2022 Labor & Employment Law Developments Tracker

Practical Law Practice Note w-036-7743 (Approx. 65 pages)

2022 Labor & Employment Law Developments Tracker

by Practical Law Labor & Employment

What's New

December 30, 2022: A Sacramento County Superior Court judge issued a temporary restraining order blocking the California Department of Industrial Relations from implementing provisions of Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act). The temporary restraining order comes in response to a lawsuit by a consortium of small and large restaurants seeking to have the provisions of AB 257 put to a ballot referendum as part of the 2024 election cycle. The court requested party briefs and set a hearing for January 13, 2023. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
December 30, 2022: New York Governor Hochul signed S. 9149 into law, which provides that Workers' Compensation Board determinations must not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination that an employer-employee relationship exists. The law takes taking immediate effect. (See Law Firm Publication by Fisher Phillips LLP.)
December 29, 2022: President Biden signed H.R. 2617, the Consolidated Appropriations Act, 2023, which includes:
- the Pregnant Workers Fairness Act (PWFA), containing requirements regarding reasonable accommodations related to pregnancy; and
- the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act), amending the FLSA to address breastfeeding accommodations in the workplace (29 U.S.C. § 218D).
The PWFA is effective 180 days after enactment. Certain portions of the PUMP for Nursing Mothers Act are effective immediately (Sections 102(a), Expanding Employee Access to Break Time and Space, and 102(c), Authorizing Employees to Temporarily Obscure the Field of View of an Image Recording Device on a Locomotive or Rolling Stock While Expressing Breast Milk), while another provision is effective 120 after enactment (Section 102(b), Clarifying Remedies).
December 28, 2022: The Executive Office of the President published Executive Order 14061, Adjustments of Certain Rates of Pay (86 Fed. Reg. 73601 (Dec. 29, 2022)).
December 27, 2022: The California Division of Labor Standards Enforcement updated the California Equal Pay Act FAQs to answer questions and provide clarification on California's new pay transparency requirement for job postings, effective January 1, 2023 (see
Law Firm Publication
by Fisher Phillips).
December 27, 2022: Puerto Rico passed the Fair Internships Act, Act No. 114-2022, seeking to protect students and recent graduates by guaranteeing paid internships and establishing other legal rights for interns (see
Law Firm Publication
by Jackson Lewis P.C.).
December 23, 2022: President Biden signed the National Defense Authorization Act, 2023, which included the Fair Hiring in Banking Act. The new law further eases bank hiring restrictions for individuals with certain criminal histories and is effective January 1, 2023. (NDAA, 2023, § 5705, PL 117-263, Dec. 23, 2022.)
December 23, 2022: New York Governor Hochul signed A. 6328A into law, taking immediate effect. The law adds citizenship and immigration status to the list of protected categories under the New York State Human Rights Law. The law prohibits employers from discriminating, harassing, or retaliating against any individual because of their citizenship or immigration status. "Citizenship or immigration status" is defined as "citizenship of any person or the immigration status of any person who is not a citizen of the United States." For more information on New York's anti-discrimination law, see Practice Note, New York State Human Rights Law (NYSHRL) Basics; for more on federal anti-discrimination law, see Practice Note, Discrimination Under IRCA: Basics.
December 21, 2022: Governor Hochul signed the Warehouse Worker Protection Act (S. 8922A/A. 10020A), which protects warehouse distribution workers from undisclosed or unlawful work speed quotas and those who fail to meet unlawful quotas. For more information, see Practice Note, New York Employment Laws More Favorable to Employees.
December 21, 2022: Governor Hochul signed S. 9427A into law, taking effect on September 17, 2023. The law requires employers with four or more employees to include the compensation or its range for any job advertisement that can or will be performed, at least in part, in New York. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
December 19, 2022: Vermont Governor Phil Scott announced that the Vermont Family and Medical Leave Insurance Plan would roll out for state workers in 2023 and expand to private employers in 2024. The program is voluntary in the private sector and will provide Vermont workers with 60% wage replacement for up to six weeks of work in a 12-month period for qualifying events. (See
Law Firm Publication
by Jackson Lewis P.C.)
December 16, 2022: New York Governor Hochul signed S. 6805 amending N.Y. Lab. Law § 201 to require employers to make available electronically any documents that are required to be posted physically in the workplace under the New York Labor Law and under federal law or regulation . For more information, see Practice Note, New York Employment Laws More Favorable to Employees: Workplace Notices.
December 16, 2022: OSHA released a statement regarding the 2021 Census of Fatal Occupational Injuries, which revealed a nearly 9% one-year increase in fatal workplace injuries.
December 15, 2022: In Buero v. Amazon.com Services, Inc., the Oregon Supreme Court held that "just as under federal law, whether time spent waiting for and undergoing mandatory security screenings on an employer's premises is compensable under Oregon law depends on whether the screenings are either (1) an integral and indispensable part of an employee's principal activities or (2) compensable as a matter of contract, custom, or practice" (370 Or. 502 (Or. 2022); see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
December 15, 2022: The DOL announced that it has renewed a memorandum of understanding (MOU) with the IRS to enable the agencies to promote employer compliance with wage and hour laws, and added a streamlined process for joint referrals and coordination to stop business from misclassifying workers and denying workers full wages, benefits, and protections under the law.
December 15, 2022: The Michigan Department of Labor and Economic Opportunity provided guidance on the upcoming changes to the state's minimum wage rates in light of pending litigation regarding minimum wage legislation (see
Law Firm Publication
by Jackson Lewis P.C.).
December 14, 2022: The Massachusetts Department of Family and Medical Leave released a new family and medical leave workplace poster and workplace notification form for employers to provide to employees (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
December 13, 2022: President Biden signed the Respect for Marriage Act (H.R. 8404), guaranteeing marriage equality for same-sex and interracial couples under federal law.
December 9, 2022: New York Governor Hochul signed into law an amendment (S. 4844) to the New York Labor Law expanding the protections for nursing employees effective June 9, 2023 (N.Y. Lab. Law § 206-c). For more information, see Practice Note, New York Employment Laws More Favorable to Employees: Lactation Break Leave and Designated Location for Expressing Breast Milk.
December 9, 2022: NYC Department of Consumer and Worker Protection announced that it was postponing enforcement of its automated decision tools law from January 1, 2023 until April 15, 2023 and will schedule another public hearing on the new law. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
December 7, 2022: President Biden signed the Speak Out Act (S. 4524) (P.L. 117-224) which renders unenforceable predispute confidentiality and nondisparagement clauses regarding a sexual assault or sexual harassment dispute. The Act applies to claims filed on or after December 7, 2022.

