Workforce Bulletin

The State of Texas infrequently regulates the workplace. This summer, however, Texas enacted two notable workplace laws about which employers should be aware.

Texas Regulatory Consistency Act

On June 13, 2023, Governor Greg Abbott signed House Bill 2127, the Texas Regulatory Consistency Act (the “Act” or “H.B. 2127”), which amends various Texas statutory codes, including the Labor Code, and preempts local lawmaking in various statutorily governed areas to assert Texas’s “sovereign regulatory powers.” Referred to by its opponents as the “Death Star Bill,” the Act is slated to take effect on September 1, 2023, and effectively prevents cities and counties from passing local ordinances beyond the scope of existing state laws in numerous fields of regulation, including labor and employment, agriculture, and finance.

As we previously reported, on July 5, 2023, the New York City Department of Consumer and Worker Protection (DCWP) began enforcing Local Law 144 of 2021 (the “Law”) regulating the use of automated employment decision tools (AEDT).  In preparation for the July 5 enforcement date, last week, the DCWP published Frequently Asked Questions (FAQ) concerning the use of AEDTs on its fact page for the Law.  The FAQ contain an overview of the Law and general information and guidance regarding bias audit requirements, data requirements, independent auditors, responsibility for bias audits, notice requirements, and complaints.

As explained in the FAQ, the Law applies to employers and employment agencies that use AEDT:

The Supreme Court delivered its highly anticipated consolidated decision yesterday in the two affirmative action cases on its docket, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (collectively, the “SFFA” cases). At issue in the SFFA cases is whether Harvard and the University of North Carolina (“UNC”) violate the Equal Protection Clause of the Fourteenth Amendment (and, in turn, Title VI of the Civil Rights Act of 1964) in their consideration of race in their admissions processes. In answering this question in the affirmative, the Court’s majority opinion significantly restricts – and, some would argue, eliminates – affirmative action programs in higher education.

On June 29, 2023, the Supreme Court of the United States issued three opinions. Of them, Groff v. DeJoy ("Groff”),in which the Court unanimously revised the standard for determining whether accommodating an employee’s religious beliefs would constitute an “undue hardship” under Title VII of the Civil Rights Act of 1964 (“Title VII”), will have the most immediate impact on employers. In Groff, the Court held that employers cannot deny a religious accommodation by demonstrating that it would result in only more than a de minimis cost, but rather must demonstrate that it would result in a substantial cost.

Governor Jared Polis recently signed into law legislation (SB 23-105 or the “Amendments”) that will soon change Colorado employers’ disclosure and notice requirements under the state’s Equal Pay for Equal Work Act (“Act”).

As we previously reported, in addition to prohibiting sex-based wage discrimination, the Act requires all employers, regardless of where they are located, with at least one Colorado-based employee to (1) notify their Colorado-based employees of internal opportunities for promotion and (2) disclose salary and benefits information in job postings for all positions that are or can be performed in Colorado. The Amendments modify the Act by:

As featured in #WorkforceWednesday:  This week, we’re analyzing New York State’s proposed noncompete ban:

New York State’s noncompete ban has passed both houses of the state legislature and now awaits Governor Kathy Hochul’s signature. Epstein Becker Green attorney David J. Clark details how this proposed ban would affect employers and reveals how noncompete bans have become a growing trend throughout the country.

Michigan is the latest state to expand its legal definition of race as a protected class to include hairstyle descriptors. As we recently explained, legislation with the acronym for “Creating a Respectful and Open Work for Natural Hair” is intended to protect from discrimination individuals with hairstyles often associated with race.

On June 15, 2023, Governor Gretchen Whitmer signed Michigan’s version of the CROWN Act – S.B. 90 – into law, once again amending the state’s increasingly broad anti-discrimination statute, the Elliott-Larsen Civil Rights Act (“ELCRA”). The Michigan CROWN Act represents the third amendment to ELCRA this year: prohibitions on discrimination based on sexual orientation, gender identity, and gender expression were added in March, and protections for individuals who have an abortion were provided by amendments enacted in May.

Many employers commonly ignore requests from the New Jersey Division of Unemployment and Temporary Disability Insurance (“Division”) to provide the reason they terminated an employee’s employment.  With the recent amendments to the state’s Unemployment Compensation Law (UCL), effective July 31, 2023 (the Amendments), employers should rethink that practice.  This, among other changes to the UCL, should dramatically alter the way employers deal with New Jersey unemployment compensation claims.

Summarized below are key takeaways from the Amendments.

The first of the year brought with it new pay transparency obligations for employers in several states, including Rhode Island, California, and Washington.  Halfway through the year, this type of legislation remains a focus for legislators from coast to coast, including in jurisdictions like Colorado, where similar laws are already on the books. While these proposed laws are all generally rooted in pay equity principles, their substantive differences and sheer volume raise serious questions for employers looking to recruit, hire, and retain talented employees across the country.

As featured in #WorkforceWednesday:  This week, we’re recapping the last year of the Dobbs decision:

June 24, 2023, marks exactly one year since the widely controversial Dobbs v. Jackson Women’s Health Organization decision by the United States Supreme Court (SCOTUS).

Epstein Becker Green attorneys Susan Gross Sholinsky, Delia A. Deschaine, and Lucas Peterhans examine the impact this far-reaching SCOTUS decision has had on employee benefit plans and workplace policies, discrimination, and health care regulatory compliance.