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Special thanks to presenter Melissa Allchin.

The possibility of putting COVID-19 in our collective rearview mirrors grows every day. But before we declare the pandemic over, our Labor & Employment and Immigration lawyers discuss the key items employers should keep in mind as we head towards the pandemic’s exit, including:

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Special thanks to panelist Nicholas Murray, of Twilio.

Join us for our webinar, “Measure What You Treasure,co-hosted by the ACC Foundation.

The first step in any organization’s strategic approach to advancing inclusion, diversity and equity is ensuring that accurate data exists. But diversity data collection can be challenging. 

Special thanks to presenters Nadege Dallais (Paris), Fermin Guardiola (Madrid), Danielle Pinedo (Amsterdam), Stephen Ratcliffe (London) and Bernhard Trappehl (Munich).

Our four-part Navigating the World webinar series features US moderators welcoming Baker McKenzie colleagues from around the globe as they share the latest labor and employment law updates and trends. In this session, US-based multinational

Join us for a four-part webinar series as our US moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. US-based multinational employers with business operations in Europe, the Americas, the Middle East and Africa, and Asia Pacific regions will hear directly from local

On April 1, a state court judge in Los Angeles ruled that the California law (AB 979) mandating publicly traded companies include people from underrepresented communities on their boards violates the California Constitution. We initially reported on AB 979 here, noting that it was the first law of its kind in the US and was the second time California sought to mandate diversification of public company boards through legislation. In 2018, the first piece of California legislation (SB 826) aimed at increasing gender diversity; in 2020, AB 979 sought to increase diversity from underrepresented communities.

AB 979

The 2020 law requires publicly held corporations headquartered in California to include at least one person on their boards from an underrepresented community by the end of last year, with additional appointments required in future years. People from underrepresented communities are defined as anyone who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian or Alaska Native, or who self-identifies as gay, lesbian, bisexual or transgender.

Under AB 979, the California Secretary of State must report annually on companies’ compliance with the law and may impose fines of $100,000 for an initial violation and $300,000 for each subsequent violation.

Continue Reading California’s Board Diversity Law Struck Down in State Court, But Movement for Inclusion and Diversity on Boards Persists

On March 15, 2022, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new directive putting federal contractors on notice that it will more closely scrutinize their pay equity audits. Making headlines, the directive states that federal contractors are expected to hand over information about their internal pay analyses when being audited by the office, including documents that are protected by the attorney-client privilege and/or work product doctrine.

Background

Executive Order 11246 requires affirmative action and prohibits federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others.

As part of their affirmative action obligations, supply and service contractors are required to perform an in-depth analysis of their total employment practices to determine whether and where impediments to equal employment opportunity exist. This includes conducting an in-depth analysis of their compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, as provided in 41 CFR 60-2.17(b)(3).3.

To comply with the regulations, most companies doing business with the federal government  conduct an evaluation of their pay practices for potential gender, race, or ethnicity-based disparities.  Oftentimes, these analyses are performed with the help of outside counsel who provides legal advice regarding, among other things, compliance with the requirements enforced by OFCCP. And, until now, these pay audits have been considered privileged and confidential.

Impact of the new directive

During a compliance evaluation, a supply and service contractor is required to provide OFCCP with compensation data. In addition to requesting additional compensation data, interviews, and employment records, the OFCCP is now making explicit that it may also seek the contractor’s evaluation under § 60-2.17(b)(3), which the OFCCP calls the “pay equity audit.”

Continue Reading OFCCP Emboldened To Demand Contractors’ Internal Pay Analyses

Employee Resource Groups (ERGs), or workplace affinity groups, are not new, and in fact they have been around in workplaces since the 1970s when they evolved in response to racial tensions in the US. For years, ERGs mainly hosted networking events and weren’t typically remarkably impactful on the business, but served as a safe space and support network for members. ERGs have come a long way since then, expanding and deepening their influence and impact.

Now, ERGs are typically employee-led, voluntary forums that provide employees with support, and career development, mentorship and networking opportunities. They are often created around shared characteristics or personal traits like ERGs for women employees, members of historically underrepresented racial/ethnic groups, LGBTQ+ employees, veteran employees and more. In recent years, ERGs have expanded to include interest-based groups like working parents and caregivers, the environmentally conscious and mental health advocates. Further, business leaders increasingly recognizing the value ERGs can bring as key strategic partners. In fact, about 35% of companies have added or expanded their support for ERGs since the start of 2020, according to a 2021 study by McKinsey & Co. and LeanIn.org of 423 organizations employing 12 million people.

Why the shift?

This uptick in popularity of ERGs in the workplace is due in large part to the impact of COVID-19, which has amplified the prominence and importance of ERGs. After two years of pandemic-related isolation and a lot of social and political unrest, ERGs are playing an essential role in companies by fostering community, improving employee engagement and building company culture and brand. While it can be difficult to connect with employees feeling distanced by remote work, ERGs are an effective way to give employees a sense of belonging, shared purpose and support. For instance, during the pandemic, ERGs focused on women have shared tools for easing burdens for members suddenly facing new challenges of child-care demands while working from home. Likewise, they’ve given important feedback to help shape company policies and benefits.

Continue Reading DEI Matters: How Employee Resource Groups Can be Your Company’s Strategic Ally

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 workbecause 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