Key federal developments are listed within each relevant topic below. For key state and local developments listed by state, see State and Local Developments.

Contracts

For Practical Law resources on this topic, see Employee Hiring and Orientation Toolkit.

Federal Legislation

December 7, 2022: President Biden signed the Speak Out Act (S. 4524) (P.L. 117-224) which renders unenforceable predispute confidentiality and nondisparagement clauses regarding a sexual assault or sexual harassment dispute. The Act applies to claims filed on or after December 7, 2022.
March 3, 2022: On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445), passed with bipartisan support in Congress on February 10, 2022. The law amends the FAA and renders unenforceable, at the claimant's option, predispute arbitration agreements and joint-action waivers regarding sexual assault and sexual harassment disputes. The law became effective immediately and applies to claims arising or accruing on or after March 3, 2022.

US Supreme Court

June 6, 2022: In Sw. Airlines Co. v. Saxon, the US Supreme Court resolved a circuit split and held that airport ramp supervisors are transportation workers engaged in foreign or interstate commerce and their employment contracts are exempt from FAA coverage ( (June 6, 2022)).

Eighth Circuit

August 30, 2022: In Anderson v. Hansen, the Eighth Circuit held, as matter of first impression, that tort claims related to allegations of sexual assault by an independent contractor against an employee at a work conference do not fall within the scope of the employee's mandatory employment arbitration agreement ( (8th Cir. Aug. 30, 2022)).

