New York City employers can breathe a short sigh of relief. On May 12, 2022, New York City Mayor Eric Adams signed a bill into law amending New York City’s pay transparency law (Local Law 32 for 2022, which we previously blogged about here, here, here and here), postponing the
May 12 Hearing Scheduled by Mayor Eric Adams on New York City’s Pay Transparency Law Amendments
New York City employers are one step closer to learning the effective date of New York City’s pay transparency law (Local Law 32 for 2022, the “Salary Disclosure Law”). As we blogged about here, the Salary Disclosure Law will have its original May 15, 2022 effective date postponed to November 1, 2022
New York City’s Pay Transparency Law May Be Postponed to November 1, 2022
New York City’s salary transparency law (Local Law 32 for 2022, the “Salary Disclosure Law,” which we previously blogged about here and here)–originally set to take effect on May 15, 2022–could now take effect November 1, 2022 if a new bill is signed into law by New York City Mayor Eric Adams.
The Only Constant is Change: Recent (and Potential) Changes in State and Federal Non-Compete Legislation
New state and federal limits on post-employment restrictive covenants mean employers must stay on top of more than just vaccination policies or the logistics of office reopenings. The swath of new and on-the-horizon legislation aimed at limiting the enforceability of post-employment non-compete agreements deserves employers’ attention too. Part One of our blog post series on restrictive covenants addressed the intersection of remote work and state non-compete laws. Now, in Part Two, we summarize recent updates to state non-compete laws, pending state legislation that could impact non-competes, and new federal-level activity aimed at limiting non-competes.
State Updates
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Colorado
Colorado recently raised the stakes for violations of its non-compete law. Effective March 1, 2022, under SB 21-271, a person who violates Colorado’s non-compete statute commits a class 2 misdemeanor.
Colorado’s non-compete statute (C.R.S. section 8-2-113) voids agreements that restrict trade, such as non-competition and non-solicitation of customers covenants, unless they fall within a specific statutory exception: (i) a contract for the purchase or sale of a business or its assets; (ii) a contract for protecting trade secrets; (iii) a contract provision recovering education or training expenses associated with an employee who has been with an employer for less than two years; or (iv) a restriction on executive or management personnel or each of their professional staff. As of March 1, 2022, a person who violates this statute commits a class 2 misdemeanor punishable by up to 120 days in jail and / or a fine of up to $750.
Many questions remain about the enforcement of this amendment, such as who will face ultimate liability for the employer (e.g., in-house counsel, HR staff, line managers, etc.). And though there is no indication that the new law is retroactive, Colorado employers were subject to criminal penalties for a violation of Colorado’s non-compete law even prior to SB 21-271 being passed, under C.R.S. section 8-2-115. SB 21-271 repealed C.R.S. section 8-2-115 while simultaneously inserting language into the non-compete statute itself making a violation a class 2 misdemeanor. It remains to be seen whether this is simple statutory consolidation, or a signal that Colorado plans to increase enforcement of violations of its non-compete statute. Employers should review their non-compete agreements and internal policies regarding which employees are required to sign such agreements to make sure they are in compliance with this new law.
More Transparency on Pay Transparency for New York City Employers
Last week, New York City employers received more clarification on New York City’s new salary disclosure law (Local Law 32 for 2022, the “Salary Disclosure Law,” which we previously blogged about here). The New York City Commission on Human Rights (NYCCHR) released a Fact Sheet providing more details on employers’ obligations under
Navigating The Intersection Of Remote Work And State-Specific Post-Termination Non-Compete Laws
The writing is on the wall: remote work is here to stay. According to data collected by Ladders, three million professional jobs in the US went permanently remote in the fourth quarter 2021 alone. By the end of 2021, 18 percent of all professional jobs in the US were remote. Ladders projects that number will be close to 25 percent by the end of 2022. Of course, this leaves employment lawyers and HR professionals wondering — what employment laws apply to our distributed workforce?
