Listen to this post

From the groundbreaking mandate for paid prenatal leave to the upcoming requirement that employers disclose AI-related layoffs, 2025 is set to be a transformative year for New York employers. As you navigate the latest employment laws, keep this checklist close at hand. While it doesn’t cover every new regulation, it highlights the key changes our clients need to know to stay ahead of the curve this year.

 Key New York ChangeEmployer To-Dos
(1)Paid Prenatal Leave Now Required | Effective Jan. 1, 2025, private New York employers must provide employees with 20 hours of paid prenatal personal leave (PPPL) during any 52‑week calendar period in addition to paid sick and safe leave (PSSL). New York is the first state in the US to require employers to provide such leave.

PPPL is leave taken for health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.
Importantly, eligible employees can take all 20 hours of PPPL they are entitled to for the 52-week period starting the effective date of the new law–without waiting for PPPL to accrue.

For more details on the law’s requirements, see our previous blog here.		Update policies and practices to comply with the new requirements.

Modify handbooks as necessary, and train HR and managers / supervisors on the law’s requirements.

Review the New York State Department of Labor’s (NYSDOL) guidance on the law, including the FAQs and Employer Fact Sheet.  
(2)Minimum Wage Hike | Effective Jan. 1, 2025, the hourly minimum wage for workers (with the exception of tipped hospitality service workers and food service workers) increased to $16.50 in New York City, Westchester County and on Long Island (up from $16.00), and in the rest of the state the minimum wage increased to $15.50 (up from $15.00).

The minimum wage will increase again on Jan. 1, 2026 to $17.00 for New York City, Long Island and Westchester, and $16.00 for the rest of the state.

Beginning Jan. 1, 2027, minimum wage increases will be tied to the three-year average of the regional consumer price index–meaning economic conditions could prevent a minimum wage rate increase for a particular year. If the NYSDOL determines a rate increase is appropriate, it will post the adjusted rate no later than Oct. 1 of the year prior to the planned increase to allow employers adequate time to prepare.		Confirm with HR, payroll, and accounting that all wage rates comply with the law.

Post the required updated Minimum Wage Poster (available on the NYSDOL website here) in a visible location for employees.
(3)Increase in Overtime Exempt Salary Thresholds | The minimum salary threshold increased for the executive and administrative exemptions from overtime pay.

Effective Jan. 1, 2025, the salary threshold is $1,237.50/week ($64,350 annually) in New York City, Westchester County and on Long Island, and
$1,161.65/week ($60,405.80 annually) in the rest of the state.

The salary threshold will increase again on Jan. 1, 2026 to $1,275.00/week ($66,300 annually) for New York City, Westchester County and Long Island, and $1,199.10/week ($62,353.20 annually) for the rest of the state.

New York does not impose a higher salary threshold than federal law for employees employed in a “bona fide professional capacity.” Therefore, salary threshold for the professional exemption under New York law remains aligned with the federal professional exemption salary threshold, which is currently set at $684.00 per week ($35,568.00 annually).		Conduct a review to determine if the new higher exempt salary thresholds will affect the exempt status of employees. Determine whether to reclassify exempt employees as non-exempt, or to adjust the base compensation of affected exempt employees to ensure they continue to meet the applicable exemption criteria. Consult with counsel before making changes to consider all possible implications.  
(4)Workers’ Compensation Now Covers “Mental Injury”| Under S6635 (effective Jan. 1, 2025), the state workers’ compensation law allows all workers to file claims for mental injury premised upon extraordinary work-related stress.

Prior to the amendment, only a small subset of first responders could obtain workers’ compensation benefits for mental injury.        		Update workers’ compensation policy coverage to include coverage for all employees alleging mental injury claims based on work-related stress.

Monitor developments on what “extraordinary work-related stress” means. It is not defined in the law.

Consult with counsel if faced with an employee claim of employment-related emotional distress outside of workers’ compensation, to determine whether workers’ compensation may be the exclusive remedy.
(5)Employers Must Include Notice Regarding Reproductive Health Care Choices in Handbooks | On Jan. 2, 2025 in CompassCare v. Hochul, the US Court of Appeals for the Second Circuit vacated a permanent injunction that had halted a requirement under N.Y. Labor Law § 203-e that employers include a notice in employee handbooks regarding the prohibition of discrimination for an employee’s or dependent’s reproductive health care choices.

As a result of the court’s decision, New York state employers are once again required to include the notice in their handbooks.		Review employee handbooks and update as necessary to include the notice of employee rights and remedies required under N.Y. Lab. Law § 203-e.    
(6)Warehouse Employers Required to Take Steps to Reduce Injury Risk by June | The Warehouse Worker Injury Reduction Program (S5081C) takes effect Jun. 1, 2025, and will require covered employers to take steps to reduce the risk of musculoskeletal injuries and disorders among workers involved in manual materials handling jobs –including implementing an injury reduction program to minimize risks of injuries.

Covered employers
Employers who employ over 100 employees at a single warehouse distribution center, or more than 1,000 employees across multiple warehouse distribution centers within New York, are covered by the law.

Injury reduction program
The law requires employers to implement an injury reduction program, which must include a worksite evaluation; control of exposures (including the pace of work) which have caused or have the potential to cause musculoskeletal injuries and disorders; employee training and involvement; and on-site medical and first aid practices.  

Worksite evaluation
Employers must ensure that each job or process covered by the law has a written work site evaluation by a qualified ergonomist for risk factors causing musculoskeletal injuries. Employers must also determine if employees exposed to these risks face adverse actions due to quotas. Employers must collect recommendations from workers on possible risk factors and possible changes to mitigate the risk factors. The required initial evaluation must take place by Nov. 28, 2025, and must be reviewed and updated at least annually, with new analyses within 30 days of any job changes.  

Correction of risk factors
Employers must promptly correct any identified risk factors causing or likely to cause musculoskeletal injuries. If corrections take more than 30 days, employers must provide a schedule for the proposed corrections. Employers must minimize exposure as much as feasible if elimination of risk factors is not possible.  

Injury reduction training
Employers must provide injury reduction training to all employees involved in manual materials handling jobs and supervisors–including training on early symptoms of musculoskeletal injuries, methods to reduce risks, and employees’ rights to report concerns. The training must be conducted at the warehouse during normal work hours, without loss of pay for employees. The training must take place on or before Jul. 31, 2025.  

On-site medical office / first aid station
Any on-site medical office or first aid station treating workers with musculoskeletal injuries must be staffed with qualified medical professionals–and employers must consult with a licensed medical consultant for evaluations and recommendations. Employers must comply with these requirements by Jul. 31, 2025.  		Covered employers should prepare to meet the law’s requirements in advance of the compliance dates, including preparing an injury reduction program and the required training, obtaining a worksite evaluation, and developing a protocol for obtaining the required recommendations from workers on risk factors and possible mitigation.  

Employers should train HR and supervisors/managers on the law’s requirements.  
(7)Violence Prevention Required by Retail Employers by March | Under S8358C, by Mar. 3, 2025, each retail employer in New York with at least 10 employees working at a retail store (not primarily engaged in the sale of food for consumption on its premises) must:

(i) Adopt and implement a written workplace violence prevention policy, which must be provided to all employees upon hire and annually;
(ii) Provide workplace violence prevention training for employees (upon hire and annually) that includes information on de-escalation tactics, active shooter drills, and emergency procedures among other topics; and
(iii) Provide their retail employees with written notice of the workplace violence prevention policy and training program in English and the employee’s primary language.

By Jan. 1, 2027, retailers with more than 500 retail employees must also create a panic button system employees can use to trigger an alert if they believe they or a colleague is in an unsafe situation.