SEC

August 25, 2022: The SEC announced the adoption of amendments to its rules to require registrants to disclose information reflecting the relationship between executive compensation actually paid by a registrant and the registrant's financial performance. The final rules become effective 30 days after publication in the Federal Register. Registrants must begin complying with the new disclosure requirements in proxy and information statements that must include Item 402 executive compensation disclosure for fiscal years ending on or after December 16, 2022.

Corporate Transactions & Bankruptcy

For more on this topic, see Practice Note, Labor and Employment Issues in Corporate Transactions: Strategic Considerations and Hidden Liabilities.

Discipline & Internal Investigations

For Practical Law resources on this topic, see Conducting Internal Investigations: Addressing Employee Complaints and Compliance Issues Toolkit.

Third Circuit

September 15, 2022: In Canada v. Samuel Grossi & Sons, Inc., the Third Circuit held that an employer's motivation for investigating an employee can be relevant to pretext in a Title VII discrimination case ( (3d Cir. Sept. 15, 2022)).

DC Circuit

September 23, 2022: In Johnston v. S.E.C., the DC Circuit held that two or more individuals could be joint whistleblowers eligible for an incentive award for providing original information to the SEC under 15 U.S.C. § 78u-6 (the Dodd-Frank Act), regardless of who developed the original information ( (2d Cir. Sept. 23, 2022)).

Discrimination, Harassment & Retaliation

For Practical Law resources on this topic, see Sexual Harassment Toolkit, Employee Disability Toolkit, and Employment Litigation: Single Plaintiff Employment Discrimination Toolkit.

Federal Legislation

December 29, 2022: President Biden signed H.R. 2617, the Consolidated Appropriations Act, 2023, which includes:
- the Pregnant Workers Fairness Act (PWFA), containing requirements regarding reasonable accommodations related to pregnancy; and
- the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act), amending the FLSA to address breastfeeding accommodations in the workplace (29 U.S.C. § 218D).
The PWFA is effective 180 days after enactment. Certain portions of the PUMP for Nursing Mothers Act are effective immediately (Sections 102(a), Expanding Employee Access to Break Time and Space, and 102(c), Authorizing Employees to Temporarily Obscure the Field of View of an Image Recording Device on a Locomotive or Rolling Stock While Expressing Breast Milk), while another provision is effective 120 after enactment (Section 102(b), Clarifying Remedies).
December 13, 2022: President Biden signed the Respect for Marriage Act (H.R. 8404), guaranteeing marriage equality for same-sex and interracial couples under federal law.
March 3, 2022: On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445), passed with bipartisan support in Congress on February 10, 2022. The law amends the FAA and renders unenforceable, at the claimant's option, predispute arbitration agreements and joint-action waivers regarding sexual assault and sexual harassment disputes. The law is effective immediately.

US Supreme Court

June 29, 2022: In Torres v. Texas Dep't of Pub. Safety, the Supreme Court held that US states are subject to civil lawsuit under USERRA ( (U.S. June 29, 2022)).
June 27, 2022: In Kennedy v. Bremerton School District, the Supreme Court found that the First Amendment's Free Speech and Free Exercise Clauses protect an individual engaging in prayer from government reprisal. It also dismissed the standard set out in Lemon v. Kurtzman, known as the Lemon Test, which has been used to evaluated potential Establishment Clause violations ( (U.S. June 27, 2022)).
June 24, 2022: In a highly anticipated ruling, the US Supreme Court has held that there is no constitutional right to abortion. The ruling, which overturns Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), has important implications for employers as sponsors of workplace health plans. (Dobbs v. Jackson Women's Health Org., (U.S. June 24, 2022).)
April 28, 2022: In a dispute arising from a physical therapy provider's failure to furnish a plaintiff an American Sign Language (ASL) interpreter, the Supreme Court held that emotional distress damages were not recoverable under Section 1557 of the Affordable Care Act (ACA) or Section 504 of the Rehabilitation Act of 1973 (Cummings v. Premier Rehab Keller, PLLC, (U.S. Apr. 28, 2022)).

