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On March 24, 2022, Governor Jay Inslee signed into law Engrossed Substitute House Bill 1795, also known as the Silenced No More Act, which expands worker protection in Washington State. More specifically, it prohibits employers from requiring or requesting that workers sign agreements containing nondisclosure or non-disparagement provisions restricting their right to discuss factual information regarding illegal discrimination, harassment, sexual assault, retaliation, wage and hour violations, or any other conduct “that is recognized as against a clear mandate of public policy.”  Washington State’s Silenced No More Act will go into effect on June 9, 2022.

While other states such as California, New York, and Illinois have enacted similar NDA-narrowing laws covering different forms of employment discrimination, Washington’s new law is arguably the most restrictive. For instance, New York, California, and Illinois prohibit nondisclosure provisions related to unlawful discrimination in settlement agreements unless an employee wants such confidentiality. Washington State, however, takes it a step further by barring confidentiality clauses even if requested by the employee (as defined by the Act). As another example, New York law still permits nondisclosure clauses in pre-employment and severance agreements, but Washington’s law applies broadly to any agreement between the employer and “employee” as defined in the Act, including independent contractors not typically protected by EEO laws.

While Washington is the most recent state to pass a law on this subject, it may not be the last. The movement to prohibit secrecy covenants is gaining traction as workers’ advocates push for legislation at both the state and federal level banning the use of such covenants.

Prohibited Agreements

The newly-added section to Chapter 49.44 of the Revised Code of Washington provides that “a provision in an agreement between an employer and employee not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee reasonably believed to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy is void and unenforceable.” The Act broadly defines “employee” to include current, former, and prospective employees, as well as independent contractors; and encompasses all work-related conduct, whether occurring in the workplace or off-site.

Continue Reading Washington State Takes Aim At Workplace NDAs Under Its Silenced No More Act

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Join us for a four-part webinar series as our US moderators welcome colleagues from around the globe to share the latest labor and employment law updates and trends. US-based multinational employers with business operations in Europe, the Americas, the Middle East and Africa, and Asia Pacific regions will hear directly from local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

In each 60-minute discussion, we will explore:

  • The impact of the current social and political climate on multinational employers
  • New significant legislative developments
  • Inclusion and diversity (I&D) advancements and trends
  • Best practices for a flexible workforce, addressing remote and hybrid work

We look forward to welcoming you at the sessions relevant to your business — no passport necessary!

To view the complete roster of presenters for each regional program, click here.

EUROPE
France, Germany, the Netherlands, Spain and the UK
Wednesday, June 1, 2022
9 am PT/ 12 pm ET
Click here to register.

THE AMERICAS
Argentina, Brazil, Canada, Colombia and Mexico
Wednesday, June 8, 2022
9 am PT/ 12 pm ET
Click here to register.

THE MIDDLE EAST AND AFRICA
Saudi Arabia, South Africa, Turkey and the UAE
Wednesday, June 15, 2022
9 am PT/ 12 pm ET
Click here to register.

ASIA PACIFIC
Australia, China, Japan, the Philippines and Singapore
Wednesday, June 22, 2022
3 pm PT/ 6 pm ET
Click here to register.

To view these programs in a different time zone, click here.
Please “register” for a copy of the recording and materials if you are unable to attend live.

CLE Accreditation

Each program is approved for 1.0 general California CLE credit, 1.0 general Illinois CLE credit, 1.0 areas of professional practice New York CLE credit, and 1.0 general Texas CLE credit. Participants requesting CLE for other states will receive Uniform CLE Certificates. Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for both experienced and newly admitted New York attorneys. Baker & McKenzie LLP is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE.

Each 1-hour activity can be applied towards the 9 Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Ontario.

**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.

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Many thanks to our colleagues in London, Yindi Gesinde, moderator, and Monica Kurnatowska, for co-presenting.

Moving the Dial on Inclusion & Diversity in Your Organization

Creating a diverse and inclusive workforce remains a business imperative for global employers. Despite stakeholder and social pressure to accelerate progress, many companies have been unable to move the dial towards greater equality and diverse representation in the workplace. Stubborn I&D challenges are showing no sign of disappearing of their own accord.

A campaign to improve diversity must be fought on many fronts. Join our panel of Inclusion & Diversity experts on May 11th as they discuss the findings of our recent Mind the Gap Survey and the steps diversity and HR leaders are taking to accelerate I&D progress and the challenges they are encountering.

Guest Speaker: Dr. Stefanie Johnson

Best-selling author Dr. Stefanie Johnson studies the intersection of leadership and diversity, focusing on (1) how unconscious bias affects the evaluation of leaders and (2) strategies that leaders can use to mitigate bias. Dr. Johnson works with the best companies in the world to create more inclusive leaders, including presenting her work at the White House for a summit on diversity in corporate America on National Equal Pay Day.

