Workforce Bulletin

Columbus has joined Toledo, Cincinnati, and a number of states and locales around the country, in banning employers from asking job applicants about their salary history.

Effective March 1, 2024, covered employers in Ohio’s capital will be prohibited from:

• inquiring about an applicant’s salary history,
• screening applicants based on their salary history,
• relying solely on salary history when deciding whether to offer an applicant employment or determining their compensation, and
• retaliating against applicants for not disclosing their salary history.

Salary History

Currently, neither the federal Fair Labor Standards Act (FLSA) nor the Equal Pay Act (EPA) prohibit employers from screening applicants based on prior salary, requesting an applicant’s salary history, or conditioning an applicant’s employment on providing their salary history. However, salary history bans, which are intended to eliminate the perpetuation of discriminatory pay disparities, have become increasingly common both at the state and local level. As of April 2023, more than 40 states and localities have adopted some form a salary history ban.

As featured in #WorkforceWednesday:  This week, we unpack the major updates the New York State Department of Labor (NYSDOL) incorporated into its model sexual harassment prevention policy:

The NYSDOL recently released major updates to its model sexual harassment prevention policy. The updates cover issues such as gender identity and remote work. What do employers need to know?

On Tuesday, April 25, 2023, the Equal Employment Opportunity Commission (“EEOC”), Consumer Financial Protection Bureau (“CFPB”), Justice Department’s Civil Rights Division (“DOJ”), and the Federal Trade Commission (“FTC”) issued a “Joint Statement on Enforcement Efforts Against Discrimination and Bias in Automated System” (“Joint Statement”).  According to a press release from the EEOC, by the Joint Statement, the federal agencies pledged to uphold America’s commitment to the core principles of fairness, equality, and justice as emerging automated systems, including those sometimes marketed as “artificial intelligence,” or “AI,” become increasingly common in people’s daily lives – impacting civil rights, fair competition, consumer protection, and equal opportunity.

As featured in #WorkforceWednesday:  This week, we bring you our special Spilling Secrets podcast series on the future of non-compete and trade secrets law:

The inevitable disclosure doctrine, expected to be a widely used tool to protect trade secrets after the famous PepsiCo, Inc. v. Redmond case in 1995, has not been as commonly employed as anticipated. But is the legal landscape about to change?

As featured in #WorkforceWednesday:  This week, we examine the decision of a Texas district court to strike down an Affordable Care Act (ACA) mandate on preventive medical services and look at the U.S. Department of Justice’s (DOJ’s) third trial loss in prosecuting wage-fixing and no-poach agreements. We also discuss the recent termination of the COVID-19 national emergency and the upcoming end of emergency benefits for employers on May 11, 2023.

Organizations that successfully create an inclusive and positive culture understand that all of its people have an important role to play in maintaining a harassment-free workplace. Any incident of harassment can affect more than just the parties directly involved, and all employees are responsible for helping to maintain a working environment that is free from harassment, discrimination, and other inappropriate conduct.

Ensuring that employees understand their role as bystanders to potential incidents is vital to creating a safe and inclusive culture, and in some jurisdictions, providing such training is mandatory.

This post will explain what it means to be a “bystander” and review three key reasons why bystander intervention training can help your organization prevent workplace harassment. 

What Is a Bystander?

Whenever a potentially inappropriate interaction between two individuals occurs, any third party who either directly witnesses the behavior or learns of it later becomes a “bystander”—that is, not a target or an offender, but a witness, whether direct or indirect. For example, someone who overhears inappropriately gratuitous commentary directed at a co-worker in an adjoining office could be a direct witness. An indirect witness might be a colleague in whom someone who is feeling harassed confides that they are feeling uncomfortable with a co-worker’s remarks or actions.

On April 6, 2023, the New York City Department of Consumer and Worker Protection (“DCWP”) issued a Notice of Adoption of Final Rule to implement Local Law 144 of 2021, legislation regarding automated employment decision tools (“AEDT Law”).  DCWP also announced that it will begin enforcement of the AEDT Law and Final Rule on July 5, 2023.   Pursuant to the AEDT Law, an employer or employment agency that uses an automated employment decision tool (“AEDT”) in NYC to screen a candidate or employee for an employment decision must subject the tool to a bias audit within one year of the tool’s use, make information about the bias audit publicly available, and provide notice of the use of the tool to employees or job candidates.

As featured in #WorkforceWednesday:  This week, we examine how several recent pronouncements and actions by the National Labor Relations Board (NLRB) and its General Counsel’s office are creating new challenges for employers, both union and non-union.

Organizations everywhere have recognized the importance of eliminating workplace harassment. From decreased productivity to higher turnover, the impact of workplace harassment can be monumental and even shake an entire business to its core. It is critical that your organization take the right steps to eliminate workplace harassment. Let’s take a look at three common mistakes organizations make in their harassment prevention initiatives. 

1. Inadequate Training

If harassment prevention training is lackluster or not administered properly, its impact will be minuscule. Employees should receive regular, updated training to stay informed of harassment laws and policies in their jurisdiction and in their particular workplace. In many jurisdictions, annual training is required, but even where it is not, it is critical that your organization be proactive and continue to train its employees in order to realize the full benefits.

As featured in #WorkforceWednesday:  This week, we’re showcasing the National Labor Relations Board (NLRB) General Counsel’s memo on non-disparagement and confidentiality provisions in severance agreements, Illinois’ new law permitting Illinois employees to take paid leave “for any reason,” and New Jersey’s upcoming implementation of the “Temporary Workers’ Bill of Rights.”