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We are pleased to share a recent SHRM article, “What’s at Stake in the Supreme Court’s OSHA Vaccine-or-Testing Case,” with quotes from Robin Samuel. The U.S. Supreme Court will hear oral arguments January 7 on whether the Occupational Safety and Health Administration (OSHA) overstepped its authority when it issued an emergency temporary standard (ETS) requiring employers with at least 100 employees to mandate vaccinations or masks and weekly testing for workers.

Click here to view the article.

This article was originally published in SHRM.

 

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We are pleased to share a recent Bloomberg Law article, “Gig Economy Companies Brace for Crucial Year as Challenges Mount,” with commentary from Mike Brewer. The article discusses the gig economy facing another year of upheaval as the Biden administration eyes actions to address worker rights, court battles continuing to play out across the country, and more states confronting ongoing disputes about drivers’ employment status.

Click here to view the article.

Originally featured in Bloomberg Law.

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Many thanks to Lothar Determann and Jonathan Tam for this post.

Some of your job applicants and employees in California may be alarmed if you tell them you sell their personal information. But you will have to say you sell their personal information if you disclose their personal information to third parties after January 1, 2022 without including certain data processing clauses in your contracts, as required by the California Consumer Privacy Act (CCPA). So we recommend reviewing these contracts to ensure they include the prescribed clauses if you wish to avoid being a “seller” of personal information.

You should also get ready to field data access, deletion, correction, portability and other requests from your employees and other personnel in California starting January 1, 2023. This will require implementing new protocols and training up your human resources and compliance teams. We also recommend tightening up your data retention and deletion protocols to limit the amount of information you have to review when handling data subject requests.

Do you use employee monitoring software or algorithms to help you evaluate job applicants? You should ensure that your use of these and similar tools address upcoming requirements regarding automated decision-making, risk assessments and the use of sensitive personal information. Note that the CCPA also currently requires employers to issue privacy notices to their California employees pursuant to a California Privacy Rights Act (CPRA) amendment that took effect on December 16, 2020.

There is an HR exception under the CCPA but it is not comprehensive and expires January 1, 2023. When the CCPA originally passed in 2018, it included a limited, temporary carve-out for personal information of job applicants, employees, independent contractors and other personnel, who only needed to receive a brief “notice at collection.” The CPRA extended the limited carve-out until January 1, 2023 and immediately expanded the list of disclosures that employers have to provide to employees and candidates at or before the time of collecting their personal information.[1] Such “notices at collection” must include details about the types of personal information collected, the purposes for which the information is collected, and how long the personal information is retained or the criteria for determining the same. The California Attorney General’s CCPA Regulations also require notices at collection to indicate whether the business sells California residents’ personal information and a notice of the their right to opt-out of sales if so, and a link to the business’s privacy policy.[2] You should begin to address these requirements immediately if you have not done so already.

Continue Reading Employers Must Prepare Now For New California Employee Privacy Rights

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It could be a hectic start to 2022 for some Chicago and Cook County employers. On January 3, 2022, Mayor Lightfoot’s Public Health Order 2021-2 and the Cook County Department of Public Health’s Public Health Order 2021-11  took effect, mandating proof of full vaccination (two weeks after the second dose of the Pfizer or Moderna vaccine, or two weeks after a single dose of the Johnson & Johnson vaccine) for patrons age five and older before they can enjoy certain public establishments.

Though the Orders are largely patron-focused (and employees are likely not “patrons” under the Orders), businesses in Chicago and Cook County will also need to comply with the Orders’ requirements that employers ensure employees are fully vaccinated or produce weekly negative COVID-19 tests.

Here’s what Chicago and Cook County employers need to know now.

Which establishments are covered?

  • Establishments where food or beverages are served, including but not limited to restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, dining areas of grocery stores, breweries, wineries, distilleries, banquet halls, and hotel ballrooms
  • Gyms and fitness venues, including but not limited to gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes
  • Entertainment and recreation venues in areas where food or beverages are served, including but not limited to movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers

What if you own a restaurant that only provides carry out? You won’t need to check the vaccination status of every patron coming in to grab food and go. Individuals entering an establishment for less than 10 minutes for the purpose of ordering and carrying out food, making a delivery, or using the bathroom are exempted. In addition, there are other exemptions, including for individuals who have previously received a medical or religious exemption as long as they provide the establishment proof of the exemption and a COVID-19 test administered by a medical professional within the last 72 hours prior to entering the establishment.

