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Special thanks to co-authors Priscila Kirchhoff* and Tricia Oliveira*.

In July, Brazil passed a new Gender Pay Gap law (effective immediately) that requires companies with more than 100 employees — for the first time — to publish a report on salary transparency and compensation criteria (a ‘Salary Transparency Report’) every six months. The report must be published on company websites and/or on social networks, as well as shared with the Ministry of Labour and Social Security. 

When there is failure to comply, severe sanctions have been introduced. And, in a proven case of wage discrimination due to sex, race, ethnicity, origin or age, in addition to the payment of salary differences, Law 14,611/23 establishes that payment of a fine equal to ten times the new monthly salary must be paid to the individual discriminated against (this is doubled in the case of recurrence).

Click here to continue reading.

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

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Special thanks to co-presenters Ricardo Castro-Garza, Alfonso García-Lozano and Javiera Medina-Reza.

This year our team helped Mexican employers overcome a range of challenges across the employment law landscape — from keeping up with evolving health & safety obligations, defending contentious employment disputes, supporting the legitimization of collective bargaining agreements, and much more.

In this episode of Quick Chats for the Mexican Workplace, we review key labor and employment lessons from 2023 and prepare you for the challenges ahead in 2024. For example, we’ll discuss:

  • Best practices for legitimizing collective bargaining agreements
  • Increases to vacation entitlements
  • Proposed amendments to the Federal Labor Law to reduce the hours in a workweek

Possible changes to laws restricting criminal background checks

This video was recorded on November 29, 2023. With the rapid changes in Labor & Employment law, please be sure to subscribe to The Employer Report blog for the latest updates and stay tuned for our next Quick Chats for the Mexican Workplace episode.

Click here to watch the video.

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On January 1, 2024, businesses must post updated Privacy Policies under the California Consumer Privacy Act (CCPA), which requires annual updates of disclosures and fully applies in the job applicant and employment context since January 1, 2023.

With respect to job applicants and employees, businesses subject to the CCPA are required to:

  1. Issue detailed privacy notices with prescribed disclosures, terminology, and organization;
  2. Respond to data subject requests from employees and job candidates for copies of information about them, correction, and deletion;
  3. Offer opt-out rights regarding disclosures of information to service providers, vendors, or others, except to the extent they implement qualified agreements that contain particularly prescribed clauses; and
  4. Offer opt-out rights regarding the use of sensitive information except to the extent they have determined they use sensitive personal information only within the scope of statutory exceptions.

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. For more: see also our related previous post: Employers Must Prepare Now for New California Employee Privacy Rights.

Key recommendations to heed now

Continue Reading Looking ahead to 2024: California privacy law action items for employers
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It is an unprecedented time for California companies’ privacy law obligations. The California Privacy Rights Act (CPRA) took effect on January 1, 2023 with a twelve-month look-back that also applies to the personal data of employees and business contacts. The California Privacy Protection Agency recently finalized regulations and has kicked off a new phase of rulemaking including on risk assessments, cybersecurity audits, and automated decision-making technology (draft regulations on each of these topics have been published). 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). 

With this virtual seminar series, privacy specialists from Baker McKenzie offices in California want to help prepare you for new and upcoming privacy compliance tasks in various business areas, in collaboration with other practice groups.

California residents are increasingly exercising data subject rights to access, correct and delete personal information. Companies receive requests from consumers, employees, and organizations that claim to act as “authorized agents.”

Join us online on January 11 @ noon pacific to learn more about the CCPA’s requirements and for practical and operational tips on frequently asked questions.

Click here to register.

CLE will be offered.

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We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of key updates from Australia, China, Hong Kong, Italy, Philippines, South Africa, United Kingdom, United States and Vietnam.

Click here to view.

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We’re not even out of 2023, and New York employers who engage independent contractors already have new obligations to reckon with before next spring. On November 22, 2023, New York Governor Kathy Hochul signed the New York State “Freelance Isn’t Free Act”, increasing obligations for parties who engage freelance workers (including independent contractors). Starting May 20, 2024, hiring parties (including employers who engage independent contractors) must provide freelance workers with written contracts, pay them within a specified time period, maintain records, and satisfy additional new obligations—and freelance workers will gain a private right of action for violations.

The Act replicates the 2017 NYC’s Freelance Isn’t Free Law, adding administrative oversight and support from the New York State Department of Labor and the New York State Attorney General while maintaining New York City’s local law. The Act will apply to contracts entered into on or after the May 20, 2024 effective date.

Here are some key details:

Definitions: “freelance workers” and “hiring parties” 

The Act defines a “freelance worker” as “any natural person or organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for an amount equal to or greater than eight hundred dollars”—but does not include certain sales representatives, practicing attorneys, licensed medical professionals, and construction contractors. Also, a “hiring party” is any person (other than government entities) who retains a freelance worker to provide any service.

