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In 2023, uncertainty is the new certainty, with the economic cycle replacing Covid-19 as the main driver of instability. Experience, along with the insights we’ve gathered from more than 600 senior lawyers at large corporations across the globe, point to an anticipated rise in employment disputes. Organizations should proactively identify risk and involve dispute practitioners as early as possible to mitigate the impact of this rise in complaints.

Uncover the outlook in our sixth annual report, The Year Ahead: Global Disputes Forecast 2023. Featuring results from our global survey of 600 senior lawyers at large organizations, we unpack the survey findings and highlight the top disputes risks across key industry sectors and locations. See full report and highlights. 

And — to go deeper, register here for The Year Ahead: Global Disputes Forecast 2023 – Employment webinar scheduled for February 21, 2023, 8:00 am CT.



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Special thanks to Mark Hamer, Creighton Macy, Nandu Machiraju, Jeffrey Martino, Darley Maw, Kayleigh Golish, Will Woods, Abhishek Dube, Bradford Newman and Nicholas Kennedy.

Over the past week, the Federal Trade Commission (“FTC”) took a major step to expand competition policy deeper into labor markets.

On July 9, 2021, President Biden signed an Executive Order on antitrust and competition policy that identified non-compete clauses as an area for greater scrutiny. The Executive Order invited the FTC to use its “statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” This week, the FTC significantly advanced the Executive Order’s directive.

Click here to continue reading.

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New year, new Cal/OSHA COVID-19 regulations. The non-emergency COVID-19 prevention regulations (“New Regulations”) still await the Office of Administrative Law’s approval, but will likely take effect in the next few weeks. Employers eagerly await the end of the Emergency Temporary Standard’s (“ETS”) more burdensome requirements, such as exclusion pay and reporting outbreaks to local health departments. But the New Regulations also carry burdensome changes and unanswered questions that are sure to give employers headaches.

1. The “close contact” definition still makes little sense and is not practical

On October 13, 2022, the California Department of Public Health (“CDPH”) updated its definition of a COVID-19 “close contact.” At the time, Cal/OSHA clarified that the new definition also applied to the ETS. Now, the New Regulations explicitly incorporate the definition. The new close contact definition retains the “within six feet of the infected person for a cumulative total of 15 minutes or more” test for shared indoor airspaces over 400,000 cubic feet, but uses a new “sharing the same indoor airspace for a cumulative total of 15 minutes or more” test for airspaces of 400,000 cubic feet or less. Notably, most office floors are less than 400,000 cubic feet and therefore the sharing the same indoor airspace test applies.

While simple on its face, on a practical level this new test means that unless an infected person goes into his/her/their private office, shuts the door, and doesn’t come out for more than 15 minutes that day, everyone on the floor is a close contact if they spend a cumulative total of 15+ minutes outside their own private office at the same time as the infected person. So employees on completely different sides of the office floor – who do not interact or even see each other – could still be close contacts.

Given the practical difficulties of timing / monitoring employees’ movements, some employers might find it simpler to treat everyone on the entire office floor as a close contact. But this means additional costs and administrative headaches because of the testing, face covering, and notice requirements (more on those below).

2. Despite AB 2693’s new worksite posting option for COVID-19 exposure notices, the New Regulations continue to require individualized close contact notices

On September 29, Governor Gavin Newsom signed AB 2693 into law, revising and extending the existing obligation for employers to notify workers of potential exposure to COVID-19 in the workplace. As of January 1, 2023, California employers must continue to notify employees of COVID-19 exposure in the workplace, but can satisfy that notification obligation by prominently displaying a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted.

As we noted in our previous blog post, the New Regulation’s close contact notification requirement does not incorporate Labor Code section 6409.6 (the new worksite posting option). In other words, while employers can satisfy their COVID-19 worksite exposure notice obligation by posting a notice, they still need to individually notify all employees and contractors who had a close contact. And as discussed above, for office floors of 400,000 cubic feet or less, employers face an expanded close contact population. Employers should be prepared to send plenty of close contact notices.

3. Important questions remain unanswered

Cal/OSHA has promised, but not yet published, FAQs addressing the New Regulations. In the meantime, many unanswered questions remain.

  • Partially enclosed spaces: The New Regulations note that offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.  But the New Regulations don’t say if this applies to spaces that have three floor to ceiling walls, but an open fourth side, or that do not have a closing door or divider, so that air effectively can move from one room to the other.  Most lunch rooms / cafeterias don’t have doors. And if they do, they are usually left open. 
  • Open office doors: Must the office doors be closed to count as separate airspaces? If the door is left open for 15+ minutes, does that office become part of the common area shared airspace?
  • Impact of face coverings: Like the ETS, the New Regulations limit the size of the “exposed group” (and by extension, an outbreak determination) when employees wear face coverings in common areas. Does this exception also apply to the New Regulations’ close contact definition? Common sense says it should, but a plain reading of the regulations suggests it doesn’t.
  • Hallways: For the purpose of determining the “exposed group,” the New Regulations don’t consider a place where people momentarily pass through, without congregating, a work location, working area, or common area. Can employers also exclude these areas from the “same indoor airspace” for the purpose of determining close contacts? The regulations suggest not, but why the inconsistency?