Continue Reading Chicago and Cook County Employers: Ring in the New Year with New COVID Requirements for Patrons and Employees

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On December 15, 2021, the New York City Council approved a bill that will require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York City. The Mayor has until January 14, 2022 (30 days) to approve or veto the bill. Alternatively, the bill will also go into effect if the Mayor does not affirmatively approve or deny the bill by January 14, 2022.

If the bill becomes law, it will:

  • Make it an unlawful discriminatory practice to not include in job listings the minimum and maximum salary offered for any position located within New York City.
  • Require employers to provide the minimum and maximum salary for any position located within New York City. Notably, the bill provides that this range may extend from the lowest to the highest salary that the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.
  • The bill will take effect 120 days after it becomes law.

The NYC Commission on Human Rights will be authorized to promulgate rules to implement the new bill. We will continue to monitor and report on developments.

Proliferation of Pay Transparency Laws

With the increased focus on equal pay for equal work, there is a nationwide trend of legislation imposing pay transparency requirements on employers. (We first reported on this trend last year.) These laws can include wage range disclosure obligations and can vary greatly in terms of where, when, how and to whom required disclosures must be made. Here are several notable laws to know:

  • California: requires employers to provide job applicants with the salary or hourly wage ranges for positions upon the applicant’s reasonable request, provided the applicant has completed an initial interview with the employer. (Effective January 1, 2018)
  • Colorado: requires employers disclose the pay, or pay range, of a position in the job posting itself. (Effective January 1, 2021)
  • Connecticut: requires disclosure of wage ranges even if the applicant or employee has not expressly requested such information. Specifically, Connecticut employers must provide prospective employees with wage range information before or at the time an offer of compensation is made, or at the applicant’s request, whichever occurs first, and must also provide employees with wage range information upon hire, upon a change in the employee’s position, or upon the employee’s first request for such information. (Effective October 1, 2021)
  • Maryland: requires that employers provide a job applicant with the wage range for the position for which the applicant applied upon request. (Effective October 1, 2020)
  • Rhode Island: requires an employer to provide a wage range for job positions. Upon an applicant’s request, an employer must provide the wage range for the open position. (Effective January 1, 2023)
  • Washington: requires employers provide the wage scale or salary range for the position upon a job applicant or employee’s request, provided the request is made after an initial offer of employment. (Effective July 28, 2019)
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Special thanks to Brian Wydajewski, Narendra Acharya, Aimee Soodan, Tulsi Karamchandani, Scott McMillen, Angelique Poret-Kahn, Ginger Partee, John Foerster and Matthew Gorman.

Our two-part webinar series, 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 2021 and are prepared for what’s on the horizon in 2022.

Using our “quick hits” format, we provide two content-rich presentations complete with practical takeaways in 75 minutes per session.

With a focus on Labor & Employment developments, among other topics, presenters for Part 1 explore:

  • the latest in COVID-19 laws and developments affecting employers, and practical tips for implementing necessary changes and managing implications for your workforce
  • the changing terrain of restrictive covenants in Illinois, the US and globally, and best practices to keep your company protected
  • how pay equity laws, including new cutting-edge laws from several countries, are impacting employers’ local and global strategies

Apply our Annual Illinois Employer Update Part 1 Takeaways Checklist: Going into 2022 to help your organization’s leadership prepare for some of the most important employment law developments in 2022.

Click here to view the webinar recording.

Covering issues that are top-of-mind for companies in both Compensation & Benefits and Global Immigration & Mobility, presenters for Part 2 review:

  • the current landscape of restrictive covenants and equity awards
  • an update on the newest developments and “hot topics” in global compensation issues
  • post-COVID business travel, including an update on international travel rules and an outlook on sponsoring visas for workers in the US
  • immigration related considerations of remote / hybrid work arrangements on US employers

Apply our Annual Illinois Employer Update Part 2 Takeaways Checklist: Going into 2022 to help your organization’s leadership prepare for some of the most important employment law developments in 2022.

Click here to view the webinar recordings.