Written contracts required

The Act requires a written contract if the freelance work is worth at least $800, inclusive of multiple projects over a 120-day period. The hiring party must furnish a copy of the contract, either physically or electronically. At a minimum, the written contract must include:

  1. The name and the mailing address of both the hiring party and the freelance worker;
  2. An itemization of all services to be provided by the freelance worker, the value of the services to be provided under the contract, and the rate and method of compensation;
  3. The date on which the hiring party must pay the contracted compensation (or the mechanism by which the date will be determined); and
  4. The date by which a freelance worker must submit to the hiring party a list of services rendered under the contract to meet the hiring party’s internal processing deadlines to allow compensation to be paid by the agreed-upon date.

The New York State Department of Labor will provide model contracts on its website for freelancers and hiring parties to use.

Continue Reading More Scrutiny and Obligations for NY Businesses Engaging Independent Contractors Coming Spring 2024
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Does your holiday wish list include CLE credit and a quick tutorial on what to expect in California labor and employment law next year?

Excellent!

Join us for our virtual California 2023-2024 Employment Law Update on Wednesday, December 13 @ 1PM PT.

2023 has been a year of dramatic change for California employers, but have no fear as this fast-paced webinar will prepare you for a brighter 2024.

In a 75-minute program, our team will cover:

  • How to protect company trade secrets given the expansion of the state’s restrictions on non-competes under SB 699 and AB 1076
  • Best practices and crucial steps to take to avoid costly wage and hour class actions
  • Practical tips for managing charged speech in the workplace, as well as action items to consider with ID&E programming in the wake of the Supreme Court’s SFFA decision
  • How to implement the new requirements for increased paid sick leave under SB 616
  • Compliance tips for the state’s new leave entitlement for reproductive loss under SB 848
  • How to craft a workplace violence prevention policy that complies with SB 553
  • A quick update on new privacy rules employers need to know
  • What the Labor Code’s new rebuttable presumption of retaliation means for employers and more!

Register here.

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Special thanks to our Baker McKenzie speakers Pamela Church, Teisha Johnson, Cyrus Vance, Elizabeth Roper, Laura Estrada Vasquez, Joshua Wolkoff and Industry Experts, Alexandra Lopez, Privacy Counsel, Calix, Una Kang, VP and Associate General Counsel, Wolters Kluwer, and Pamela Weinstock, Managing Counsel, Intellectual Property, Tiffany & Co.

Join us in person on Tuesday, January 23, 2024 for an exclusive event discussing the transformative power of generative AI and the unfolding regulatory landscape.

In-house counsel in the cloud/software, publishing and luxury and fashion fields at top companies such as Calix, Tiffany & Co. and Wolters Kluwer will share insights on how they are embracing generative AI and its impact on their business operations. We will also examine recent legal and regulatory developments and discuss practical approaches to tackle associated issues.

Panel discussions will cover topics such as:

  • how to navigate both the use of AI and new technology,
  • how to practically tackle regulatory compliance,
  • how to appropriately identify and guard against evolving threat factors and risks,
  • and more!

The program will conclude with a networking cocktail reception in Baker McKenzie’s New York office.

Click here to view the invitation.

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Effective February 6, 2024, all private employers in Texas will be prohibited from imposing or enforcing COVID-19 vaccine mandates as a condition of employment. While the practical impact of this new law may be limited, employers should still take note.

Newly-enacted SB 7 prohibits employers from adopting or enforcing a mandate requiring an employee, contractor, applicant for employment, or applicant for a contract position to be vaccinated against COVID-19 as a condition of employment or a contract position. The new law also prohibits employers from taking adverse actions against employees, contractors, and applicants based on their refusal to be vaccinated against COVID-19. An “adverse action” is defined as “an action taken by an employer that a reasonable person would consider was for the purpose of punishing, alienating, or otherwise adversely affecting an employee, contractor, applicant for employment, or applicant for a contract position.”

Workers may file complaints with the Texas Workforce Commission if they believe they have suffered an adverse action based on their vaccination status. Employers who violate the law face fines of up to $50,000 for each infraction.

Background

Prior to the enactment of SB 7, Texas largely prohibited vaccine mandates through executive orders issued by the Governor. On October 11, 2021, Governor Abbott issued Executive Order GA-40, prohibiting all entities from compelling individuals to receive the COVID-19 vaccine if they object to vaccination for any reason of personal conscience, including a religious belief or medical reason, such as prior recovery from COVID-19.  Prior to that, on August 25, 2021, Governor Abbott issued Executive Order GA-39, prohibiting government entities from compelling individuals to receive the COVID-19 vaccine, state agencies and political subdivisions from adopting any order requiring an individual to provide proof of vaccination status to enter any place or receive any service; and public and private entities that receive public funds from requiring consumers to provide proof of vaccination status to enter any place or receive any service. Even earlier executive orders banned vaccine passports and proof of vaccination to enter, access and receive services from businesses. 