Her latest Wall Street Journal best-selling book, Inclusify: Harnessing the Power of Uniqueness and Belonging to Build Innovative Teams, shares the surprising ways the leaders undermine inclusion and provides actionable ways that leaders can pivot to build more inclusive teams.

Wednesday, May 11 | 90 minutes
8:00 am PST (Los Angeles) / 10:00 am CST (Chicago) /
4:00 pm GMT (London) / 5:00 pm CET (Frankfurt)

Click here to register.

Continuing Education Credit | Approved for 1.5 elimination of bias California CLE credit, 1.5 diversity and inclusion Illinois CLE credit, 1.5 areas of diversity, inclusion and elimination of bias New York CLE credit. Pending approval for 1.5 ethics Texas CLE credit. Participants requesting CLE for other states will receive Uniform CLE Certificates. Baker & McKenzie LLP is a California and Illinois CLE approved provider. Baker & McKenzie LLP has been certified by the New York State CLE Board as an accredited provider in the state of New York. This program is appropriate for experienced New York attorneys only. Baker & McKenzie LLP is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE.

This 1 hour and 30-minute program has been applied for EDI credit under the Law Society of Ontario. Approval pending.

**While CLE credit may be pre-approved in certain jurisdictions, final CLE accreditation approval is anticipated, but not guaranteed.

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We are pleased to share a recent Bloomberg Law article, “How Employers Can Keep ‘Me Too’ Evidence From the Jury,” which provides guidance for employers to keep “me too” evidence—not to be confused with the #MeToo movement—out of trial. This evidence, which is from parties not involved in the litigation, can taint the jury and must be vigorously dealt with before trial, they say.

Click here to view the article.

Originally published in Bloomberg Law.

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The latest version of our signature handbook, The Global Employer: Focus on Global Immigration and Mobility, is now available in an easy-to-search e-version.

Bookmark our site today to review the large scale global immigration, employment, compensation and tax issues related to the movement of employees across 40 jurisdictions* directly from your desktop.

Click here to access now.

For support accessing the new site, questions, or to request bulk access for additional colleagues, contact us.

*Jurisdiction chapters available for Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, China, Colombia, Czech Republic, France, Germany, Hong Kong, Hungary, India, Republic of Indonesia, Israel, Italy, Japan, Kazakhstan, Luxembourg, Malaysia, Mexico, Myanmar, The Netherlands, Peru, Philippines, Poland, Russia, Singapore, Spain, Sweden, Switzerland, Taiwan, Turkey, Ukraine, United Kingdom, United States, Venezuela and  Vietnam.

Global Employment & Compensation Resource Suite

Looking for additional resources to ensure your HR and legal counsel remain up-to-date on the latest employment law regulations globally?

Access our Global Employment & Compensation Practice Group’s full digital library of legal content on-demand.

The Global Employment & Compensation Resource Suite is a self-service database that provides our clients with 24/7 access to our global employment resources. Once registered, users can browse our range of Global Employer Handbooks, 30+ Jurisdictional Guides, Blogs and Media, and Legal Updates.

Click here to request access.

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Employers across the U.S. are requiring employees to return to the brick and-mortar workplace as COVID-19 cases drop, and they are looking forward to having employees work together again face to face.

But employers beware: employees have had little in-person interaction with their colleagues over the past two years, and some employees who were onboarded during the pandemic have only met their coworkers virtually.

Employees returning in-person may be rusty when it comes to interacting with others in the same physical space, increasing the risk that lines will be crossed into inappropriate or unlawful behavior.

What should employers do as employees return to the office to try to keep claims of discrimination and harassment to a minimum?

Click here to continue reading this Article.

Original article published in Law360.

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On April 1, a state court judge in Los Angeles ruled that the California law (AB 979) mandating publicly traded companies include people from underrepresented communities on their boards violates the California Constitution. We initially reported on AB 979 here, noting that it was the first law of its kind in the US and was the second time California sought to mandate diversification of public company boards through legislation. In 2018, the first piece of California legislation (SB 826) aimed at increasing gender diversity; in 2020, AB 979 sought to increase diversity from underrepresented communities.

AB 979

The 2020 law requires publicly held corporations headquartered in California to include at least one person on their boards from an underrepresented community by the end of last year, with additional appointments required in future years. People from underrepresented communities are defined as anyone who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian or Alaska Native, or who self-identifies as gay, lesbian, bisexual or transgender.

Under AB 979, the California Secretary of State must report annually on companies’ compliance with the law and may impose fines of $100,000 for an initial violation and $300,000 for each subsequent violation.

Continue Reading California’s Board Diversity Law Struck Down in State Court, But Movement for Inclusion and Diversity on Boards Persists

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Many thanks to our colleague in London, Julia Wilson, for co-presenting.

 

An influx of high profile whistleblowing cases have made headlines in recent years, and claims (and awards) are on the rise. At the same time, more defined and greater protections for whistleblowers are coming into play in the US, UK and European Union.

It’s essential that multinational employers be aware of the whistleblower regulations proliferating across the globe and the notable differences between regimes.