A proposed amendment to the Act is pending in the New York State Assembly (A1678). Among other requirements, the amendment would require employers with fewer than 50 retail employees to provide workplace violence training upon hiring and every two years thereafter (instead of annually); require that employers with 500 or more retail employees statewide provide to employees “silent response buttons” (identified as “panic buttons” in the current law) which must request immediate assistance from a security officer, manager or supervisor; and change the Mar. 3, 2025 effective date to Jun. 2, 2025 (though the “silent response button” requirement would still take effect January 1, 2027).		The NYSDOL is tasked with developing both a model written policy (which the NYSDOL will monitor every four years and update as needed) and model training. Covered employers should keep watch for the NYSDOL’s model policy and training, and either adopt them or implement a policy and training that at least meets the model’s standards by Mar. 3, 2025.  

In addition, the Labor Commissioner is required to adopt rules and regulations for the implementation of the law. Retail employers should monitor for this guidance as well.    

In advance of the effective date, train HR and managers / supervisors on the law’s requirements.  

Monitor Assembly Bill A1678 and other proposed legislation for amendments to the Retail Worker Safety Act.
(8)COVID-19 Sick Leave Sunsets in July | New York’s COVID-19 Paid Sick Leave Law will sunset on Jul. 31, 2025. The law entitles employees to paid COVID-19 leave when subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. After Jul. 31, employees will still be able to use other qualifying paid leave, including New York Paid Sick Leave, for COVID-19 related reasons. For more details, see our previous blog here.Update employment policies and practices in time to comply with the new laws and modify employee handbooks as necessary.

Train HR and managers / supervisors on the likely increase of employees using other types of paid sick leave for COVID-19 after Jul. 31.
(9)Starting in May, NYC Employers Must Provide Paid Lactation Breaks |New York City adopted Int 0892-2024, amending New York City’s existing lactation law in line with recently amended state law. Effective May 8, 2025, New York City’s existing lactation law–which requires that employers provide a lactation room, “reasonable” time to express breast milk, and a written lactation policy when employees begin employment, among other things–also mandates that employers:

(i) Provide 30 minutes of paid break time to express breast milk, and permit employees to use existing paid break time or meal time for time in excess of 30 minutes to express breast milk. Prior to the amendment, an employer was only required to provide “reasonable” break time for an employee under existing law, and the break time was not required to be paid.
(ii) Conspicuously post the company’s written policy regarding a lactation room at the employer’s place of business in an area accessible to employees–and electronically on the employer’s intranet, if one exists. This is in addition to the existing requirement to provide the policy to employees when they begin employment.

As a reminder, effective Jun. 19, 2024, New York State requires employers (for up to three years following the birth of a child) to:

(i) Provide paid break time of 30 minutes to allow an employee to express breast milk for the employee’s nursing child each time the employee reasonably needs to express breast milk;
(ii) Allow an employee to use existing paid break time or meal time in excess of 30 minutes to nurse; and
(iii) Inform employees about the right to take paid lactation breaks when they are hired, on an annual basis, and when the employee returns to work after the birth of a child.

For more details on the New York State law’s requirements, see our previous blog here.		Before May 8, update policies and practices to comply with the new law, and modify handbooks to include the changes.

Train HR and managers / supervisors on the new requirements, making sure they are aware that 30 minutes of break time will be paid and that employees may use existing paid break or meal time for additional time to express breast milk.

Monitor the New York City Commission on Human Rights lactation accommodations webpage for an updated model policy.      
(10)What We’re Watching:  Employers Will Be Required to Disclose AI-Related Layoffs | According to Governor Hochul’s Jan. 14, 2025 State of the State address and policy book, New York will be the first state to require employers to disclose AI-related job cuts.

At the Governor’s direction, the NYSDOL will require businesses submitting notices of worker layoffs to its Worker Adjustment and Retraining Notification (WARN) system to convey whether a layoff is related to a businesses’ use of AI. The NY WARN Act requires employers with 50 or more full time employees to provide at least 90 days’ notice if an employer plans to implement certain facilities closings, relocations, reductions in work, or layoffs.		Employers should monitor for developments and details. It is expected that Governor Hochul will issue an Executive Order in the coming days to implement this change.

For advice and counsel on implementing changes to comply with any of your new New York obligations, please contact your Baker McKenzie employment lawyer.

Listen to this post

The Supreme Court of the United States recently settled a circuit split on the standard of proof required to classify employees as exempt from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay provisions. In a unanimous opinion, SCOTUS held in EMD Sales, Inc. v. Carrera that the “preponderance of the evidence” standard–and not the more stringent “clear and convincing” standard–applies.  

Background

The FLSA mandates federal minimum wage and overtime pay for all employees except those employed in a bona fide executive, administrative, professional, computer or outside sales capacity. “Outside sales” employees have the primary job duties of making sales or obtaining orders or contracts for services or the use of facilities in exchange for consideration paid by a client, and they also primarily work away from their employer’s place of business.

EMD, a distributor of food products in the Washington, DC area, employed sales representatives who managed inventory and took orders at grocery stores. Several sales representatives sued EMD, alleging that the company violated the FLSA by not paying them overtime. EMD argued that the sales representatives were outside sales employees and thus exempt from the FLSA’s overtime pay requirement.

Fourth Circuit: “Clear and convincing”

The US District Court for the District of Maryland ruled that EMD did not prove by “clear and convincing” evidence that its sales representatives met the FLSA exemption standard for outside sales employees, finding that the employees primarily executed the terms of sales already made instead of making new sales themselves. The court held EMD liable for overtime pay. EMD appealed, arguing that the court should have used the less stringent “preponderance of the evidence” standard in deciding whether the sales representatives satisfied the test for the outside sales exemption. The US Court of Appeals for the Fourth Circuit affirmed, adhering to Fourth Circuit precedent that required proof of FLSA exemptions by clear and convincing evidence.

SCOTUS: “Preponderance of the evidence” applies

SCOTUS granted certiorari to resolve a conflict among the circuits regarding the applicable standard of proof for FLSA exemptions–noting that the Fourth Circuit was the only circuit to have addressed the issue and require proof of FLSA exemptions by clear and convincing evidence. SCOTUS reversed and remanded for further proceedings, holding that the lower preponderance of the evidence standard is appropriate for determining FLSA exemptions.

This is the second time[1] that SCOTUS has found that there is no reason to deviate from statutory language or resort to a heightened standard of proof in employment cases, noting:

  • The preponderance of the evidence standard is the default in US civil litigation and typically applies unless a statute (or the Constitution) requires a heightened standard. The FLSA is silent on the standard of proof for exemptions, and when a civil statute is silent, courts typically apply the preponderance standard.
  • There are only three main circumstances in which the Court has deviated from the default standard in civil litigation: when mandated by a statute, when mandated by the Constitution, or in cases involving coercive government action (such as taking away a person’s citizenship). None of those was present here.  
  • The employees argued that a heightened standard should apply based on public interest and the non-waivable nature of FLSA rights, but the Court found these arguments unconvincing. Other workplace protections with important public interests–including Title VII–also use the preponderance of the evidence standard.