One particularly thorny issue facing employers in this context is the permissibility of post-termination non-competition agreements. Non-compete laws and their requirements differ greatly from state to state. For example, in Illinois, one of the requirements is that the employee must earn at least $75,000 annually in order to enter into an enforceable post-termination non-compete, but in Oregon, that minimum annual income threshold increases to $100,533 — and that same employee would be subject to no income threshold if Missouri law applied. On the other hand, in Colorado, where post-termination non-competes are generally unlawful, the employer could soon face misdemeanor criminal liability for seeking to enforce an unlawful post-termination non-compete against any employee, and in California, the employer could be exposed to compensatory and punitive damages if a claim is accompanied by other deemed tortious conduct (e.g., interference with the employee’s future employment prospects by seeking to enforce the unlawful agreement).
In this post, we analyze how remote work further muddles the already complicated landscape of post-termination non-competes and how employers can best navigate this complex backdrop.
What law applies? Guidance from recent case law
One issue arising out of remote work is knowing what state’s law will apply when it comes to the enforceability of non-compete restrictions. With remote work, long gone are the days where an employer can be relatively certain that the state where an employee is located at the beginning of the employment relationship will be the same state that employee is living and working in at the end of the employment relationship. As a result, when the need to enforce non-compete restrictions arises, the parties may dispute what state’s law should apply to the non-compete (e.g., the state where the employee was located when they entered into the contract, the state where the employee began work for the employer, or the state whether the employee was living or working at the end of the employment relationship).
Biden Signs #MeToo Bill Allowing Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration
On March 3, President Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” H.R. 4445, into law. The landmark legislation allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. To understand the implications of the new law, click here.
Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration
President Biden is expected to sign into law landmark #MeToo legislation, which allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” amends the Federal Arbitration Act (FAA), by narrowing its scope and applicability. The bill’s passage had bipartisan support in both the House and the Senate.
Historically, some employers have implemented arbitration programs that require both the employer and its employees to arbitrate most or all types of employment claims, including claims alleging sexual harassment or sexual assault. Largely in response to the #MeToo movement, which began in late 2017, some states passed laws designed to prohibit or restrict employers from requiring employees to arbitrate sexual harassment or sexual assault claims. For example, in New York, employers are prohibited from requiring the arbitration of sexual harassment claims except where inconsistent with federal law. New York’s prohibition on mandatory arbitration in relation to sexual harassment claims went into effect on July 11, 2018, and it has applied to contracts entered into on or after that date. New Jersey and California have enacted similar laws. New Jersey’s law prohibits any provision of an arbitration agreement that waives a substantive or procedural right or remedy relating to employment discrimination, harassment, and retaliation claims. This law applies to all contracts and agreements entered into, renewed, modified, or amended on or after March 18, 2019. Further, on October 10, 2019, California enacted a law, which prohibits employers from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code. California’s law applies only to agreements dated January 1, 2020 or after. However, courts have found these statutes to be pre-empted by the FAA.
On February 7, 2022, the U.S. House of Representatives overwhelmingly passed H.R. 4445, 335 to 97. Shortly thereafter, on February 10, 2022, the bill passed the Senate in an unrecorded voice vote.
New York’s New Electronic Monitoring Disclosure Law Requires Action Before May
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
NYC Mandates the Jab for Private Employers | What Employers Need to Know About the Detailed Guidance Unveiled December 15
On December 15, New York City released guidance on the new private sector COVID-19 vaccine mandate set to take effect on December 27. The new order is the strictest in that nation and comes amid omicron’s emergence, delta’s severity and the holiday season. Below, we provide answers to the key questions NYC employers may have to ensure compliance with the mandate.
Which NYC employers are covered by the mandate?
The mandate applies to any non-governmental entity that employs more than one person in NYC or maintains or operates a workplace in NYC (a Covered Entity), regardless of its industry. “Workplace” is defined as any place where work is performed in the presence of another worker or a member of the public, including vehicles. Self-employed individuals and sole proprietors are not covered by the mandate unless they work at a NYC workplace or interact in person with other workers or members of the public as part of their job duties.
What workers are covered?
Employers must collect proof of vaccination from all full- or part-time employees, interns, volunteers, or contractors. The mandate includes exemptions for those who:
- Work remotely full-time
- Only enter the workplace for a quick and limited purpose,
- Are performing artists or athletes who are not required to be vaccinated per the Key to NYC program, or
- Are granted a reasonable accommodation based on their religion or medical condition.
Purposes characterized as “quick and limited” include using the bathroom, making a delivery, or receiving an assignment before leaving to begin a solitary assignment.