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Implementation status and background to the directive 

The European Whistleblowing Directive (WBD) was supposed to be implemented by the European Union’s 27 member states by no later than December 17, 2021, impacting employers with operations in those jurisdictions.

One year on from this deadline, despite the European Commission (EC) commencing infringement procedures against those countries that had failed to implement the WBD in January 2022, we are still waiting for 14 EU member states to do so.  While legislation is still awaited in a number of jurisdictions, we are now in a much better position to see the challenges the WBD poses for global employers.

This article looks at what those key challenges are and the unique support we can offer in helping global employers harmonize their global approach to managing whistleblowing reports within the prescriptive requirements of the WBD. For further practical insights into WBD compliance see our white paper “EU Whistleblowing Directive: Act Now to make your Whistleblowing Program compliant“.

Click here to continue reading.

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This year has started with a bang for Illinois employers. Days into 2023, the legislature passed the Paid Leave for All Workers Act (the “Act”), which would require Illinois employers to provide most employees with a minimum of 40 hours of paid leave per year to be used for any reason at all–not just for sick leave. Governor Pritzker has announced he looks forward to signing the legislation. If he does, Illinois will join Maine and Nevada and become the third state to require paid leave for employers for “any” reason. If signed, the bill will take effect January 1, 2024, and will apply to all employers with at least one employee working in Illinois.

Here’s what Illinois employers need to know now.

Who is covered–and who is not

Under the Act, an employee who works in Illinois is entitled to earn and use up to a minimum of 40 hours of paid leave (or a pro rata number of hours) during a 12- month period.

The Act looks to the Illinois Wage Payment and Collection Act to define “employer” and “employee” (with some additions and carve-outs), but essentially applies to all employers with at least one employee in Illinois and employees in Illinois with some notable exceptions:

  • Independent contractors under Illinois law
  • Individuals who meet the definition of “employee” under the federal Railroad Unemployment Insurance Act or the Railway Labor Act
  • College or university students who work part time and on a temporary basis for the college at which they are enrolled
  • Individuals who work for an institution of higher learning for less than two consecutive calendar quarters and who do not have an expectation that they will be rehired by the same institution
  • Employees working in the construction industry covered by bona fide collective bargaining agreements (CBAs)
  • Employees covered by CBAs with an employer that provides services nationally and internationally of delivery, pickup and transportation of parcels, documents, and freight.

Also, the Act does not apply to any employer that is covered by a municipal or county ordinance in effect on the effective date of the Act that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Thus, for instance, employers covered by the Chicago Paid Sick Leave Ordinance or Cook County Earned Sick Leave Ordinance won’t be required to provide paid leave under the Act.

When and how paid leave accrues under the Act

Paid leave accrues for employees at the rate of one hour of paid leave for every 40 hours worked, up to a minimum of 40 hours of paid leave per 12-month period (or a greater amount if the employer chooses to provide more than 40 hours of leave).

An employee would begin to earn paid leave on their first day of their employment (or the first day of the 12-month period, see below)–or on the effective date of the Act, whichever is later.

Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA) will be deemed to work 40 hours in each workweek for purposes of paid leave accrual unless their regular workweek is less than 40 hours, in which case paid leave accrues on a pro-rata basis based on the employee’s regular workweek.

The “12-month period”

The 12-month period can be any consecutive 12-month period designated by the employer in writing at the time of the employee’s hire.

The employer can change the 12-month period if the employer gives notice to employees in writing prior to the change, and the change does not reduce the eligible accrual rate and paid leave available to the employee. If the employer changes the designated 12-month period, the employer must provide employees with documentation of the balance of their hours worked, paid leave accrued and taken, and their remaining paid leave balance.

Employees can start using paid leave after 90 days of employment (or the Act’s effective date)

Employees can begin using paid leave 90 days after the commencement of their employment or 90 days following the effective date of the Act, whichever is later-but employers can allow employees to use paid leave earlier.