Employer takeaways

  • Even with clarification that a lower standard of proof applies to FLSA exemptions, employers should be diligent in ensuring that employees who are classified as exempt meet any applicable job duties and salary threshold tests. Misclassification claims often lead to class action lawsuits, and can be expensive to litigate. Employers should work with counsel to conduct an internal classification audit to ensure that actual job duties and salaries align with the FLSA’s requirements for exemption.
  • Employers should also check state law for state exemption tests. Some states, including California, have exemption tests which may include higher minimum salaries or more rigorous duties tests than those required by the FLSA. Both the state and federal tests must be applied, and if an employee satisfies the federal tests for exemption but not the state tests, the employee is entitled to overtime in all circumstances covered by the state’s law.
  • Employers should keep watch of how the Trump administration handles the US Department of Labor’s (DOL) April 23 Final Rule raising the federal overtime salary threshold (see our prior blog on the rule here).  The DOL has appealed a November 15, 2024 order by a Texas federal judge vacating the rule nationwide, but the Trump administration is expected to make several changes in the near future, including doing away with the rule. This is just one of many areas employers should monitor as the new administration proceeds with expected changes impacting employers. Stay tuned.

[1] In Muldrow v. City of St. Louis, 601 U.S. 346 (2024), the Court used similar reasoning to find that employees in Title VII discrimination cases need only show some harm, rather than substantial harm.  While some circuit courts had read a substantial harm requirement into Title VII claims, SCOTUS noted that there was no such requirement for a heightened showing in the statutory language of Title VII.

Listen to this post

On January 20, 2025, the first day of his second term, President Trump revoked Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “Biden Order”), signed by President Biden in October 2023. In doing so, President Trump fulfilled a campaign pledge to roll back the Biden Order, which the 2024 Republican platform described as a “dangerous” measure. Then on January 23, 2025, President Trump issued his own Executive Order on AI, entitled Removing Barriers to American Leadership in Artificial Intelligence (the “Trump Order”). Here, we examine some of the practical implications of the repeal and replacement of executive orders by Trump and what it means for businesses.

Overview of the Executive Orders

Building on the White House’s 2022 Blueprint for an AI Bill of Rights, the Biden Order outlined a sweeping vision for the future of AI within the federal government, including seven high-level objectives: (1) Ensuring the Safety and Security of AI Technology; (2) Promoting Innovation and Competition; (3) Supporting Workers; (4) Advancing Equity and Civil Rights.; (4) Protecting Consumers, Patients, Passengers, and Students; (5) Protecting Privacy; (6) Advancing Federal Government Use of AI; and (7) Strengthening American Leadership Abroad.

The Biden Order directed various measures across the federal apparatus –imposing 150 distinct requirements on more than 50 federal agencies and other government entities, representing a genuinely whole-of-government response.

Although the bulk of the Biden Order is addressed to federal agencies, some of its provisions had potentially significant impacts on private sector entities. For example, the Biden Order directed the Commerce Department to require developers to report on the development of higher risk AI systems.  Similarly, the Biden order directed the Commerce Department to establish requirements for domestic Infrastructure as a Service (IaaS) providers to report to the government whenever they contract with foreign parties for the training of large AI models. The Biden Order also open-endedly instructed federal agencies to use existing consumer protection laws to enforce against fraud, unintended bias, discrimination, infringements on privacy, and other harms from AI—a directive various federal regulators actioned under the Biden administration.

Other than the definition of AI, the Trump Order and Biden Order share no similarities (both Orders point to the AI definition from 15 U.S.C. 9401(3), namely: “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments”). The Trump Order does not contain specific directives (such as those in the Biden Order), but instead articulates the national AI policy to “sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” The Trump Order directs a few specific roles within the administration to develop an Artificial Intelligence Action Plan within 180 days (i.e., by July 22, 2025) to achieve the policy objective articulated in the Trump Order. The Trump Order directs these same roles within the administration to review the policies, directives, regulations, orders, and other actions taken pursuant to the Biden Order and to suspend, revise, or rescind any such actions that are inconsistent with the Trump Order’s stated policy. In cases where suspension, revision, or rescission of the prior action cannot be finalized immediately, the heads of agencies are instructed to “to provide all available exemptions” in the interim.

Practical Impacts

The practical effect of the revocation of the Biden Order—and the options available under the Trump Order—will vary depending on the measure. Although there are widespread impacts from the revocation of the Biden Order’s mandates across multiple initiatives and institutions, below are those that are expected to have a significant impact on private sector entities engaged in the development or use or AI.

Reporting requirement for powerful AI models: As noted, the Biden Order directed the Department of Commerce to establish a requirement for developers to provide reports on “dual-use foundation models” (broadly, models that exhibit high levels performance at tasks that pose a serious risk to security, national economic security, national public health or safety). Pursuant to the Biden Order, the Bureau of Industry and Security’s (BIS), a Commerce Department agency, published a proposed rule to establish reporting requirements on the development of advanced AI models and computing clusters under its Defense Production Act authority, but had not issued a final rule prior to the revocation of the Biden Order. It is likely that the new administration will closely scrutinize this reporting requirement and may take action to block the adoption of the final rule if it is found to be inconsistent with the policy statement in the Trump order.

Continue Reading AI Tug-of-War: Trump Pulls Back Biden’s AI Plans
Listen to this post

CEOs leverage M&A to scale operations, diversify offerings and break into new markets. But what are the challenges to getting the best out of transformative transactions to achieve long-term growth?

To maximize value, CEOs must look beyond financial metrics, aligning acquisitions with broader organizational goals while overcoming challenges such as navigating an intricate legal and regulatory environment and integrating corporate cultures. This guide explores the five critical challenges CEOs must address in orchestrating transformative deals.

Click here to continue reading.

In collaboration with Custom Content from the Wall Street Journal.

Listen to this post

From the requirement of pay scales and benefits in job postings to new protected classes under the Illinois Human Rights Act, 2025 promises to be yet another year of significant change for Illinois employers. While you determine how to navigate the new Illinois employment laws taking effect this year (and next!), review this checklist and keep it handy as a reference.  Though we haven’t included every new law, we’ve focused on the key ones that our clients need to know now to help best prepare you for the year ahead.

 Key Illinois ChangeEmployer To-Dos
(1) “Pay Scales and Benefits” are required in job postings | Effective Jan. 1, 2025, HB 3129 requires Illinois employers with 15 or more employees to include the “pay scale and benefits” in any job posting for positions in Illinois or reporting to Illinois. For details on the law’s requirements, see our prior blog The Illinois Department of Labor (IDOL) recently published FAQs on the law. The FAQs help to clarify:

“Pay scale and benefits” specifics
The FAQs state a “pay scale” must include a range and cannot be open-ended (e.g., “$30,000 and up” is not acceptable). And pay scales must differentiate pay for Illinois applicants if pay varies by location. In addition, employers must describe the nature of benefits provided, but are not required to give specific details or dollar values. According to the FAQs, IDOL will provide more guidance on “benefits” in the coming months.

Posting not required for only sporadic visits
Employers without operations in Illinois do not need to include the pay scale and benefits for a position unless they had a reason to know or reasonably foresee the work would be done at least in part in Illinois, and the posting requirement does not apply to positions with only occasional or sporadic visits or contact with Illinois.

Recordkeeping obligations
Employers must keep pay scale, benefits records, and job postings for at least 5 years. The FAQs provide a non-exhaustive list of records that are likely to be required – such as when and how job postings were published, when and how pay and benefits were determined, and the good-faith reason for a change if the employer ultimately offered different pay and benefits than those in the job posting.  		Review the law and FAQs and if you haven’t already done so, consult with counsel to determine your implementation plan.  

Post the required poster released by IDOL (available on the Illinois Department of Labor website here).  

Decide on best practices for choosing pay ranges for posting. Be thoughtful of how to best define “benefits,” and keep watch for additional guidance and examples from IDOL.  

Consider a pay equity audit to determine disparities and possible remedial measures. Your Baker McKenzie employment attorney can help.
(2)The state and Cook County minimum wage is $15 | As of Jan. 1, 2025, the Illinois  state minimum wage increased to $15 per hour (for employers with four or more employees), $9 per hour for tipped employees, and $13 per hour for employees 17 years old and younger who work less than 650 hours in a calendar year (those who work 650 hours or more are entitled to the $15 per hour minimum wage).