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Special thanks to Jessica Nall, Lothar Determann and Teresa Michaud. 

If your last name starts with A-G, you are probably well aware that your CLE compliance deadline is right around the corner – February 1, 2022. In addition to the general credit, the state of California requires all attorneys to complete:

  • At least four hours of legal ethics
  • At least one hour on competence issues
  • At least one hour on the elimination of bias in the legal profession and society

On January 6 our lawyers will offer three virtual sessions to help you meet this goal.

Please click here to view the sessions and register. We look forward to your participation.

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On December 15, New York City released guidance on the new private sector COVID-19 vaccine mandate set to take effect on December 27. The new order is the strictest in that nation and comes amid omicron’s emergence, delta’s severity and the holiday season. Below, we provide answers to the key questions NYC employers may have to ensure compliance with the mandate.

Which NYC employers are covered by the mandate?

The mandate applies to any non-governmental entity that employs more than one person in NYC or maintains or operates a workplace in NYC (a Covered Entity), regardless of its industry. “Workplace” is defined as any place where work is performed in the presence of another worker or a member of the public, including vehicles. Self-employed individuals and sole proprietors are not covered by the mandate unless they work at a NYC workplace or interact in person with other workers or members of the public as part of their job duties.

What workers are covered?

Employers must collect proof of vaccination from all full- or part-time employees, interns, volunteers, or contractors. The mandate includes exemptions for those who:

  1.  Work remotely full-time
  2. Only enter the workplace for a quick and limited purpose,
  3. Are performing artists or athletes who are not required to be vaccinated per the Key to NYC program, or
  4. Are granted a reasonable accommodation based on their religion or medical condition.

Purposes characterized as “quick and limited” include using the bathroom, making a delivery, or receiving an assignment before leaving to begin a solitary assignment.

Continue Reading NYC Mandates the Jab for Private Employers | What Employers Need to Know About the Detailed Guidance Unveiled December 15

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To mitigate against a 47% increase in the seven-day average COVID-19 case rate and a 14% increase in hospitalizations, Governor Gavin Newsom announced the return of an indoor mask mandate — which will apply irrespective of vaccine status in many locations — starting December 15 and lasting until January 15. California is implementing this change because of the rapid spread of the Omicron variant and increased travel and mixing of households during the holiday season.

So, just as things were starting to relax a bit in some parts of the state, the California Department of Public Health mask mandate once again tightens up face covering requirements for California employers. What do California employers need to know now?

Who & Where: A number of California counties — including Los Angeles, Ventura, Sacramento, and most of the San Francisco Bay Area – already have their own indoor mask mandates that were implemented in the summer and have no end dates. The new mandate does not supersede these existing orders, and thus will primarily change things for employers in San Diego County, Orange County, the Inland Empire, swaths of the Central Valley, and rural Northern California.

What & When: California employers must comply with the new order by requiring both employees and customers to wear masks in all indoor public settings, irrespective of vaccine status, from December 15, 2021 to January 15, 2021.

In addition to masking, the state will now require those without proof of vaccination attending events with more than 1,000 people to show proof of a negative COVID-19 test within one day. The previous guidelines required a test within 72 hours. The state will also recommend those who travel in or out of California get tested for COVID-19 within three to five days.

What else are employers asking?

Some employers have questioned whether the mandate covers office settings where workers are 100% vaccinated. The answer is: “it depends.”

On Tuesday afternoon, the CDPH clarified that the new indoor mask mandate only applies to local jurisdictions that do not already have an existing mask requirement in place as of December 13, 2021. Thus, for example, because San Francisco already has an indoor mask mandate that allows stable cohorts of 100% vaccinated people to forego masks in indoor settings like workspaces and gyms, the CDPH clarification enables employers in San Francisco to continue allowing their fully vaccinated stable cohorts to go without masks if they otherwise meet the requirements of the San Francisco health order. (In the Bay Area, Alameda, Contra Costa, Marin and Sonoma counties have adopted similar exemptions and thus the same analysis applies.) Note that some counties and cities with mask mandates do not permit vaccinated persons to forgo masks indoors, and in such locations, the local order applies, but vaccinated employees must still wear masks.

Continue Reading Breaking News – Mask Up California! New Statewide Mandate Effective December 15

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

Please click here to view.