Hopefully Cal/OSHA’s FAQs will provide some clarity. In the meantime, for help with the Cal/OSHA COVID-19 Non-Emergency Regulations or any of your other employment needs, contact your Baker McKenzie employment attorney.

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It’s been a demanding year in New York for employers. New York employers have had to continuously pivot to meet obligations under new laws and requirements in 2022, with no end in sight as we step into 2023. From New York’s new electronic monitoring law, to New York City’s salary and pay range disclosure requirements, to the newly-delayed enforcement of NYC’s automated employment decision tools law (a brief sigh of relief for employers), new laws are certain to make for a busy 2023 for New York employers. Here are 10 changes employers should know now as we get the ball rolling in 2023.

1. NYC Employers Using Automated Employment Decision Tools Now Have Until April 15, 2023 to Meet New Obligations  

The New York City Department of Consumer and Worker Protection (DCWP) granted New York City employers a happy holiday by announcing a delay of enforcement of its automated employment decision tools law (Local Law 144 of 2021) until April 15, 2023.

Until the announcement, New York City employers who use artificial intelligence in employment decision-making were faced with new requirements beginning January 1, 2023–including a prohibition against using automated employment decision tools (AEDTs) unless they took a number of specific steps prior to doing so, not the least of which would be conducting a bias audit of their AEDTs.

Proposed Rules

On December 15, 2022, DCWP published revised proposed rules for Local Law 144, making several changes to initial proposed rules published by DCWP September 23, 2022.

The initial proposed rules defined or clarified some terms (including “independent auditor,” “candidate for employment,” and “AEDT”), set forth the form and requirements of the bias audit, and provided guidance on notice requirements. 

After comments from the public on the initial proposed rules, and after a November 4, 2022 public hearing, the DCWP modified the proposed rules, with changes including:

  • Modifying the definition of AEDT (according to DCWP, “to ensure it is focused”);
  • Clarifying that an “independent auditor” may not be employed or have a financial interest in an employer or employment agency seeking to use or continue to use an AEDT, or in a vendor that developed or distributed the AEDT;
  • Revising the required calculation to be performed where an AEDT scores candidates;
  • Clarifying that the required “impact ratio” must be calculated separately to compare sex categories, race/ethnicity categories, and intersectional categories;
  • Clarifying the types of data that may be used to conduct a bias audit;
  • Clarifying that multiple employers using the same AEDT can rely upon the same bias audit as long as they provide historical data (if available) for the independent auditor to consider in such bias audit; and
  • Clarifying that an AEDT may not be used if its most recent bias audit is more than one year old.

DCWP will hold a second public hearing on the proposed rules on January 23, 2022.

For more on the law, see our recent blog Happy Holidays! Enforcement of New York City’s Automated Employment Decision Tools Law Delayed to April 15, 2023.

2. New York Employers with “No Fault” Attendance Policies Subject to Penalties for Disciplining Employees Who Take Protected Leave

Beginning February 20, 2023, New York employers with absence control policies who discipline employees for taking protected leave under any federal, state or local law will be subject to penalties.

Signed by Governor Kathy Hochul on November 21, 2022, S1958A (which amends Section 215 of the New York Labor Law (NYLL)) targets employer policies that attempt to control employee absences by assessing points or “demerits” or docking time from a leave bank when an employee is absent, regardless of whether or not the absence is permissible under applicable law. The amendment prohibits employers in New York from taking these actions when employees take a legally protected absence. Though the law does not prohibit attendance policies that include a penalty point system, legally protected absences cannot be used to deduct from these point systems.

Employers are prohibited from retaliating or discriminating against any employee that makes a complaint that the employer violated the law, and violations can come with sizable penalties. In addition to enforcement by the New York State Department of Labor (NYSDOL), NYLL Section 215 provides a private cause of action for current and former employees to recover monetary damages from employers who have violated Section 215. Monetary damages include back pay, liquidated damages and attorneys’ fees in addition to civil penalties that can be issued by NYSDOL of up to $10,000 for the first violation and $20,000 for repeat violations.

Employer Takeaways

  • Employers who currently have policies that assess points or demerits against employees for taking absences under applicable law should review and update the policies to be compliant with the law.
  • Employers should train HR professionals, managers and supervisors on the new law.