This move marks the final hike in Governor Pritzker’s 2019 legislation scheduling minimum wage increases from $9.25 per hour in 2020 to $15 per hour in 2025.

The Cook County minimum wage also increased on Jan. 1, 2025 (for employers with four or more employees) to $15 per hour, and to $9 per hour for tipped employees, matching the state’s minimum wage.  		Confirm with HR, payroll, and accounting that all necessary changes have been made.

Post the required updated “Your Rights Under Illinois Employment Laws” poster (available on the Illinois Department of Labor website here), which includes information on the new minimum wage, and the Cook County Minimum Wage Ordinance Notice to Employees (available on Cook County’s website here).

Check for higher minimum wages required by local ordinance. For example, as of July 1, 2024, the Chicago minimum wage for employers with four or more employees is $16.20 per hour, and $11.02 per hour for tipped employees. Chicago’s minimum wage increases annually on July 1 under the Chicago Minimum Wage Ordinance. Monitor the City of Chicago Office of Labor Standards website for updates.
(3)Captive audience meetings are banned | Effective Jan. 1, 2025, the Illinois Worker Freedom of Speech Act (SB 3649) prohibits adverse employment actions against an employee for declining to:

(i) Attend or participate in an employer-sponsored meeting; or
(ii) Listen to or receive communications from the employer (or the employer’s agent, representative, or designee)

if the meeting or communication is about the employer’s opinion on religious or political matters – including unionization.  		Make sure meetings on religious or political matters are voluntary. Clearly inform employees they can opt out without repercussions. Train HR and managers/supervisors not to make these meetings mandatory.  

Keep watch of this trend. In November 2024, the NLRB banned captive audience meetings, and several other states passed laws last year banning captive audience meetings, including California, Hawaii, Vermont and Washington.  
(4)Family responsibilities and reproductive health decisions are new protected classes under the IHRA – and the statute of limitations for filing a discrimination complaint under the IHRA is extended | Effective Jan. 1, 2025, employers are prohibited from discriminating against employees on the basis of “family responsibilities” (under HB 2161) and “reproductive health decisions” (under HB 4867).  Both are now protected classes under the IHRA.

Family responsibilities
“Family responsibilities” means an employee’s actual or perceived provision of personal care to a family member. “Personal care” and “family member” both have the meaning given to the terms under the Employee Sick Leave Act.

“Personal care” involves activities to meet a family member’s basic medical, hygiene, nutritional, or safety needs, or providing transportation to medical appointments. It also includes being present to offer emotional support to a family member with a serious health condition receiving inpatient or home care.

A “family member” includes an employee’s child, stepchild, spouse, domestic partner, sibling, parent, in-laws, grandchild, grandparent, or stepparent.  

Reproductive health decisions
“Reproductive health decisions” are a person’s decisions regarding the person’s use of contraception; fertility or sterilization care; assisted reproductive technologies; miscarriage management care; healthcare related to the continuation or termination of pregnancy; or prenatal, intranatal, or postnatal care.  

Statute of limitations for a discrimination complaint under the IHRA extended
Also effective Jan. 1, 2025, under SB 3310, the statute of limitations for filing a complaint of discrimination under the IHRA with the Illinois Department of Human Rights has been extended from 300 days to 2 years.  		Note that the amendments do not specifically impose any new leave or accommodation requirements on Illinois employers, but other laws like the FMLA and paid leave laws in Illinois, Cook County and Chicago may provide job-protected leave for individuals under the new protected classes.  

Train HR, managers/supervisors, and employees on the new protected classes, including for purposes of accommodation and leave requests.  

Update anti-discrimination and anti-harassment policies, including in handbooks, to incorporate the new protected classes, and train employees on these policies regularly to reduce the likelihood of discrimination claims.   Consult with counsel when facing employee discrimination claims.
(5)Employers must provide more documents under the Personnel Record Review Act | Effective Jan. 1, 2025, amendments to the Personnel Record Review Act (PRRA) (HB 3763) increase employer obligations under the Act.  

Under the existing PRRA, employers were required to provide personnel documents used in determining the employee’s qualifications for employment, promotion, transfer, compensation, discharge, or other disciplinary action upon written request from the employee. Under the amendments, employers must now also provide copies of contracts, employee handbooks, and written policies and procedures employees were subject to – as well as personnel documents pertaining to benefits.

In addition, an employee’s “written request” for records now specifically includes any electronic communications, including emails or text messages.

And though existing law limits the fee that an employer can charge the employee to the actual cost of duplicating the requested records, the amendment specifies that the fee may not include imputed costs – such as the time spent duplicating the information, the purchase or rental of copying machines, computer equipment, or software, or other similar expenses.		Modify internal policies and train HR and managers/supervisors to comply with the law’s changes. Ensure that requests from employees sent by email or text message are honored, and that personnel records such as contracts and employee handbooks are provided when requested.  

Ensure any fees charged for providing records are limited to the actual cost of duplicating the information.
(6)Employees have expanded protections and a new “good faith” requirement under Whistleblower Act amendments | Effective Jan. 1, 2025,HB 5561 amends the Whistleblower Act. The new law:

Protects employees who report directly to their employer
The amendments expands protected conduct under the Act to include reporting violations of the law or threats to public health and safety directly to the employer (rather than a governmental agency).  
Clarifies “employee”
An “employee” includes anyone permitted to work by an employer, except independent contractors.

Imposes a “good faith” requirement on employees
Employees now must have a “good faith” belief that the questioned activity or practice violates a state or federal law or poses a danger to employees, public health or safety.

Prohibits retaliation
Employers are prohibited from retaliating against employees who threaten to disclose illegal or dangerous activities – provided the disclosure is based on a “good faith” belief. “Retaliatory action” now includes blacklisting an employee from future opportunities and immigration-based retaliation, but excludes truthful performance-related references, as well as actions taken under federal direction or required by law.

Defines adverse employment action
“Adverse employment action” includes any action that “a reasonable employee would find materially adverse,” including any action that could dissuade a reasonable worker from disclosing protected information.

Provides for enforcement by the AG’s office, and increases penalties
The Illinois Attorney General’s office now has express statutory authority to file suit against employers who retaliate or threaten retaliation against employees. Employees can now be awarded interest on back pay of 9% for each year up to 90 calendar days from the date a complaint is filed, along with liquidated damages and a civil penalty up to $10,000 each.		Update whistleblower policies to include the changes in the law, including who is considered an “employee,” the “good faith” requirement for reporting unlawful activities, and the protections employees have under the new law.  
Train HR and managers/supervisors on the new law, emphasizing the importance of not retaliating against employees who report or threaten to report illegal or dangerous activities.  

Ensure clear, accessible channels for employees to report alleged violations or threats to public health and safety.    
(7)Employers have additional recordkeeping obligations under the Illinois Wage Payment and Collection Act | Effective January 1, 2025, amendments to the Illinois Wage Payment and Collection Act (SB 3208) increase employer recordkeeping obligations.

Under the new law, employers must maintain copies of employee pay stubs for not less than three years after the date of payment, and provide copies of pay stubs to employees (or former employees) within 21 days upon employee request – but employers are not required to grant this request more than twice in a 12-month period, and for former employees, employers are not required to grant the request more than one year after the date of separation. Employers can require that employees make the request for pay stubs in writing.

In addition, employers who furnish electronic pay stubs in a manner that an outgoing employee cannot access after separation must, by the end of the outgoing employee’s final pay period, offer to provide the employee with a record of all the pay stubs from the year prior to the separation – and must keep a written record of the date of offer and if and how the employee responds.