Employees determine how much paid leave they need to use, but employers can set a reasonable minimum increment for the use of paid leave not to exceed 2 hours per day. If an employee’s scheduled workday is less than 2 hours a day, the employee’s scheduled workday will be used to determine the amount of paid leave.

Continue Reading Illinois on Verge of Requiring Employers to Provide 40 Hours of Paid Leave for “Any Purpose”
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Special thanks to Bradford Newman and Nandu Machiraju.

Employers have been keeping a close watch for rulemaking and action by the Federal Trade Commission (FTC) restricting non-competes. Earlier this month, the FTC answered the Executive Order’s call with enforcement activities and a proposed rule signaling a considerable effort to prioritize employer-employee non-compete covenants as an area for increased enforcement.

In this video, our Labor & Employment, Antitrust & Competition and Trade Secrets lawyers discuss the FTC’s proposed rule and enforcement activity, what it means for employers, and what employers can do now to protect their trade secrets in light of what may be coming from the FTC.

Click here to watch the video.

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Special thanks to Scott McMillen.

Looking Ahead: Exploring the Key Themes and Recommendations for US and Global Employers in 2023

Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing employment, compensation and mobility law landscape — in Illinois, across the US, and globally.
 
This webinar, co-hosted by the Association of Corporate Counsel – Chicago Chapter, is designed to ensure that Midwest in-house counsel are up to speed on the top developments of 2022 and are prepared for what’s on the horizon in 2023.

This content-rich 90-minute presentation provides practical takeaways, covering the latest developments in employment, compensation and mobility, including:

  • Protecting your trade secrets in the US and globally
  • Trends in salary disclosure laws in the US and abroad
  • The NLRB: Where things stand and what to expect in 2023
  • Employment litigation trends for the year ahead
  • Significant new developments affecting equity awards in 2023
  • Equity compensation trends and best practices for public and private companies
  • Essential updates from an immigration and mobility perspective, from international travel to I-9 completion

Apply our Annual Illinois Employer Update Takeaways Checklist to help your organization’s leadership prepare for some of the most important developments in employment, compensation, and immigration and mobility in 2023.

Click here to view the webinar recording.

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With concerns intensifying about an economic downturn, unfortunately some layoffs or other reductions-in-force may be necessary for employers to weather the storm. 

What’s different now as opposed to early-on in the pandemic? Because of the ups and downs in the market, and phenomena like the “great resignation” and remote work on a scale never seen before, there is a greater likelihood that more employers will find themselves potentially triggering the Worker Adjustment and Retraining Notification Act of 1988 (WARN Act) (and analogous state laws, known as state “mini-WARN acts”). These statutes impose differing notice and information obligations, which can be tricky to keep track of, and carry potentially heavy penalties for noncompliance.

In this latest video, our Labor & Employment lawyers share tips and “WARN-ings” for employers to keep in mind as they strategize with counsel.

Click here to watch the video.

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Special thanks to presenters:  Jennifer Bernardo, Jeremy Hann, Andrew Shaw, Ajanthana Anandarajah, Dave Bushuev, Matthew De Lio, Rono Khan, Junaid Malik & Juliette Mestre.

The new year brings new challenges for employers. Join us as we take stock of changes over the last year and strategize for what’s on the horizon. 

In our 75-minute “quick hits” format, we’ll help Canadian in-house counsel and human resources leaders track what to keep top-of-mind for 2023. We’ll also provide practical takeaways to help navigate the new landscape.

Among other topics, we will cover:

  • COVID-19 case law updates on vaccinations, masking and workplace health and safety policies
  • Terminations, reductions in force and ways to reduce employer liability in a changing economy
  • Changes to public sector wage caps in Ontario
  • A selection of cross-Canada legislative changes including:
    • Working for Workers (again) in Ontario
    • Paid Sick Leave in BC
    • French Language and Privacy amendments in Quebec
  • Immigration – The solution to labour shortages in a post COVID-19 world?

Date: Wednesday, February 1

Time: 10:00 am to 11:15 am ET

We look forward to connecting with you!

Click here to register for the webinar.

Also presenting: Sarah Adler.

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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