3. Employers Must Provide Pay Ranges in Job Postings under New York City Pay Transparency Law Now–and under New York State Pay Transparency Law Beginning September 17, 2023

New York City employers are already feeling the impact of having to meet the requirements of New York City’s new pay transparency law (Local Law 32 and its amendment), which went into effect on November 1, 2022. Now, employers all across New York State will also have to comply with salary transparency requirements. Governor Hochul signed New York State’s salary transparency bill (S9427A) into law on December 21, 2022. Employers should begin to prepare now for the law’s September 17, 2023 effective date.

Covered employers

New York City’s law requires New York City employers with four or more employees (with at least one working in New York City) to disclose salary and hourly ranges in any advertisements for jobs, promotions, or transfer opportunities. (See our prior blogs here and here–and for a deeper look at salary and pay range disclosure requirements in job postings across the US, watch our video Employers: All Eyes on Salary and Pay Range Disclosure in US Job Postings).

Similar to New York City’s law, New York State’s law also requires employers with four or more employees to include a compensation range in all advertisements for new jobs, promotions and transfer opportunities. It’s not clear at this time whether all four employees must be employed within New York State, or whether an employer is covered even if employees are located elsewhere. The New York Department of Labor (NYDOL) is authorized to promulgate regulations to clarify the law, and it is anticipated that guidance will be issued before the law’s effective date.

Employment agencies and recruiters–but not temporary employment agencies–are also covered by each law.

Continue Reading Top 10 New York Employment Law Updates: Closing Out 2022 and Heading Into 2023

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Join us for our webinar series, “2023: Discussion on The New Legal Restructuring Landscape in Europe,” providing an overview of the regulatory and commercial issues to consider when contemplating restructuring across multiple jurisdictions against the backdrop of today’s political and economic climate, both locally and globally.

In our three-part webinar series, UK and US moderators welcome colleagues from around Europe to share the latest labor and employment law updates and trends affecting workforce transformation and disruption. We will look at the differences and similarities in the legal restructuring process across Austria, Germany, Italy, France, the Netherlands, Switzerland, Poland, Spain, Sweden, the UK and the US, the potential legal remedies in each jurisdiction and the practical steps employers can take to keep the business running.

Please follow the registration links below to register for each of the 60-minute sessions you are interested in attending. Once registered, you will receive your Zoom log-in details via email separately for each session. Should you encounter any issues during your registration or log-in process, please contact Jana Hanysova for assistance.

SESSION 1
Workforce Transformation and Disruption: Deep Dive Central Europe–Germany, Austria and Switzerland
Wednesday, January 18, 2023
BROADCAST OPTION 1
10:00 am GMT (London), 11:00 am CET (Frankfurt), 6:00 pm SGT (Singapore)
BROADCAST OPTION 2
8:00 am PST (Los Angeles), 10:00 am CST (Chicago), 4:00 pm GMT (London), 5:00 pm CET (Frankfurt)
Register for Option 1 or Option 2.

SESSION 2
Workforce Transformation and Disruption: Deep Dive Southern Europe–Italy, Spain and France
Wednesday, January 25, 2023
BROADCAST OPTION 1
10:00 am GMT (London), 11:00 am CET (Frankfurt), 6:00 pm SGT (Singapore)
BROADCAST OPTION 2
8:00 am PST (Los Angeles), 10:00 am CST (Chicago), 4:00 pm GMT (London), 5:00 pm CET (Frankfurt)
Register for Option 1 or Option 2.

SESSION 3
Workforce Transformation and Disruption: Deep Dive Northern Europe–Poland, Netherlands and Sweden
Wednesday, February 1, 2023
BROADCAST OPTION 1
10:00 am GMT (London), 11:00 am CET (Frankfurt), 6:00 pm SGT (Singapore)
BROADCAST OPTION 2
8:00 am PST (Los Angeles), 10:00 am CST (Chicago), 4:00 pm GMT (London), 5:00 pm CET (Frankfurt)
Register for Option 1 or Option 2.

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We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of immigration and mobility alerts from around the world.

Please click here to view.

 

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As we head into 2023, all eyes are on salary and pay range requirements in US job postings — where these laws apply, what they require, and when they come into effect.

In this latest video, our Labor & Employment lawyers explain what employers need to know about US laws requiring salary and pay range disclosures in job postings including important differences from location to location, questions and concerns, and practical takeaways.

While the trend has continued, the landscape has drastically changed since we shared our May 2022 video, The Proliferation of Pay Transparency Laws. Consider this your update!

Click here to watch the video.

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The New York City Department of Consumer and Worker Protection (DCWP) has granted New York City employers a happy holiday, indeed. The Department just announced it will delay the enforcement of its automated employment decision tools law (Local Law 144 of 2021) until April 15, 2023, and is planning a second public hearing due to the high volume of public comments.