Second Circuit

August 12, 2022: In Williams v. MTA Bus Co., the Second Circuit held that an employer is not required to provide an accommodation for a preemployment exam to a disabled job applicant who is not otherwise qualified for the position sought ( (2d Cir. Aug. 12, 2022)).
August 5, 2022: In Murray v. UBS Securities, LLC, the Second Circuit held that retaliatory intent is an element of a Section 1514A Sarbanes-Oxley Act of 2002 (SOX) antiretaliation claim ( (2d Cir. Aug. 5, 2022)).
March 7, 2022: On March 7, 2022, in Felder v. United States Tennis Ass'n, the Second Circuit held, in a matter of first impression for the circuit, that when determining whether an entity is a joint employer in a Title VII case, courts should review non-exhaustive factors derived from the common law of agency, including control over an employee's hiring, firing, training, promotion, discipline, supervision, and handling of records, insurance, and payroll ( (2d Cir. Mar. 7, 2022)).
January 20, 2022: In Estle v. International Business Machines Corp., the Second Circuit held that bringing a collective action is a procedural, not substantive, right under the ADEA and that disclosure requirements for a valid ADEA waiver are inapplicable to waivers of collective actions ( (2d Cir. Jan. 20, 2022)).

Third Circuit

September 15, 2022: In Canada v. Samuel Grossi & Sons, Inc., the Third Circuit held that an employer's motivation for investigating an employee can be relevant to pretext in a Title VII discrimination case ( (3d Cir. Sept. 15, 2022)).
September 14, 2022: In Uronis v. Cabot Oil & Gas Corp., the Third Circuit held that the FLSA's anti-discrimination provision, Section 15(a)(3), applies to employees who have filed, or intend to soon file, a consent to join a collective action ( (3d Cir. Sept. 14, 2022)).
May 25, 2022: In Groff v. DeJoy, the Third Circuit furthered a circuit split by holding that a religious accommodation is not reasonable under Title VII unless it entirely eliminates the conflict between religious practice and work requirements ( (3d Cir. May 25, 2022)).

Fourth Circuit

August 16, 2022: In Williams v. Kincaid, the Fourth Circuit, in a matter of first impression, held that gender dysphoria is protected as a disability under the ADA ( (4th Cir. Aug. 16, 2022)).
August 3, 2022: In a dispute involving employer-sponsored health coverage, a Maryland district court held that a religious employer violated Title VII's prohibition against sex discrimination by revoking health coverage for an employee's same-sex spouse under a health plan exclusion prohibiting coverage for same-sex spouses (Doe v. Catholic Relief Servs., (D. Md. Aug. 3, 2022)).

Seventh Circuit

August 16, 2022: In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit affirmed the grant of summary judgment to Walmart in the EEOC's appeal of the trial court decision that Walmart did not violate the PDA. The Seventh Circuit found the EEOC failed to provide sufficient evidence that Walmart's policy for offering temporary light duty only to workers injured on the job imposed a significant burden on pregnant workers and that Walmart's legitimate, nondiscriminatory rationale for the policy, to comply with Wisconsin's workers' compensation law, was not sufficiently strong to justify the burden. ( (7th Cir. Aug. 16, 2022).)

Eleventh Circuit

November 9, 2022: In Owens v. Governor's Office of Student Achievement, the Eleventh Circuit held, as a matter of first impression, that the Rehabilitation Act requires an employee to provide enough information to allow an employer to understand how a requested accommodation would address her disability's limitations, and that the information the employee provided was insufficient to trigger the employer's duty to accommodate. ( (11thCir. Nov. 9, 2022)).
July 5, 2022: In Patterson v. Georgia Pac., LLC, the Eleventh Circuit held that Title VII provides retaliation protection from their current employer for an individual who opposes the practices of a former employer and that there is no exception to protection from retaliation for a human resource manager who opposes their employer's unlawful conduct ( (11th Cir. June 28, 2022), opinion vacated and superseded for non-substantive reasons, (11th Cir. July 5, 2022)).

