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Caroline Burnett

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Caroline Burnett is a Knowledge Lawyer in Baker McKenzie’s North America Employment & Compensation Group. Caroline is passionate about analyzing trends in US and global employment law and developing innovative solutions to help multinationals stay ahead of the curve. Prior to joining Baker McKenzie in 2016, she had a broad employment law practice at a full-service, national firm. Caroline holds a J.D. from the University of San Francisco School of Law (2008) and a B.A. from Brown University (2002).

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As the Omicron wave recedes, a raft of states have announced plans to lift their mask mandates.

In the past few days alone, California, Connecticut, Delaware, Illinois, Massachusetts, Nevada, New Jersey, New York, Oregon, and Rhode Island have announced changes to their face covering rules. And if the number of Omicron cases continues to dwindle…

Beyond chocolate and conversation hearts, many employers are looking to seriously woo employees this Valentine’s Day, and throughout the year. In fact, for most companies, retaining and attracting the best talent in today’s fierce labor market is a top priority in 2022.

The Great Resignation (aka the “Big Quit”) is in full effect. According to a Bureau of Labor Statistics (BLS) report released January 4, 2022, a record 4.5 million Americans left their jobs in November, with the number of private sector quits (not government or farm employees) hitting 4.3 million-and approximately 20 million people quit their jobs in the second half of 2021. And, there are just 0.62 unemployed job seekers for each available job, according to another BLS report. The forecast: employees are likely to continue to have substantial bargaining power in 2022. So employers who want to hold onto the great employees they have-and perhaps take their shot at hiring more- may need to look for creative ways to up the ante this year.

Here are five things employers are doing to retain and hire the best of the best talent in 2022.

  1. Embracing remote work–because it allows for the flexibility some employees are demanding

Remote work was indispensable for many in the early pandemic. Now, having the option to work remotely-at least some of the time-is becoming an expectation. According to a survey of 209,000 people in 190 countries by BCG, 89% of people expect their jobs to be partly remote after the pandemic ends. Hybrid work is now a norm for many employers as they pivot to navigate the ebb and flow of COVID variants, allowing for the flexibility required by the pandemic and meeting employee desires. According to Forbes, in a recent survey of US workers who can work remotely, 74% would prefer to spend at least one day in an office environment post-COVID-19, with 30% looking to work from a space outside the home two or three days per week. Digital nomad visas-which allow employees to work in a different country after an application and a fee-are another lure for some employees who can successfully work away from the office.

What does this mean for employers? In industries and for positions where working remotely is a viable option, employers who don’t offer employees the ability to work remotely-at least part of the week-may see employees jump ship to employers who do. In one report published by Owl Labs, companies that provide the option for remote work have 25% lower turnover than companies that don’t.

But remote work isn’t as easy as just telling employees they can work from home-or wherever they want.

Employers must consider a myriad of employment law issues before crafting any type of remote work policy, including:

  • How employers will define “remote” for their workforce–i.e. temporary “short stints,” permanent remote work, hybrid work (working some days from home and others in the office), or some combination of these. And, employers must decide whether employees will be permitted to work remotely only from home, or remotely from anywhere.
  • “Guardrails” or boundaries for the workforce. Often, this is based on factors such as whether the company already has a legal presence in the subject jurisdiction and ensuring employees can remain subject to company rules and expectations in the jurisdiction from which the employee is requesting to remotely work. Other factors, such as head count triggers for application of paid sick leave laws, must also be taken into consideration.
  • Designing an application process with established criteria. Where used, an application process should cover details such as which job positions can be performed remotely, eligible locations, whether a justification is required, and the objective criteria for accepting / rejecting applications. Decision-makers must be trained on applying the criteria objectively.
  • Developing policies to support the remote model, including salary/cost of living adjustments, how necessary equipment will be provided and whether certain costs will be reimbursed, how the company will track hours/overtime/mandatory rest breaks, necessary steps to mitigate increased risks of misappropriation of confidential information and trade secrets, and revising the business travel policy as necessary to apply to remote workers.
  • Providing employees with individualized remote work agreements, setting forth important information such as the effective date of the arrangement, expected hours of work, use of equipment, reimbursement/stipends, insurance requirements, and compensation. Agreements should also confirm the work location (to document the employee’s representation of the jurisdiction in which they are working and paying taxes) and protect the company’s right to recall employees to an onsite location.
  • Training managers and supervisors on the importance of treating all employees equally, whether they are in the office daily with substantial “face time,” or almost never in the office with only remote meeting “face time,” to avoid discrimination claims.

