Hunton Employment & Labor Perspectives

On December 21, 2022, New York Governor Kathy Hochul signed New York State’s pay transparency bill into law.  Effective September 17, 2023, the new law will require employers to disclose the anticipated compensation range for any advertised job posting.  See N.Y. Lab. Law § 194-b.

As we reported in September, effective January 1, 2023, employers face a host of pay disclosure and recordkeeping obligations.  The DLSE, the agency in charge of implementing the new law (codified at California Labor Code section 432.3), recently published guidance on the parameters of the new law.

In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964.  At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off.  The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns. 

As employers know, the federal government’s New Year’s resolutions often do not make employers’ lives easier. The following are recent developments of which employers should be aware. 

The U.S. Supreme Court agreed to hear a case that will impact how employers across the country respond to their employees’ requests for religious accommodation. Depending on how the Court rules, it may become much more difficult for companies to comply with or deny religious accommodations under Title VII of the Civil Rights Act of 1964.

The Court of Appeals for the D.C. Circuit has recently revived a portion of an election rule promulgated by the NLRB during the Trump administration.  In 2019, the NLRB promulgated an election rule which modified several “quickie” election procedures established by the NLRB during the Obama administration in 2014.  The 2014 Rule sped up the union election timeframe, and the 2019 Rule aimed to address criticisms that the timeframe was too short a time in which to meet the various new obligations triggered by the filing of a union representation petition while also adequately preparing for the representation hearing. The AFL-CIO sued in 2020 to block the 2019 Rule.

HuntonAK Labor and Employment partner Emily Burkhardt Vicente was named as a 2022 “Go-To Thought Leader” by the National Law Review.

Among the new employment laws in effect this new year is the expansion of the California Fair Employment and Housing Act (“FEHA”) to include “reproductive health decision-making” in the list of classifications protected by the FEHA.  Accordingly, the FEHA now expressly prohibits discrimination, harassment, and retaliation based on employees’ reproductive health-decision-making.  The FEHA also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decision-making.

As part of the bill funding the federal government, President Biden signed into law the Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act (PUMP Act). These relatively unknown laws are important pieces of legislation carrying with them significant changes to the workplace for pregnant employees.

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a notice of proposed rulemaking (“NPRM”) that would “provide that it is an unfair method of competition – and therefore a violation of Section 5 [of the FTC Act] – for an employer to enter into or attempt to enter into a non-compete clause with a worker; [or to] maintain with a worker a non-compete clause . . .”  If this rule becomes final, it would effectively prohibit employers from entering into non-compete agreements—as broadly defined by the proposed rule—with their workers.