In this Quick Chat video, our Labor and Employment lawyers provide an overview of the changing landscape of whistleblower protections in the US, UK and EU.

Click here to watch the video.

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New state and federal limits on post-employment restrictive covenants mean employers must stay on top of more than just vaccination policies or the logistics of office reopenings. The swath of new and on-the-horizon legislation aimed at limiting the enforceability of post-employment non-compete agreements deserves employers’ attention too. Part One of our blog post series on restrictive covenants addressed the intersection of remote work and state non-compete laws. Now, in Part Two, we summarize recent updates to state non-compete laws, pending state legislation that could impact non-competes, and new federal-level activity aimed at limiting non-competes.

State Updates

  • Colorado

Colorado recently raised the stakes for violations of its non-compete law. Effective March 1, 2022, under SB 21-271, a person who violates Colorado’s non-compete statute commits a class 2 misdemeanor.

Colorado’s non-compete statute (C.R.S. section 8-2-113) voids agreements that restrict trade, such as non-competition and non-solicitation of customers covenants, unless they fall within a specific statutory exception: (i) a contract for the purchase or sale of a business or its assets; (ii) a contract for protecting trade secrets; (iii) a contract provision recovering education or training expenses associated with an employee who has been with an employer for less than two years; or (iv) a restriction on executive or management personnel or each of their professional staff. As of March 1, 2022, a person who violates this statute commits a class 2 misdemeanor punishable by up to 120 days in jail and / or a fine of up to $750.

Many questions remain about the enforcement of this amendment, such as who will face ultimate liability for the employer (e.g., in-house counsel, HR staff, line managers, etc.). And though there is no indication that the new law is retroactive, Colorado employers were subject to criminal penalties for a violation of Colorado’s non-compete law even prior to SB 21-271 being passed, under C.R.S. section 8-2-115. SB 21-271 repealed C.R.S. section 8-2-115 while simultaneously inserting language into the non-compete statute itself making a violation a class 2 misdemeanor. It remains to be seen whether this is simple statutory consolidation, or a signal that Colorado plans to increase enforcement of violations of its non-compete statute. Employers should review their non-compete agreements and internal policies regarding which employees are required to sign such agreements to make sure they are in compliance with this new law.

Continue Reading The Only Constant is Change: Recent (and Potential) Changes in State and Federal Non-Compete Legislation

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On March 30, Governor Jay Inslee signed SB 5761, amending the Washington Equal Pay and Opportunity Act, to require all employers with 15 or more employees to disclose the wage scale or salary range along with a general description of all benefits and other compensation in every job posting. Beginning January 1, 2023, many Washington employers must make affirmative compensation-based disclosures to both applicants and employees.

With this requirement, Washington joins Colorado (read more here) and New York City (read more here) in mandating such public disclosures in job postings. While a number of other states (e.g. California, Connecticut, Maryland and Rhode Island) require disclosure of salary information to job applicants at various points during the hiring process, this law is more far-reaching as it requires public disclosure.

SB 5761

SB 5761 revises a 2019 amendment to Washington’s 2018 Equal Pay and Opportunities Act (EPOA) that was added to include protections for applicants for employment, transfer, or promotion, expanding the EPOA’s purview beyond current employees. Per the 2019 amendment, the law required disclosure of wage scale and salary range information to applicants only upon request. As explained above, the new law requires affirmative disclosure of wage, salary, and benefit information in job postings, however, it leaves unchanged an employer’s requirement to provide the same information to employees offered new positions or promotions within the company only when requested.

Defined Terms

“Posting” is broadly defined under the new law to include both written and electronic job solicitations. Specifically, “posting” is defined as “any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.”

Neither “wage scale or salary range” or “benefits and all other compensation” are defined or described. Hopefully, future guidance from the state will address these open issues.

Violations

Under the EPOA, job applicants and employees may be entitled to certain damages and other remedies, potentially including reasonable attorneys’ fees and costs, for violations of the statute.

Takeaways

Because the EPOA Amendments only define high-level requirements, the Washington State Department of Labor & Industries (L&I) will likely issue further guidance. We will continue to update our readers on developments.

In the meantime, here are several things employers should keep in mind:

  • Multi-state employers should consider a national policy for salary transparency given the growing number of jurisdictions requiring salary transparency.
  • Set (or review) standard salary ranges for all existing positions. Along those lines, consider an internal audit with counsel of current employee salaries to make sure there are no significant discrepancies or inequities. Equal pay claims are on the rise and this is a good time to review how you determine salary and the relevant factors you rely on for determining compensation.
  • Develop a process for consistently publishing information in connection with internal and external job postings.
  • Beyond just job postings, review any other related human resources documents (e.g., job descriptions and compensation policies) to ensure that any salary representations are consistent with the salary range set for a given position.
  • Last, be sure to train supervisors, managers, compliance personnel and human resources professionals on the implications of the new law.