligation, it remains unclear whether it will also satisfy the Proposed Cal/OSHA Standard’s close contact notification obligation. The California Occupational Safety and Health Standards Board discussed the Proposed Cal/OSHA Standard at its last public hearing on September 15. The Board has not announced whether it will continue those discussions at its upcoming October 20 public hearing.

For help with AB 2693 or any of your other employment needs, contact your Baker McKenzie employment attorney.

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Special thanks to Melissa Allchin and Matthew Gorman.

Federal agencies have renewed their focus on job postings that discriminate against protected groups, even when there is no clear intent to be discriminatory. As evidenced by a significant increase in investigations and fines levied over the past four months, the Department of Justice’s (“DOJ”) Immigrant and Employee Rights Section (“IER”) and the Equal Employment Opportunity Commission (“EEOC”) are actively reviewing external, and often third-party, job postings to determine whether they are unlawfully restrictive.

The Investigations

Compared to a single settlement in all of 2021, the IER has entered into 19 settlements with US employers relating to discriminatory job postings since May 2022. The largest investigation targeted 16 employers who posted job advertisements with unlawful citizenship status restrictions through recruitment platforms used by the Georgia Institute of Technology and other college recruitment platforms. Per the June 2022 DOJ settlements, most of the advertisements restricted job opportunities to US citizens and/or lawful permanent residents. The settlements require the employers to pay civil penalties totaling $832,944, undergo training, and change their recruiting practices.

In a separate settlement in May 2022, the DOJ found that an IT recruitment company improperly emailed job ads with discriminatory preferences for citizenship status that deterred potential candidates from applying as part of a pattern of implementing its clients’ unlawful citizenship or immigration status preferences.

The DOJ’s revived attention on discriminatory job postings is not limited to those expressing a preference for US citizens. In June 2022, the DOJ found that a consulting company’s advertisement was directed only to workers seeking H-1B visa sponsorship. Similarly, in July 2022, DOJ found that a technology company posted job advertisements that deterred asylees, refugees and US nationals from applying, and in at least one instance sought only H-1B visa holders. In both the June and July settlements, the companies were subject to civil fines, required training, and to DOJ monitoring and reporting obligations.

The DOJ is not alone in its enforcement attempts.  In recent years, the EEOC has honed its focus on systemic age discrimination in job postings.  In its 2021 guidance, the EEOC unequivocally stated that job postings seeking candidates with seemingly innocuous traits – such as “recent graduate” and “energetic” – may violate the Age Discrimination in Employment Act (“ADEA”). A July 2022 study by the National Bureau of Economic Research further bolsters the EEOC’s position. The study team created and posted fake job advertisements focused on common age stereotypes: communications skills, physical ability and technology skills. The researchers determined that even when the advertisements lacked obviously discriminatory language, they ultimately discouraged candidates 40 and older from applying.  Examples of such troublesome posts included: “You must be up-to-date with current industry jargon and communicate with a dynamic workforce” and “You must be a digital native and have a background in social media.”

The Law

There are several regulations that prohibit employers from engaging in discriminatory hiring practices, including the ADEA, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act, along with countless state and local laws. 8 USC Section 1324b also prohibits unfair immigration-related employment practices. Specifically, employers are prohibited from discriminating against any individual with respect to “hiring, or recruitment or referral for a fee” due to that individual’s national origin or citizenship status. The individual must be a “protected” person – which includes (i) a citizen or national of the United States, (ii) lawful permanent residents, (iii) refugees and (iv) asylees, with some additional restrictions relating to those who have failed to timely apply for naturalization.

Investigations by the IER and EEOC can be time-consuming and disruptive to a business. Civil penalties  range widely – but can be hefty – depending on the scope of the alleged discriminatory actions. Perhaps of equal importance is the potential reputational harm resulting from an investigation and public announcement of settlement, in addition to required reporting and monitoring from the DOJ.

Employer Takeaways

Given the clear focus and mandate from the DOJ and EEOC regarding discriminatory job postings, employers must take additional care to ensure their job postings do not run afoul of anti-discrimination laws. Critically, this is true not just for the employer’s external website job postings but also those posted by third parties. Employers should consider the following best practices:

  • Conduct a review of current protocols for posting job advertisements on the company website and with external/third-party vendors.
  • Require third-party vendors to provide copies of all job postings for pre-approval before publishing.
  • Ensure those responsible for managing external job postings have undergone anti-discrimination training targeted to avoid incidental discriminatory postings.
  • Except in limited circumstances, never reference citizenship status, immigration status, national origin, age or any other protected category in job postings.
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We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of immigration and mobility alerts from around the world.

Please click here to view.