DC Circuit

September 23, 2022: In Johnston v. S.E.C., the DC Circuit held that two or more individuals could be joint whistleblowers eligible for an incentive award for providing original information to the SEC under 15 U.S.C. § 78u-6 (the Dodd-Frank Act), regardless of who developed the original information ( (2d Cir. Sept. 23, 2022)).
September 20, 2022: In Webster v. Del Toro, the DC Circuit held that a federal employee may not pursue in court a Title VII retaliation claim identified by the EEOC without first exhausting administrative remedies ( (D.C. Cir. Sept. 20, 2022)).
June 3, 2022: In Chambers v. DC, the DC Circuit overruled the established precedent of Brown v. Brody, holding that an employer that transfers an employee or denies an employee's transfer request because of the employee's race, color, religion, sex, or national origin violates Title VII ( (D.C. Cir. June 3, 2022)).

Executive Office of the President

March 15, 2022: The President issued "Executive Order on Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency."

EEOC

November 10, 2022: The EEOC issued, "Protections Against Employment Discrimination for Service Members and Veterans," describing federal protections for service members and veterans from unlawful employment discrimination.
November 4, 2022: The EEOC seeks public comments on its draft strategic plan for fiscal years 2022-2026. Comments are due December 5, 2022.
October 19, 2022: The EEOC released its updated "Know Your Rights" poster, which updates and replaces the previous "EEO is the Law" poster.
September 29, 2022: The EEOC announced the availability of new data on its website, adding the ability for the public to visualize charges of discrimination filed with the agency by state.
September 27, 2022: The EEOC has published a Notice of Proposed Rulemaking to revise its federal sector complaint processing regulations to provide for the digital transmission of EEO hearing and appellate documents and to address the use of the EEOC's Electronic Public Portal. Comments must be received by November 28, 2022. (87 Fed. Reg. 58469 (Sept. 27, 2022).)
July 25, 2022: The EEOC Office of Field Programs announced a new webpage containing information about its partnership with Tribal Employment Rights Offices to protect the employment rights of Native Americans and Alaskan Natives.
June 27, 2022: The EEOC announced it had added an option to select a nonbinary "X" gender marker during the intake and charge filing process.
May 18, 2022: The EEOC announced that 2021 EEO-1 Component 1 Report(s) are due on June 21, 2022.
May 19, 2022: The EEOC announced that it had issued a new report examining federal workers with disabilities' demographics, hiring, advancement, and separation from employment at federal agencies, discrimination complaints based on disability, and ways that federal agencies are improving accessibility for persons with disabilities.
May 12, 2022: The EEOC announced the release of "The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees," providing guidance for employers and workers about the impact of artificial intelligence and algorithmic fairness and the ADA.
April 12, 2022: The EEOC announced that the 2021 EEO-1 Component 1 data collection is open. The deadline for submitting and certifying 2021 EEO-1 Component 1 Report(s) is May 17, 2022.
March 31, 2022: The EEOC announced that it will add the option to select a nonbinary "X" gender marker during the voluntary self-identification questions that are part of the intake process for filing a discrimination charge.
February 23, 2022: The EEOC published a Final Rule adjusting for inflation the civil monetary penalty for violating the notice posting requirements in Title VII, the ADA, and GINA. The final rule is effective February 23, 2022.
February 2, 2022: The EEOC announced updated 2021 EEO-1 Component 1 procedures for the reporting of client employer data by professional employer organizations, administrative services organizations and human resource outsourcing organizations. For more information see:
- Fact Sheet: 2021 EEO-1 Component 1 Third-Party Human Resource Organization Reporting Procedures; and
- FAQs: 2021 EEO-1 Component 1 Third-Party Human Resource Organization Reporting Procedures.
January 24, 2022: The EEOC announced the release of guidance titled, "Guide to Writing Appeal Briefs for Unrepresented Complainants," intended to assist federal employees and applicants with employment discrimination complaint appeals to the EEOC, including explaining proper content and organization for an appeal brief.
January 19, 2022: The EEOC and the DOL's OFCCP launched the Hiring Initiative to Reimagine Equity (HIRE) a collaborative effort designed to engage stakeholders in expanding job access for workers from underrepresented communities and help address hiring and recruitment challenges. HIRE will identify strategies to remove barriers that limit job opportunities based on race, color, ethnicity, gender, LGBTQ+ status, religion, disability, age, and veteran status.