An employer who fails to furnish pay stubs as required is subject to a civil penalty of up to $500 per violation, payable to IDOL.		Update recordkeeping policies and practices to maintain and provide copies of pay stubs in compliance with the law.

Train HR and managers/supervisors on the law’s new requirements and the company’s procedures on responding to requests from employees and former employees for copies of pay stubs.
(8)BIPA per-scan damages are no longer |  SB 2979  amends the Illinois Biometric Information and Privacy Act (BIPA) to limit damages to one violation per individual, rather than each instance their biometric information is captured, collected, disclosed, redisclosed, or otherwise disseminated.

The amendment, which took effect Aug. 2, 2024, is the Illinois legislature’s answer to Cothron v. White Castle System, Inc. (see our blog on Cothron here), which held that a separate BIPA claim accrues each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(d) of BIPA – not just the first time.  

The amendment also permits a “written release” by electronic signature.		Despite the elimination of per-scan damages, employers using biometric data must still be diligent. Be certain to have a clear written BIPA policy in place, notify employees (and consumers) before collection, obtain written consent, and make a retention schedule publicly available.  

Keep watch of the current split between Illinois federal judges on whether the damages-limiting amendment applies prospectively or retroactively from Aug. 2, 2024.  (See our blog here.) The scope of an employer’s potential financial exposure could vary greatly, depending on the court overseeing the litigation. Employers should monitor developments, and consult with counsel if facing a BIPA claim.
(9)New procedures for employers if discrepancies arise in E-Verify or I-9 inspections | Effective Jan. 1, 2025, SB 0508 clarifies employers are not required to use E-Verify (or any other electronic employment verification system) to determine work authorization status unless required by federal law – and employers who use verification systems cannot impose verification requirements greater than those required by federal law.

New procedures if discrepancy in verification information
However, if employers choose to use a verification system, they must comply with new procedures if there is a discrepancy in an employee’s employment verification information.

If an employer finds a discrepancy in an employee’s verification information, the employer must provide the employee with the deficient documents and the reason for the deficiency, provide instructions on how to correct the deficiencies (if required by law), and explain the employee can have a representative present during related meetings, among other requirements.

If an employer receives notification of a discrepancy from a federal or state agency, the employer must refrain from taking adverse action against the employee, provide the employee with a notice explaining the discrepancy and the time period the employee has to contest the determination, and explain that the employee may have a representative in any related meetings, discussions or proceedings.

Obligations regarding I-9 forms
In addition, under the new law, if an inspecting entity determines during an inspection of the employer’s I-9 forms that the employee’s work authorization documents fail to establish that the employee is authorized to work in the US and provides notice to the employer, the employer must provide:
(i) Written notice to the employee of the deficiency;
(ii) The time period for the employee to notify the employer whether the employee is contesting the determination;
(iii) The date and time of any meeting with the employer or inspecting entity regarding a correction of the determination; and
(iv) Notice that the employee has the right to representation during any meetings with the employer and inspecting entity.

If the employee contests the I-9 determination, the employer must notify the employee of the inspecting agency’s final determination within 72 hours of receipt.		Employers should consult with counsel to decide the best method for determining work authorization status given the new law and required procedures if discrepancies arise.  
(10)Coming in 2026: Employers prohibited from using AI that has discriminatory effect on employees | Effective Jan. 1, 2026, HB 3773 amends the Illinois Human Rights Act (IHRA) to make it unlawful for employers to use AI that has the effect of discriminating against employees on the basis of a protected class in recruitment, hiring, promotion, discipline, termination and other terms, privileges or conditions of employment. In addition, the law also prohibits employers from using ZIP codes as a stand-in or proxy for protected classes.

The law also requires employers to notify applicants and employees when using AI with respect to “recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment.”		Inventory your AI used in employment activities such as recruitment, hiring, and promotion, and regularly audit your AI systems to ensure they do not inadvertently discriminate against protected classes under the IHRA.

Create policies to ensure notice is provided to applicants and employees when AI is being used in employment-related decisions.

For more on the new law, and a survey of the AI legal landscape across the US and globally, see our prior blog here.  

For advice and counsel on implementing changes to comply with any of your new Illinois obligations, please contact your Baker McKenzie employment lawyer.

Listen to this post

As we enter 2025, it is crucial for employers to review the numerous changes in labor laws across Latin America from 2024 and to anticipate the trends that will shape the coming year. In this blog, we provide a comprehensive overview of the key updates, reforms, and new regulations that have impacted the labor landscape in various LATAM countries in 2024, and what to expect in 2025.

2024 Recap

Argentina

  • No more labor fines: Argentina removed fines for issues like defective registration and delayed severance payments.
  • Easy employee registration: Electronic pay slips and digital proof of payments are now accepted.
  • Subcontracting simplified: The use of third-party employees to perform company tasks is no longer considered an illegal substitution of the employer.
  • Digital work certificates: Work certificates now have simplified delivery through digital means.
  • Extended trial period: The probationary period for new employees has been extended from 3 to 6 months (and up to 12 months in some cases).
  • Pregnancy protection: Pregnant employees can work up to 10 days before giving birth.
  • Labor amnesty: A labor amnesty was introduced covering unregistered or poorly registered employment relationships.
Continue Reading Latin America Employment & Compensation: 2024 Recap and 2025 Trends
Listen to this post

The wildfires in Los Angeles County have wreaked devastation in the area, with thousands of homes and other structures, vehicles, and more destroyed by the worst wildfire in L.A. history. In response, on January 8, 2025, President Biden approved a Major Disaster declaration for California, allowing impacted communities and survivors to immediately access funds and resources to jumpstart their recovery.

As it stands, impacted individuals are in need of funds, housing, food, clothing, medical care, and other assistance as they navigate their current circumstances and begin to rebuild.  For employers who want to help, there are various tax-free ways to provide housing, cash, food, and other assistance to those affected by the wildfires that will give employees the resources and flexibility they need to get through these incredibly difficult times.

The various forms of assistance with tax-preferred treatment include “qualified disaster relief payments” under section 139, leave sharing programs, and assistance through employer-sponsored private foundations, donor-advised funds, and public charities. While each of these is beneficial, section 139 is the simplest method of assistance to establish, followed by leave-sharing programs, whereas private foundations, public charities and donor-advised funds will take some time to set up for employers that have not done so previously, and have restrictions as to how much assistance can be provided and to whom. 

Section 139

Under section 139 of the Internal Revenue Code, employers can provide employees with assistance, or “qualified disaster relief payments.” Section 139 provides an exclusion for “qualified disaster relief payments” from any source, including from employers, for reimbursement or payment of individuals’ eligible expenses in connection with a “qualified disaster.”  Qualified disaster relief payments are excluded from gross income, net earnings from self-employment, wages, and compensation subject to tax.

Qualified disasters are defined in section 139 to include a Presidentially declared disaster.  

Qualified disaster relief payments include payments to or for the benefit of an individual for:

  • reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a qualified disaster; and
  • reasonable and necessary expenses incurred for the repair or rehabilitation of a personal residence or repair or replacement of its contents to the extent that the need for such repair, rehabilitation, or replacement is attributable to a qualified disaster, to the extent any expense compensated by such payment is not otherwise compensated for by insurance or otherwise. 

Qualified disaster relief payments do not include lost wages or other income replacement or unemployment, and cannot be for expenses that have been otherwise reimbursed, such as by insurance.