However employers decide, any type of remote work program raises a plethora of compliance issues-including employment law as mentioned above, as well as benefits and compensation, tax, privacy, and corporate law issues-all of which change from jurisdiction to jurisdiction. As employers design and implement remote work programs, they should work with counsel to stay compliant.Continue Reading This Valentine’s Day Embrace 5 Strategies to Show Employees Some Love in a Competitive Talent Market

On February 9, California Governor Gavin Newsom signed legislation (Senate Bill 114) providing up to two additional weeks of paid time off if an employee is sick with COVID-19, or if they have to take care of a family member who contracts the disease. The law takes effect immediately and is retroactive to January 1, 2022, but an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) does not begin until 10 days after the governor signs: February 19, 2022. Leave is available through September 30, 2022.

The law is similar to legislation that expired in September last year.

What kinds of employers are covered?

Small businesses are exempt. The new law only applies to businesses with 26 employees or more.

Who are covered employees?

Covered employees are those unable to work or telework due to certain reasons related to COVID-19, including:Continue Reading California Revives Supplemental Paid Sick Leave Creating Immediate Obligations for Employers | Everything You Need to Know

Wary of wage and hour class actions, many employers have been grappling with whether and how to compensate employees for activities related to COVID-19. After nearly two years of guessing, on January 20, 2022, the US Department of Labor (DOL) posted Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA),” on its website. The next day, and with no explanation, Fact Sheet #84 disappeared.

Before it disappeared, Fact Sheet #84 addressed the compensability of time spent undergoing those COVID-19 activities with reference to the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS). Given that the OSHA ETS had been stayed just a week earlier by the US Supreme Court and then was subsequently withdrawn by OSHA on January 26, Fact Sheet #84’s sudden disappearance is perhaps not surprising. Nevertheless, employers should keep their eyes peeled for an updated Fact Sheet #84 that addresses compensability of testing and vaccination time without references to the OSHA ETS, especially since the advice in the now withdrawn Fact Sheet #84 is in line with other prior DOL advice on compensable time for employer-required testing and medical procedures under the FLSA.

What Fact Sheet #84 Said Before It Was Withdrawn

The guidance in Fact Sheet #84 distinguished between testing and vaccination that occurs during regular work hours and after regular hours:

Activities that occur during normal working hours

  • Under the FLSA, employer-required activities during normal working hours are compensable, unless the activity falls within one of the exceptions stated in 29 C.F.R. Part 785 (e.g., bona fide meal breaks and off-duty time).
  • Employees must be paid for time they spend going to, waiting for, and receiving medical attention required by the employer or on the employer’s premises during normal working hours-including COVID-19 related medical attention. Therefore, if an employer requires an employee to engage in COVID-19 activities (such as receiving a COVID-19 vaccine dose, taking a COVID-19 test, or undergoing a COVID-19 health screening or temperature check) during the employee’s normal working hours, the time is compensable time-regardless of where the activity occurs.

Continue Reading Compensability of COVID-related Activities | The DOL May Have Weighed In to Help Employers Avoid Class Actions

With special thanks to our data privacy colleagues Jonathan Tam and Helena Engfeldt for their contributions.

It’s increasingly common for employers to use social media during the hiring process. The temptation is obvious — there’s a wealth of potentially useful information about applicants available online. It’s not unreasonable to wish to use social media to understand a prospective employee’s professional qualifications and skills to determine whether they fit with the criteria for the position. It’s no wonder that a recent survey from The Harris Poll finds that seventy-one percent of US hiring decision-makers agree that looking at candidates’ social media profiles is an effective way to screen applicants. Furthermore, 70% believe employers should screen all applicants’ social media profiles, while the majority (67%) say they use social networking sites to research potential job candidates.

Despite the potential benefits, this sleuthing causes significant heart burn for employment and privacy lawyers and HR professionals. While social media can be a fruitful way to find and recruit candidates, a minefield of legal risks appear when companies use social media during the screening process.

Potential Risks

  • Discrimination! Federal, state and local anti-discrimination laws prohibit discrimination in hiring based on a prospective employee’s protected class. The danger of researching applicants using social media is that you may become aware that the applicant belongs to a protected category – something that through the general application process you otherwise would be unaware of. And, you can’t put the genie back in the bottle. If a recruiter or hiring manager has accessed this data, it is difficult to prove that they were not influenced by it in their hiring decision.

Continue Reading Guardrails For Using Social Media During The Hiring Process

Special thanks to Guest Contributor Harry Valetk.