The Final Word

SB 7 looks to put the final nail in the coffin for vaccine mandates in Texas, at least starting next February.

Notably, SB 7 does not carve out exceptions for healthcare settings, but does allow a health care facility, health care provider, or physician to establish and enforce a reasonable policy that includes requiring the use of protective medical equipment by an individual who is an employee or contractor of the facility, provider, or physician and who is not vaccinated against COVID-19 based on the level of risk the individual presents to patients from the individual ’s routine and direct exposure to patients.

To revisit return to workplace plans, please contact your Baker McKenzie attorney.

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Heads up, New York employers. New York recently expanded its #MeToo statute to bar some of the most common terms for which employers bargain in settlement agreements involving claims of discrimination, harassment or retaliation. On November 17, 2023, Governor Hochul signed S4516 into law, amending Section 5-336 of the General Obligations Law (“GOL”) (New York’s #MeToo statute) so that settlement agreements involving claims of discrimination, including discriminatory harassment or retaliation, cannot:  

  • Require the complainant to forfeit any consideration for the agreement if the complainant violates the nondisclosure or nondisparagement clause;
  • Require the complainant to pay liquidated damages if the complainant violates the nondisclosure or nondisparagement clause; or
  • Include or require an affirmative statement, assertion, or disclaimer that the complainant was not subject to unlawful discrimination, including discriminatory harassment or retaliation.

If settlement agreements contain these provisions, the complainant’s release is unenforceable (but the employer may still have an obligation to pay the settlement amount). The new law is effective as of November 17 and applies to all agreements entered on or after that date.

Other changes under S4516 for employers to know

21-day consideration period for complainant’s confidentiality preference can be waived

Under Section 5-336, New York employers are prohibited from including (or requiring to be included) in a settlement agreement any provision requiring nondisclosure of the underlying facts and circumstances of a sexual harassment or other employment discrimination claim, unless the condition of confidentiality was the complainant’s preference. If the complainant prefers confidentiality, certain steps are required (and this is where employers will see a change under S4516).

  • Before S4516, the complainant had to wait 21 days (the “consideration period”) before entering into a confidentiality agreement. If after the consideration period the complainant wished to move forward with confidentiality, the parties were required to enter into a separate agreement that memorialized the complainant’s preference for confidentiality and incorporated the preference into the larger settlement agreement. The complainant had 7 days in which to revoke the confidentiality preference before it became binding.
  • Under S4516, complainants can now waive the 21-day consideration period if they choose–but the requirements of a separate preference agreement and 7-day revocation period remain. Significantly, however, employers should note, for settlement agreements resolving employment discrimination claims in litigation, Section 5003-b of New York Civil Practice Law & Rules (CPLR) still requires a full 21-day review period before an employee signs an agreement containing a provision preventing the disclosure of underlying facts and circumstances of the discrimination claim.

Certain protections extended to independent contractors–and employers must notify complainants of a right to contact the Attorney General

In addition, under the existing provisions of Section 5-336, any provision in an agreement between the employer and employee / potential employee preventing the disclosure of factual information related to any future claim of discrimination is unenforceable unless the provision notifies the employee / potential employee that it does not prohibit the complainant from speaking with law enforcement, the Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights, a local human rights commission, or an attorney employed by the employee / potential employee.

Now, under S4516, these protections apply to independent contractors as well. And employers must now also notify employees, potential employees and independent contractors of their right to speak to the Attorney General (in addition to the parties referenced above).

Takeaways

  • Employers must ensure that any template settlement agreements, agreements in progress or future agreements do not include liquidated damages clauses, forfeiture clauses, or clauses stating that the complainant was not subject to unlawful discrimination, including discriminatory harassment or retaliation. The inclusion of such clauses will now render the release of claims of discrimination, harassment, or retaliation unenforceable–but may not affect the employer’s obligation to pay the settlement amount.
  • Employers should ensure any template agreements used with employees, potential employees and independent contractors preventing the disclosure of factual information related to future claims of discrimination are updated to comply with the changes under S4516 (including notification of the right to speak to the Attorney General).
  • Employers should be careful to differentiate between the 21-day consideration period provided under S4516 for a complainant preferring confidentiality in a release agreement (which can now be waived) and the 21-day consideration period required under Section 5003-b of CPLR for employees resolving employment discrimination claims in litigation or in an administrative proceeding (which cannot).

For any questions related to S4516, please contact your Baker McKenzie attorney.