It’s important to note that section 139 does not require that any type of policy or plan be in place or that one be established. Moreover, section 139 does not require any tracking or substantiation of the amounts reimbursed to or paid for the benefit of an employee, and does impose any limits on the amount that can be reimbursed to or paid on behalf of an employee as long as the assistance provided is reasonably expected to be commensurate with the amount of unreimbursed reasonable and necessary expenses.  Employees are not required to return amounts or items reimbursed or paid for by their employer for the benefit of the employee.   

Under section 139, the provision of both cash and in-kind benefits is permitted. Accordingly, employers who want to assist employees affected by the LA Wildfires are able to provide cash, as well as temporary housing or hotel stays, medical care, food, clothing and other items employees may need as they face evacuations, smoke and other damage to their homes and possessions.

Employers may provide qualified disaster relief payments to employees directly, or via employer-sponsored private foundations or donor-advised funds, as discussed below. 

Practically, while section 139 does not require that a written plan be in place nor that employers obtain any type of substantiation, it’s suggested that employers communicate that any assistance being provided is intended to be qualified disaster relief under section 139. It’s further suggested that employers obtain some sort of confirmation that employees receiving the assistance are affected individuals and that the expenses have not otherwise been reimbursed or paid for by insurance or otherwise.

Section 139 payments are deductible to the same extent as if they were includable in income.

Leave Sharing

While cash and in-kind assistance such as temporary housing, hotel stays, clothing and food are critical, the flexibility that additional leave, or paid time off, provides is often just as necessary as it permits employees to not have to choose between working to get paid, or taking unpaid time off during a period when they are dealing with mounting expenses, required evacuations, and rebuilding, sometimes from scratch. As such, leave-sharing programs are another excellent resource for employers to provide employees affected by the wildfires.

Pursuant to Notice 2006-59, employers can establish leave sharing plans that permit employees to donate a portion of their accrued leave to a pool, which can then be used by employees who have been affected by a declared disaster and need additional leave (beyond what they have individually accrued). If the leave-sharing plan meets certain requirements, the leave donor employee is not taxed on the donated leave, and the leave recipient employee is able to use the extra paid time off (which is taxed as wages to them), as needed.

Notice 2006-59 provides the following requirements in order for the donated leave to not be taxable to the leave donor employee:

  • The plan must be in writing;
  • The plan must permit leave donors to deposit accrued leave in an employer-sponsored leave bank for use by other employees who have been adversely affected by a major disaster (defined to include employees for whom the disaster has caused severe hardship to the employee or a family member of the employee that requires the employee to be absent from work).
  • The plan may not permit a leave donor to deposit leave for a specific employee.
  • The plan must limit the amount of leave that may be donated by a leave donor in any year so that it does not exceed the maximum amount of leave that an employee normally accrues during the year.
  • The plan must allow a leave recipient to receive paid leave at their normal rate of compensation from the leave bank, which leave must be used for purposes related to the disaster.
  • The plan must specify a period with a reasonable limit, based on the severity of the disaster, after the major disaster occurs during which leave may be deposited and received.
  • The plan may not permit leave recipients to convert leave received into cash in lieu of using the leave, though a leave recipient may use leave received to eliminate a negative leave balance resulting from taking advanced leaved as a result of the disaster, or use leave received in lieu of leave without pay.
  • The employer must make a reasonable need-based determination as to how much leave each employee may receive.
  • Leave deposited on account of one major disaster may be used only for employees affected by that major disaster, and other than de minimis amounts, any leave deposited that is not used by leave recipients by the end of the period specified above must be returned to leave donors in proportion to the leave donated within a reasonable period of time so that the donor will be able to use the leave. (If leave donor employees have terminated, the employer may choose to return leave only to currently employed employees.)

Setting up a leave-sharing program that complies with the requirements of Notice 2006-59 is relatively simple. Employers who either have a plan or want to set one up should communicate the plan to employees so that employees who wish to donate, or who are in need of leave, are familiar with the program and can take advantage of it. In practice, senior and other employees with significant amounts of accrued leave that is unlikely to be used, particularly if there are any “use or lose” restrictions on accruing leave, are generally happy to donate to employees affected by disasters.

Leave-based Charitable Donation Programs

Another potential option that is dependent on IRS guidance is to set up a leave-based charitable donation program. Under leave-based charitable donation programs, employees can elect to forgo vacation, sick or personal leave in exchange for cash payments that the employer makes to IRC Section 170(c) charitable organizations, as instructed by IRS guidance.

While the IRS has not yet issued guidance with respect to the current LA Wildfires, it would be normal course for such guidance to be issued.  If so, it would generally permit employers to set up leave-based donation programs, but rather than donating leave to other employees, the employer would make contributions to charities benefitting victims of the LA Wildfires.  The IRS issued similar guidance in Notice 2017-70 with respect to the 2017 California wildfires.  Once guidance is released, employers may want to consider this as an option, particularly if the company’s employees have not been directly affected.  

In general, under these programs, cash payments made pursuant to these programs will not be treated as wages or otherwise be included in the donating employees’ gross income if the payments are made to the IRC Section 170(c) charitable organizations for victims, as specified in IRS guidance, and paid to the IRC section 170(c) organization by the deadline set in IRS guidance.

Cash payments made pursuant to IRS guidance under these programs are not be included in Box 1, 3 (if applicable), or 5 of Form W-2 for the donating employee. In addition, employees may not claim a charitable contribution deduction under IRC Section 170 for the value of forgone leave.

Employers may deduct these cash payments in accordance with IRC Section 170 or IRC Section 162 if they otherwise meet the respective requirements.

As noted, these programs are dependent on IRS guidance so we will need to wait and see.

Private Foundations

Like public charities, employer-sponsored private foundations can make need-based distributions to victims of disasters or to members of a charitable class, though they tend to have more restrictions than public charities because of the control the employer has.  However, employer-sponsored private foundations can make qualified disaster relief payments to employees or their family members under section 139, as long as certain safeguards are in place to ensure that such assistance is serving charitable purposes, rather than the business purposes of the employer.

In general, the IRS will presume that section 139 qualified disaster relief payments made by a private foundation to employees (or their family members) of an employer that is a disqualified person (such as a company that is a substantial contributor or manager of the foundation) are consistent with the foundation’s charitable purposes if:

  • the class of beneficiaries is large or indefinite (a charitable class),
  • the recipients are selected based on objective determinations of need, and
  • the selection is made using either an independent selection committee (where the majority of the members are persons who are not in a position to exercise substantial influence over the affairs or the employer) or adequate substitute procedures to ensure that any benefit to the employer is incidental and tenuous.

If these requirements are met, then the foundation’s payments in response to a qualified disaster are treated as made for charitable purposes, do not result in taxable compensation to the employees pursuant to section 139, and do not result in prohibited self-dealing merely because the recipient is an employee (or a family member of an employee) of the employer-sponsor. However, the presumption described above does not apply to payments that would otherwise constitute self-dealing, such as payments made to (or for the benefit of) individuals who are directors, officers, or trustees of the private foundation or members of the private foundation’s selection committee. Such payments would be fully taxable to such individuals and may cause the individuals and managers of the foundation who approved the payments to be subject to the highly punitive self-dealing excise taxes.

To the extent employers would like to utilize a private foundation to assist employees affected by wildfires, it’s suggested that advice be sought to confirm that the payments are excludable and do not subject the foundation’s management and disqualified employees (employees who are substantial contributors to the foundation or serve in a management role at the foundation) to any excise tax.

Donor-advised Funds

While donor-advised funds cannot generally make grants to individual persons, as with private foundations, there is an exception for certain employer-related funds or accounts established to benefit employees and their family members who are victims of a section 139 qualified disaster.

