Whether you need information about a specific US visa type, or are looking for a high-level overview of employer obligations related to the movement of foreign nationals under US immigration and employment law, this handbook covers a wide range of topics and serves as a go-to, desk-side guide for US employers.
The publication is available
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.
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).Continue Reading Navigating The Intersection Of Remote Work And State-Specific Post-Termination Non-Compete Laws
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.
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.
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
Many thanks to our data privacy colleagues for co-authoring this post: Lothar Determann, Helena Engfeldt and Jonathan Tam.
2022 is looking to be an unprecedented year for California companies’ privacy law obligations. The California Privacy Rights Act (CPRA) takes effect on January 1, 2023, with a twelve-month look-back that also applies to the personal data of employees and business contacts. The new California Privacy Protection Agency is preparing regulations that will sit on top of existing rules from the California Attorney General. Meanwhile, the California Legislature is enacting privacy laws even though it has not repealed or streamlined any of the myriad California privacy laws that continue to apply in addition to the California Consumer Privacy Act (CCPA).
On March 1, we held a webinar focused on the employment law implications stemming from these significant changes and covering a handful of critical hot topics (e.g., how to process vaccination information, the treatment of employees of PEOs, and EORs). If you missed it, here are the major highlights you should know!
Continue Reading A Quick Primer On New Privacy Law Obligations For California Employers
With special thanks to Bradford Newman and Mark Goodman.
Baker McKenzie’s Labor & Employment and Litigation lawyers discuss the discovery process in trade secrets cases.
Click here to watch the video.
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.
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
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.
As the COVID-19 Omicron wave recedes and the desire to get back to a pre-pandemic “normal” is stronger than ever, scores of states have either lifted mask mandates or have set a date for lifting them. But what should employers take into account before allowing employees to toss masks aside?
In this Quick Chat video,
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.Continue Reading Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration
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