Why is this good news for New York City employers?

Until the announcement, New York City employers who use artificial intelligence in employment decision-making were faced with new requirements beginning January 1, 2023–including a prohibition against using automated employment decision tools (AEDTs) unless they took a number of specific steps prior to doing so, not the least of which would be conducting a bias audit of their AEDTs. (See our prior video chat Artificial Intelligence in Recruitment and Hiring: Checking Your Blind Spots, where we discussed Local Law 144 and other recent AI laws employers should be aware of.)

Specifically, Local Law 144 requires employers to: (1) subject AEDTs to a bias audit within one year of its use; (2) ensure that the results of such audits are publicly available; (3) provide particular notices to job candidates regarding the employer’s use of these tools; and (4) allow candidates or employees to potentially request alternative evaluation processes as an accommodation.

What are AEDTs?

Good question. The DCWP proposed rules on September 23, 2022 that would clarify what an AEDT is (as well as expand upon Local Law 144 and regulate the use of AEDTs). Under the proposed rules, an AEDT likely includes any computerized tool or algorithm-based software program used to identify, select, evaluate, or recruit candidates for any employment position.

It may include data-driven tools used to review résumés, rank applicants, “chat” with applicants, assess employee performance and productivity, monitor field-based or remote employees, or determine compensation and promotions. The proposed rules exclude from the definition “analytical tools that translate or transcribe existing text,” e.g., convert a resume from a PDF or transcribe a video or audio interview.

What’s required for the bias audit?

The proposed rules set forth the minimum requirements for a bias audit of an AEDT, which include: (1) calculating the “selection rate” for each race/ethnicity and sex category that is required to be reported to the Equal Employment Opportunity Commission pursuant to the EEO 1 Component report; and (2) calculating the “impact ratio” for each such category. The proposed rules define “selection rate” as the “rate at which individuals in a category are either selected to move forward in the hiring process or assigned a classification by an AEDT,” and “impact ratio” as either: (1) the selection rate for a category divided by the selection rate of the most selected category; or (2) the average score of all individuals in a category divided by the average score of individuals in the highest scoring category.

In addition, the proposed rules indicate that an intersectional analysis (an analysis of the impact rate for ethnicity and sex combined, in addition to each protected category independently) must be conducted.

However, with a delayed enforcement date and the likelihood of a second public hearing, the current proposed rules may be revised. Employers should keep close watch and check back here for developments.

What should New York City employers do now?

There are some steps employers should consider to get a head-start on the enforcement of Local Law 144. Employers using AEDTs within New York City should:

  • Review Local Law 144 and the current proposed rules;
  • Assess what categories of automated tools and technologies the employer uses in its workplace decision-making schemes, and work with counsel to determine how the law applies;
  • Ensure that required notices are effectively provided and that the employer will be able to comply with independent bias audit requirements;
  • Review the employer’s practices regarding data retention; and
  • Work with third-party vendors to ensure their compliance with the new law, as necessary, and make any desired updates to service agreements.

For help preparing for enforcement of Local Law 144 or any of your other employment needs, contact your Baker McKenzie employment attorney.

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The new year always brings new challenges for employers, but California employers in particular face a world of change in 2023.

In our 75-minute “quick hits” format, we help you track what California employers need to keep top-of-mind for 2023 and provide practical takeaways to help you navigate the new landscape.

This webinar helps to keep California in-house counsel up to speed on the top employment law developments of 2022 and to prepare them for what’s on the horizon for 2023.

Among other topics, we discuss:

  • What’s hot right now, including best practices for meeting your obligations under California’s salary and pay range disclosure law (SB 1162), and salary and pay range disclosure trends across the US
  • What employers should know about the landscape of California arbitration agreements, including updates on AB 51 and the Viking River Cruises v. Moriana case
  • How employers can prepare for the California Privacy Rights Act (CPRA) amendments to the California Consumer Privacy Act (CCPA)

Apply our Annual California Employer Update Takeaways Checklist to help your organization’s leadership prepare for some of the most important employment law developments in 2023.

Click here to view the webinar recording.

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In our latest Global Immigration and Mobility video chat, Melissa Allchin provides a year-end review of essential immigration and mobility updates for employers. Melissa highlights equal pay transparency laws and the impact on an employer’s obligations under existing immigration law, COVID-related travel considerations, immigration compliance considerations employers should keep top-of-mind with respect to remote or hybrid work, and the impact on employees’ immigration status when employers restructure or conduct reductions in force.

This video chat is part of our Annual California Employer Update webinar, “Reflecting on 2022 and Strategizing for 2023.” To view the full program click here.

Click here to watch the video.