Specifically, a donor advised fund or account can make grants to employees and their family members in the following circumstances:

  • the fund serves the single identified purpose of providing relief from one or more section 139 qualified disasters,
  • the fund serves a charitable class,
  • recipients of grants are selected based upon an objective determination of need,
  • the selection of recipients of grants is made using either an independent selection committee (where a majority of its members consists of persons who are not in a position to exercise substantial influence over the employer’s affairs) or adequate substitute procedures to ensure that any benefit to the employer is incidental and tenuous,
  • no payment is made from the fund to or for the benefit of any director, officer, or trustee of the sponsoring community foundation or public charity, or members of the fund’s selection committee, and,
  • the fund maintains adequate records to demonstrate the recipients’ need for the disaster assistance provided.

To the extent employers wish to provide assistance through a donor-advised fund, it is essential to note that while section 139 does not have substantiation requirements, in order for amounts to remain tax-free to the recipient employees, the fund itself must maintain adequate records to demonstrate the recipients’ need for the disaster assistance provided. It’s suggested that advice be sought to confirm that the payments are excludable and meet the relevant requirements.

Charities

An employer can establish an employer-sponsored public charity to provide assistance programs to respond to disaster or employee emergency hardship situations, subject to restrictions on employer control over the organization. To ensure the program is not impermissibly serving the related employer, the following requirements must be met:

  • the class of beneficiaries must be large or indefinite (a “charitable class”),
  • the recipients must be selected based on an objective determination of need, and,
  • the recipients must be selected by an independent selection committee (where the majority of the members of the committee consists of persons who are not in a position to exercise substantial influence over the affairs of the employer) or adequate substitute procedures must be in place to ensure that any benefit to the employer is incidental and tenuous.

If these requirements are met, the public charity’s payments to the employer-sponsor’s employees and their family members in response to a disaster or emergency hardship are presumed to be made for charitable purposes, and are not taxable to the employees.

Given the restrictions, employers are not able to direct a charity to provide aid to specific employees, and employees would need to seek assistance under normal course. 

Takeaways

  • Now that President Biden has declared the LA Wildfires a disaster, it is possible to provide employees, contractors, and others impacted by the wildfires with non-taxable disaster relief under section 139. 
  • Section 139 relief can be implemented through various vehicles.
  •  Direct section 139 qualified disaster relief payments programs are simplest to set up, as they require no written plan and no substantiation, and permit employers to provide assistance such as cash, housing, food, medical care, and clothing immediately as long as it is reasonable to do so.
  •  Other vehicles, such as assistance through private foundations, require more planning and set up to ensure that payments made through them remain excludable and meet the relevant requirements.

Regardless of the vehicle(s) used, given the destruction wrought by these wildfires and the long road affected employees will face in rebuilding and recovering what they’ve lost, both materially and emotionally, assistance and support from employers in helping employees move forward will have a positive impact

Continue Reading How Employers Can Help Employees Affected by the Wildfires Tax-Free
Listen to this post

As you plan your to-dos for the year ahead, our “2025 Top 10” will guide you through the material employment law changes ahead in the Golden State. While we have not included all new California employment laws effective 2025, we’ve highlighted the major changes our clients need to know.

