Workforce Bulletin

On Friday, September 23, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) released a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to its Automated Employment Decision Tool law (the “AEDT Law”), which goes into effect on January 1, 2023. As we previously wrote, the City passed the AEDT Law to regulate employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions; as written, however, it contains many ambiguities, which has left covered employers with open questions about compliance.

On July 13, 2022, the Massachusetts Appeals Court signaled a victory for Massachusetts employers who rely upon independent contractors.  In Tiger Home Inspection, Inc. v. Dir. of the Dep’t of Unemployment, the Appeals Court reversed decisions from the Department of Unemployment (“DUA”) and trial court, concluding that the inspectors were independent contractors under Massachusetts’s Unemployment Insurance statute (“Unemployment Law”) and, thus, ineligible for unemployment benefits.  Focusing on Prongs A and C of the Unemployment Law’s “ABC” test for classifying independent contractors, the Appeals Court provided employers with excellent precedent and concrete guidance for navigating those elements of the test.  Notably, the Unemployment Law’s ABC language largely tracks the Massachusetts Wage Act’s “ABC” test, with Prongs A and C using identical language.  As a result, Tiger Home Inspection arguably provides employers with much-needed clarity for navigating both statutes.

On September 20, 2022, Mayor Eric Adams announced that New York City’s COVID-19 vaccine mandate for private employers is ending.  The City’s mandate for municipal employees, however, will remain in effect.

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.

With the final quarter of 2022 approaching, New York employers should be aware of the changes to the New York Paid Family Leave (“Paid Family Leave”) program set to take effect in 2023. Employers can expect an increase on the weekly benefits cap, as well as a decrease in the employee contribution rate.

Beginning in 2018 and increasing in benefits over the past few years, the Paid Family Leave program provides eligible employees with up to 12 weeks of job-protected, partially-paid time off to bond with a new child, care for a family member with a serious health condition, or to provide assistance when a family member is deployed abroad on active military service. As we previously reported, New York expanded the program’s definition of “family member” to include “siblings,” which will take effect on January 1, 2023. “Sibling” includes biological or adopted siblings, half-siblings, and step-siblings.

The California legislature has presented S.B. 1162 (“the Bill”) to Governor Gavin Newsom. If the Governor signs the Bill into law, California will follow the lead of jurisdictions like Colorado and New York City by requiring many employers to include pay scales in job postings. The Bill would also impose pay equity reporting requirements, not just on large employers obligated to do so under federal law, but on any private employer with 100 or more employees, including those whose “employees” are hired through labor contractors. Those reports will also have to include breakdowns of aggregate data not previously collected.

As featured in #WorkforceWednesday:  This week, we look at labor law and pay developments from the National Labor Relations Board (NLRB) and in California.

California’s Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA) give consumers substantial rights regarding the disclosure and use of their personal information collected by businesses subject to the law. Significantly, CCPA/CPRA define the term “consumer” to mean any California resident. This broad definition extends not only a business’s individual customers, but also its employees, job-applicants and even its business-to-business (B2B) contacts. We have previously discussed the compliance requirements of these data privacy laws on organizations doing business in California, and the moratoriums for B2B and employee/applicant data that that the Legislature had put in place exempting covered businesses from complying with certain requirements of the laws.[1] Unless extended by the Legislature (which appears unlikely) or preempted by federal privacy legislation (which appears even more unlikely), the moratoriums will sunset on January 1, 2023. Accordingly, covered businesses should begin  preparing now to meet their upcoming expanded statutory obligations to protect consumers data privacy.

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.

On August 16, 2022, in Williams v. Kincaid, the Fourth Circuit held that gender dysphoria can qualify as a disability under the Americans with Disabilities Act (the “ADA”).  This is the first federal appellate decision which extends the ADA’s protections to transgender people experiencing gender dysphoria and it will have a significant impact on all entities covered by the ADA, including employers (covered by Title I of the ADA), and public accommodations (covered by Title III of the ADA). Prior to this holding, several of the district courts have come down both ways on the issue.