DOL

December 8, 2022: The DOL announced the addition of five organizations to support, and deliver employment assistance to transitioning service members and their spouses.
April 7, 2022: The DOL has published a Notification of Interpretation to inform the public that, consistent with the US Supreme Court decision, Bostock v. Clayton County, and Title IX of the Education Amendments of 1972, the agency's Civil Rights Center will interpret the prohibition on discrimination on the basis of sex codified in Section 188 of the Workforce Innovation and Opportunity Act to include discrimination based on sexual orientation, gender identity, and transgender status. This notification becomes effective on April 7, 2022. (Notification of Interpretation of Section 188 of the Workforce Innovation and Opportunity Act, 87 Fed. Reg. 20321 (Apr. 7, 2022).)

OFCCP

November 21, 2022: The OFCCP proposed modifications to the agency's compliance review Scheduling Letter and corresponding Itemized Listing data. The deadline to submit comments on the proposed changes is January 20, 2023.
September 29, 2022: The OFCCP announced an extension of the deadline for federal contractors to submit written objections to public disclosure of their EEO-1 Reports to October 19, 2022.
August 26, 2022: OFCCP announced the launch of an online portal to aid contracting officers, contractors, and subcontractors in providing required notices of federal construction contracts and subcontract awards. Under Executive Order 11246, contracting officers and contractors must submit a notice to OFCCP within ten working days of the award of a federal or federally-assisted construction contract or subcontract exceeding $10,000.
August 19, 2022: OFCCP issued a Notice that covered Federal contractors have until September 19, 2022 to object to disclosure to the Center for Investigative Reporting (CIR) of Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO–1 Report), filed by federal contractors from 2016–2020. To facilitate this process, OFCCP has created a Submitter Notice Response Portal. (87 Fed. Reg. 51145 (August 19, 2022).)
August 18, 2022: OFCCP published Directive (DIR) 2022-01 Revision 1 "Advancing Pay Equity Through Compensation Analysis" to provide guidance on how OFCCP will evaluate federal contractors' compliance with compensation analysis obligations and clarify OFCCP's authority to access and review documentation of compensation analyses conducted under 41 C.F.R § 60-2.17(b)(3).
March 31, 2022: OFCCP announced it had issued directive DIR 2022-02 "Effective Compliance Evaluations and Enforcement" to promote effective enforcement and greater federal contractor compliance with equal employment opportunity laws.
March 22, 2022: OFCCP published a Notice of Proposed Rulemaking proposing modification to regulations that detailing agency procedures and standards when issuing pre-enforcement notices and securing compliance through conciliation. The proposal aims to ensure equal employment opportunity; comments must be received by April 21, 2022.
March 15, 2022: OFCCP issued a new directive providing guidance on how it will evaluate federal contractor compliance with annual pay equity audit obligations and clarify the agency's authority to access and review pay equity audits, which aim to prevent pay disparities based on gender, race, or ethnicity.
February 9, 2022: OFCCP published a Notice soliciting comments concerning its proposal to obtain approval from the Office of Management and Budget to renew the information collection that implements standard procedures for supply and service contractors seeking approval to develop affirmative action programs based on functional or business units. Written comments must be submitted on or before April 11, 2022.
January 19, 2022: OFCCP and the EEOC launched the Hiring Initiative to Reimagine Equity (HIRE) a collaborative effort designed to engage stakeholders in expanding job access for workers from underrepresented communities and help address hiring and recruitment challenges. HIRE will identify strategies to remove barriers that limit job opportunities based on race, color, ethnicity, gender, LGBTQ+ status, religion, disability, age, and veteran status.

National Institutes of Health (NIH)

July 9, 2022: The NIH updated its rules requiring recipient institutions to notify the NIH when individuals identified as Program Director, Principal Investigator, or other senior/key personnel in a notice of award of NIH grants are removed from their position or disciplined by the recipient institution for concerns about harassment, bullying, retaliation, or hostile working conditions.