In early May, private sector employers in New York will face new disclosure requirements for electronic monitoring of employees.  Beginning May 7, 2022, New York will join Connecticut and Delaware among the states that now require employers to provide written notice to new hires who are subject to electronic monitoring.  These new disclosure requirements come after Governor Kathy Hochul signed into law amendments to Civil Rights Chapter 6, Article 5, Section 52-C*2.

Here’s what New York employers need to know now about the new law:

Who is covered under the law? All private employers with a place of business in New York regardless of size. “Employer” is defined as any individual, corporation, partnership, firm, or association with a place of business in the state (not including the state or any political subdivision of the state).

What does the law require?  In practice, the law requires employers to (1) provide employees with a notice of electronic monitoring, (2) obtain proof of acknowledgement, and (3) prominently post the notice for all to see.Continue Reading New York’s New Electronic Monitoring Disclosure Law Requires Action Before May

As we previously reported, at the end of last year, the New York city council passed a bill to require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York…

On January 13, 2022, the Supreme Court issued two opinions in which the Court (1) blocked enforcement of the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (OSHA ETS) and (2) allowed enforcement of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for healthcare workers at Medicare and Medicaid covered facilities.

While the federal contractor vaccination mandate (Contractor Mandate) was not the subject of those cases, the Supreme Court’s decisions hint at its future–and it’s grim.

The Contractor Mandate is Currently Stayed

The Contractor Mandate is currently stayed by multiple district courts. And the 6th Circuit and the 11th Circuit have both declined to lift those stays. There are two more appeals pending in the 5th and 8th Circuits. Resolution of these cases will take months. In the meantime, the federal government cannot enforce the Contractor Mandate. Therefore, the likeliest option is that the Supreme Court simply lets the various Contractor Mandate cases run their course.

However, there’s always a chance the Supreme Court decides to intervene and hear appeals on the stays – as it did with the OSHA ETS and CMS vaccine mandate. If this happens, the Contractor Mandate is in trouble. Here’s why.

The OSHA Opinion (NFIB v. OSHA): OSHA Is Not Authorized to Regulate Public Health

First, an overview of the Supreme Court’s OSHA opinion. On January 13, 2022, the conservative majority of Supreme Court ruled that the parties challenging the ETS are likely to succeed on the merits of their claim that OSHA lacked statutory authority to impose the ETS. The majority held that while OSHA is empowered by statute to regulate workplace safety standards and occupational hazards, it has not been authorized to regulate “public health standards” and “the hazards of daily life” more broadly.

The Court acknowledged that the pandemic is a risk that occurs in many workplaces, but distinguished COVID-19 from the typical occupational hazard because it has spread everywhere “that people gather.” The Court characterized COVID-19 as a “kind of universal risk” that is no different from the “day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.” The Court concluded that permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while working would significantly expand OSHA’s regulatory purview.

The Court said that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” After reviewing the statutory text, the Court found that the Occupational Safety and Health Act (OSH Act) does not clearly authorize OSHA to regulate public health through the ETS. The Court further noted that OSHA has “never before adopted a broad public health regulation…addressing a threat that is untethered…from the workplace.” Put simply, the Court decided that the ETS is not “what the agency was built for.”Continue Reading What Does the Supreme Court’s Stay of the OSHA ETS Mean for the Federal Contractor Vaccine Mandate? Don’t Count On It Surviving Judicial Review.

California has always kept employers on their toes when it comes to changing employment laws. This year is no exception. Here is our roundup of the top 10 developments California employers need to know. (And scroll down to see what’s on the horizon!)

  1. Minimum Wage Increases

Effective January 1, 2022, the California state minimum wage increased to $15.00 per hour ($14.00 per hour for employers with 25 or fewer employees). As a result, the minimum monthly salary for California exempt employees increased to $5,200, or $62,400 on an annual basis (which is two times the state minimum wage for full-time employment).

For computer software employees, their minimum hourly rate of pay increased to $50.00 and the minimum monthly salary increased to $8,679.16 ($104,149.81 annually).  And for licensed physicians and surgeons, the minimum hourly rate of pay increased to $91.07 .

Some counties and cities have imposed their own higher minimum wage rates, including Los Angeles, where a $15 minimum wage for all employers took effect in July 2021. The following local minimum wages took effect on January 1, 2022, regardless of employer size:Continue Reading Top 10 California Employment Law Updates for 2022

On December 15, 2021, the New York City Council approved a bill that will require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York City. The Mayor has until January…