Key California ChangeEmployer To-Dos
(1)Minimum Wage Increase | As of Jan. 1, 2025, the state minimum wage increased to $16.50 per hour for all employers, regardless of employee headcount. Also as of Jan. 1, exempt employees in California must be paid a minimum annual salary of $68,640.Confirm with HR, payroll, and accounting that all necessary changes have been made.
Provide updated Wage Theft Prevention Act notices to any employees impacted by the increased minimum wage.
Post the updated Minimum Wage Order and the Wage Order applicable to your workplace. (Posters can be downloaded from the Department of Industrial Relations’ website here.)
Be sure to check for higher minimum wages required by state law (e.g., fast food workers and certain health care workers must be paid higher minimum wages) and local ordinances (e.g. in Menlo Park, the minimum wage is now $17.10 and in Mountain View, the minimum wage is now $19.20). As a practical matter, most employees outside of rural areas will be entitled to a higher minimum wage than provided by state law. (See here for a list of City and County minimum wage requirements maintained by UC Berkeley.)
(2)New Posting Requirements
Whistleblower Rights Posting: Under AB 2299, and beginning Jan. 1, 2025, employers must “prominently display” a specific notice of a comprehensive list of employee rights and responsibilities under existing whistleblower laws. The notice, provided by the Division of Labor Standards Enforcement (and linked here) must be posted in 14 point or larger type (printing instructions are provided on the notice to meet that requirement).
Workers’ Compensation Legal Advice Notice: Beginning Jan. 1, 2025, AB 1870 requires employers to include in workplace notices related to workers’ compensation rights and benefits that (i) an injured employee has the right to consult an attorney, and (ii) in most instances, attorneys’ fees will be paid from the injured worker’s award. 		Ensure you are posting the specific “rights and protections” drafted by the Labor Commissioner.  
Revise any workplace notices related to workers’ compensation rights and benefits to meet AB 1870’s requirements, and take the opportunity to check-in on other workplace notices to ensure they are up-to-date and compliant.
(3)No Longer Allowed to Require Employees to Use Vacation Before Receiving State PFL Benefits | Under AB 2123, and beginning Jan. 1, 2025, employers can no longer require employees to use up to two weeks of accrued vacation before receiving PFL insurance benefits paid by the state.Update leave and PTO policies (including in the employee handbook) to reflect this change.  
Train HR, managers and supervisors on the change.
(4)No Longer Allowed to Require a Driver’s License (For Most Positions) | Effective Jan. 1, 2025, SB 1100 prohibits employers from discriminating against individuals without a driver’s license. Employers are prohibited from advertising a position of employment that requires a driver’s license unless there is a reasonable expectation that driving is a function of the position, and the employer reasonably believes an alternative form of transportation would not be comparable in travel time or costs to the employer. An “alternative form of transportation” includes, but is not limited to, using a ride hailing service, using a taxi, carpooling, bicycling, or walking.Review current job advertisements, postings, applications and other pre-employment documentation to comply with SB 1100.  
Limit requirements for a driver’s license to positions where driving is a core function of the role. If it is not, consider whether alternative forms of transportation are viable options.
If requiring a driver’s license for a position, explain the rationale for the requirement in the job posting to provide transparency.
(5)Expanded Protections for Victims (or Family Members) of Certain Crimes | Beginning Jan. 1, 2025, AB 2499 expands rights for employees who are victims of crime or who have family members who are victims of crime.
Among other things, the new law:
Broadens the definition of crime victim to include a victim of a “qualifying act of violence”-which includes domestic violence, sexual assault, stalking, and other violent acts;
Expands the definition of a “family member” who is a victim of crime-and employees may now choose a “designated person”;
Makes both employees who are victims and those who have family members who are victims eligible for reasonable accommodations at work;
Adds new prescribed purposes for taking time off, including to participate in safety planning and to relocate; Expands paid sick leave under California’s Healthy Workplace Healthy Families Act to allow employees to use such leave when an employee or an employee’s family member is a victim.
Employers can limit leave to 12 weeks for victims, 10 days for employees who have family members who are victims, and 5 days for relocation related to family members who are victims. Employers can require the leave to run concurrently with Family and Medical Leave Act and California Family Rights Act leave, if the employee is eligible for that leave. And employers with 25 or more employees cannot retaliate or take other adverse actions against employees taking time off for prescribed reasons.
In addition, the new law recasts existing crime victim protections as unlawful employment practices within the Fair Employment and Housing Act and, thus, within the enforcement authority of the California Civil Rights Department.		Update written policies and handbooks to address the expanded rights for employees who are victims of crime or have family members who are victims of crime.
Train HR, managers and supervisors on the change in the law-including providing reasonable accommodations and expanded leave options for affected employees, such as allowing time off for safety planning, relocation, and other prescribed purposes, and ensuring that paid sick leave can be used when an employee or their family member is a victim.
(6)Workplace Violence Restraining Order Law Expanded to Include Harassment | Effective Jan. 1, 2025, SB 428 expands California’s existing workplace violence restraining order law to let employers seek temporary restraining orders on behalf of employees who have suffered harassment (in addition to workplace violence or threats of violence, which are bases for a temporary restraining order under existing law). Under the law, “harassment” is defined as a course of conduct directed at a specific person that serves no legitimate purpose and “seriously alarms, annoys, or harasses the person[.]” The course of conduct must be conduct which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.Update anti-harassment training and policies to ensure employees understand the law’s definition of “harassment,” can recognize behaviors that meet the law’s criteria, know how to report any such behaviors, and understand the importance of reporting.
Make sure managers, EROs and HR understand that in the event of a complaint of harassment, the company can explore whether a workplace violence restraining order is an appropriate remedy to address the complaint.
(7)Minimum Requirements Relating to Contracts with a Freelance Worker | Under the “Freelance Worker Protection Act” (SB 988), starting January 1, 2025, employers must heed additional guardrails when using independent contractors:
Written contract: A written contract is required when freelancers (independent contractors) perform over $250 of freelance work (as specified in California Labor Code Section 2778(b)(2)) for a hiring entity within a four-month period. The contract must outline the scope of work expected, the rate of pay, and the method of payment.  
Pay requirements: Hiring entities must pay freelancers by the date specified in the contract, or within 30 days after the completion of services if no date is specified. Hiring entities cannot require independent contractors to accept less than the contract stipulates in exchange for faster payment.   Damages: If freelancers are not paid as required, they are entitled to damages equal to double the payment originally specified in their contract, plus costs and attorney’s fees-and the Act provides for a private right of action as well as action by public prosecutors.		Review the freelance-style services contained in Labor Code Section 2778(b)(2) to determine if SB 988 is relevant to the company.
If it is, train HR, hiring managers and procurement on SB 988’s obligations.  
(8)Combinations of Protected Characteristics | California is the first state to explicitly recognize intersectionality. Effective Jan. 1, 2025, SB 1137 amends anti-discrimination laws pertaining to employment, housing, public accommodations and education to clarify that those laws also prohibit discrimination based on the intersection, or combination, of two or more protected characteristics.
Under the new law, when a party claims multiple bases for discrimination or harassment, it may be necessary to determine whether the alleged discrimination or harassment could have occurred due to a combination of factors, or just a single protected characteristic.		Update anti-discrimination and anti-bias training to ensure HR, managers and supervisors understand that the Unruh Civil Rights Act and the FEHA prohibit discrimination on the basis not just of individual protected traits, but also on the basis of the intersectionality (combination) of two or more protected traits.
Keep watch on how courts handle claims of intersectional discrimination, and consult with counsel when faced with these (or any discrimination) claims by employees.
(9)Ban on “Captive Audience” Meetings | California is the 10th state to ban so-called captive audience meetings.  Effective Jan. 1, 2025, SB 399 prohibits employers from requiring workers to attend meetings on religious or political matters, including anti-unionization meetings.
California employers will face a $500-per-employee fine if they make workers sit through these meetings. Employers may continue to hold such meetings — a popular tool to discourage union organizing — as long as attendance is voluntary.		Ensure any meetings on religious or political matters (including anti-unionization meetings) are voluntary, and clearly communicate to employees the right to opt out of such meetings without repercussion.  
Train HR, managers and supervisors on SB 399’s requirements, noting that the law broadly defines “political matters.” Keep an eye on this trend. On November 13, 2024, the National Labor Relations Board banned captive audience meetings (though we’ll see whether this holds under the new administration), and several other states also passed similar laws banning captive audience meetings (e.g. Hawaii, Illinois, Vermont and Washington).
(10)Social Compliance Audits & Child Labor | Effective Jan. 1, 2025, under AB 3234, any employer that voluntarily subjects its business to a “social compliance audit”-whether the audit is conducted in whole or in part to determine if child labor is involved in the employer’s operations or practices-must post a link on the employer’s website to a report detailing the findings of the audit regarding child labor. Though “social compliance audit” is broadly defined to also include an audit of an employer’s wage and hour and health and safety regulations, only employers who conduct audits to determine if child labor is involved in the employer’s operations or practices are required to post a link to the report of its findings. Employers who believe they may be required to comply by posting a link to a report should first consult with counsel to walk through several considerations, including (i) whether the audit was “voluntary” by the law’s definition, (ii) whether the audit is privileged (and therefore should not be disclosed), and (iii) how the law interacts with other applicable ESG laws.  
Keep an eye out for regulatory guidance on AB 3234.

On the cutting room floor

There were a handful of notable legislative defeats in 2024, including:

  • The California minimum wage hike ballot measure (Proposition 32), which would have gradually increased the state minimum wage to $18 by 2026, was voted down (but it was a close vote, with a 50.2% of voters voting “no” and 49.2% voting “yes”).
  • AB 2930 would have regulated the use of automated decision tools in employment but the bill died in the Senate. We expect there’s more to come on this topic and we’re keeping a close watch on legislative developments impacting how employers use AI.
  • SB 1022 would have brought changes to FEHA administrative timelines, including changes to tolling rules, and would have extended the deadline for the Civil Rights Department Director to file a group or class complaint to seven years from the date of the alleged violation. Governor Newsom vetoed the bill, citing the limitations period, which would have been “significantly longer than the limitations period for similar civil matters, including class action litigation on behalf of employees” as the reason.
  • SB 1116, which would have made employees eligible for unemployment benefits after two weeks of absence due to a trade dispute or strike, failed to make it out of committee.

For advice and counsel on implementing changes to comply with any of your new California obligations, please contact your Baker McKenzie employment lawyer.

Listen to this post

Special thanks to co-presenters Jose Larroque, Ma. Rosario Lombera, and Javiera Medina-Reza.

In a climate marked by high levels of insecurity, immigration issues and the anticipated renegotiation of the Trade Agreement between Mexico, the United States and Canada, proposed labor reforms under Mexico’s first female president, Claudia Sheinbaum Pardo, aim to reshape the country’s workforce landscape.

In this episode of “Quick Chats for the Mexican Workplace,” we discuss the key legislative changes under the new administration, focusing on labor reforms such as ensuring gender pay equality, providing social security for digital platform workers, and reducing the work week.

Employers may face a potential 30-40% increase in payroll costs due to enhanced employee standards and must be vigilant about not exceeding the legal workday limits, as this is considered labor exploitation and is a crime.

With insights about the broader implications of these changes for employers with operations in Mexico from Pepe Larroque, Managing Partner of Baker McKenzie’s five offices in Mexico, our employment partners outline best practices and practical tips to prepare for 2025.

Click here to watch the video.

This video was recorded on December 2, 2024. 

Listen to this post

Join our AI and Cyber CLE Series

If your last name starts with A-G, you are probably well aware that your (recently extended) MCLE compliance deadline is on March 30, 2025. In addition to the general credit requirement, the state of California requires all attorneys to complete:

  • At least four hours of legal ethics
  • At least two hours on competence issues
  • At least two hours on the elimination of bias in the legal profession and society. Of the two hours, at least one hour must focus on implicit bias and the promotion of bias‑reducing strategies.
  • At least one hour on technology 
  • At least one hour on civility
Continue Reading California’s CLE Compliance Deadline Is Approaching – We can help!