DOJ

May 12, 2022: The DOJ issued "Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring," guidance that explains how algorithms and artificial intelligence can lead to disability discrimination in hiring by state and local government employers.

SEC

September 2, 2022: The SEC published a Final Rule adopting amendments to rules implementing its whistleblower program. The amendments expand the scope of related actions eligible for a whistleblower award and clarify that the SEC may use statutory authority under Section 21F to increase an award but not to decrease an award. This Final Rule is effective October 3, 2022. (87 Fed. Reg. 54140 (September 2, 2022).)
August 26, 2022: On August 26, 2022, the SEC adopted amendments to two whistleblower program rules under Section 21F of the Exchange Act.
- Update: The SEC's adopting release was published in the Federal Register on September 2, 2022. The final rules will become effective on October 3, 2022, and will apply to any award application pending with the SEC as of that date and all future applications.
February 18, 2022: SEC published a Proposed Rule proposing amendments to Rule 21F-3 to address instances when a whistleblower from the SEC's program receives an award from another, non-SEC whistleblower program and Rule 21F-6 to confirm the SEC's authority to consider the dollar amount of a potential award for the limited purposes of increasing an award (see Legal Update, SEC Proposes Amendments to Two Whistleblower Award Program Rules). Comments should be received on or before April 11, 2022.
February 10, 2022: On February 10, 2022, the SEC proposed amendments to two whistleblower program rules under Section 21F of the Exchange Act.

DOE

October 4, 2022: The DOE Office of Civil Rights released a new resource describing protections for students and employees from discrimination based on pregnancy-related conditions under Title IX of the Education Amendments of 1972.

Employee Data, Monitoring & Privacy

For more on this topic, see Practice Note, Privacy in the Employment Relationship.

Department of Transportation (DOT) Federal Railroad Administration (FRA)

February 2, 2022: FRA published a Final Rule that, under the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act), FRA is expanding the scope of its alcohol and drug regulation to cover mechanical employees. This rule is effective March 4, 2022.

Employment Litigation

For Practical Law resources on this topic, see Employment Litigation Discovery Toolkit and Employment Litigation: Single Plaintiff Employment Discrimination Toolkit.

Federal Legislation

December 7, 2022: President Biden signed the Speak Out Act (S. 4524) (P.L. 117-224) which renders unenforceable predispute confidentiality and nondisparagement clauses regarding a sexual assault or sexual harassment dispute. The Act applies to claims filed on or after December 7, 2022.
March 3, 2022: On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445), passed with bipartisan support in Congress on February 10, 2022. The law amends the FAA and renders unenforceable, at the claimant's option, predispute arbitration agreements and joint-action waivers regarding sexual assault and sexual harassment disputes. The law is effective immediately.

US Supreme Court

June 29, 2022: In Torres v. Texas Dep't of Pub. Safety, the Supreme Court held that US states are subject to civil lawsuit under the USERRA ( (U.S. June 29, 2022)).
June 6, 2022: In Sw. Airlines Co. v. Saxon, the US Supreme Court resolved a circuit split and held that airport ramp supervisors are transportation workers engaged in foreign or interstate commerce and their employment contracts are exempt from FAA coverage ( (U.S. June 6, 2022)).
May 23, 2022: In Morgan v. Sundance, Inc., the US Supreme Court held that courts may not create arbitration-specific procedural rules to advance the FAA's policy favoring arbitration. In doing so, the court rejected an Eighth Circuit rule that required a plaintiff to show prejudice when determining if a defendant waived its contracted right to arbitration because it initially pursued litigation instead of arbitration. ( (U.S. May 23, 2022).)
March 31, 2022: In Badgerow v. Walters, the US Supreme Court held that the "look-through" approach to determining federal question jurisdiction for petitions to compel arbitration under Section 4 of the FAA does not apply to requests to confirm or vacate domestic arbitral awards under Sections 9 and 10 of the FAA ( (Mar. 31, 2022)).

First Circuit

November 29, 2022: In Immediato v. Postmates, Inc., the First Circuit held apparently as a matter of first impression that couriers who deliver goods from local restaurants and retailers are not transportation workers exempt from coverage under the Federal Arbitration Act (FAA) ( (1st. Cir. Nov. 29, 2022)). The court held that the couriers are "not actively engaged in the interstate transport of goods"(, at *1, 3).
January 13, 2022: In Waters v. Day & Zimmermann NPS, Inc., the First Circuit held that Federal Rule of Civil Procedure 4(k)(1) is concerned with initial service, not jurisdictional limitations after service, and it does not act as an independent limitation on personal jurisdiction in collective actions ( (1st Cir. Jan. 13, 2022)).

Second Circuit

January 27, 2022: In Samake v. Thunder Lube, Inc., the Second Circuit held that the FLSA limits the automatic operation of unilateral dismissals under Federal Rule of Civil Procedure 41 ( (2d Cir. Jan. 27, 2022)).
January 20, 2022: In Estle v. International Business Machines Corp., the Second Circuit held that bringing a collective action is a procedural, not substantive, right under the ADEA and that disclosure requirements for a valid ADEA waiver are inapplicable to waivers of collective actions ( (2d Cir. Jan. 20, 2022)).

Third Circuit

September 14, 2022: In Uronis v. Cabot Oil & Gas Corp., the Third Circuit held that the FLSA's anti-discrimination provision, Section 15(a)(3), applies to employees who have filed, or intend to soon file, a consent to join a collective action ( (3d Cir. Sept. 14, 2022)).
July 26, 2022: In Fischer v. Fed. Express Corp., the Third Circuit furthered a circuit split by holding that in an FLSA collective action in federal court, where the court lacks general personal jurisdiction over the defendant, all opt-in plaintiffs must establish specific personal jurisdiction over the defendant by demonstrating that their individual claims arise out of or relate to the defendant's minimum contacts with the forum state ( (3d Cir. July 26, 2022)).

Fourth Circuit

August 17, 2022: In Britt v. DeJoy, the Fourth Circuit adopted a rule that a dismissal without prejudice that does not explicitly grant a plaintiff the right to amend its complaint constitutes a final and appealable judgment under 28 U.S.C. § 1291, abandoning the court's "case-by-case methodology" ( (4th Cir. Aug. 17, 2022)).

Eighth Circuit

August 30, 2022: In Anderson v. Hansen, the Eighth Circuit held, as matter of first impression, that tort claims related to allegations of sexual assault by an independent contractor against an employee at a work conference do not fall within the scope of the employee's mandatory employment arbitration agreement ( (8th Cir. Aug. 30, 2022)).

Corporation for National and Community Service

May 26, 2022: The Corporation for National and Community Service, operating as AmeriCorps, has published a proposed rule to adopt regulations to indemnify AmeriCorps employees who, because of employment conduct, have a verdict, judgment, monetary award, or personal damages claim issued against them that is not otherwise covered by the Federal Tort Claims Act. The proposed regulations detail how AmeriCorps employees may request indemnification or settlement of a claim and the circumstances in which AmeriCorps may approve those requests. Comments must be received by AmeriCorps by July 25, 2022. (87 Fed. Reg. 31967 (May 26, 2022).)

Health & Safety

For Practical Law resources on this topic, see Health and Safety in the Workplace Toolkit.

COVID-19 Developments

For key federal and state employment laws, regulations, and other directives responding to COVID-19, see COVID-19: Employment Law and Development Tracker.

OSHA

December 16, 2022: OSHA released a statement regarding the 2021 Census of Fatal Occupational Injuries, which revealed a nearly 9% one-year increase in fatal workplace injuries.
December 7, 2022: OSHA announced that it has signed an alliance with and the Consulate General of Mexico to provide Spanish-speaking workers in West Texas with information, guidance and access to workers’ rights.
November 17, 2022: OSHA announced that it has entered into an alliance with the New York State Department of Labor, the New York State Brewers Association, and the Master Brewers Association of the Americas to provide New York's brewing industry with information, guidance and access to training resources to help them protect the safety and health of workers.
October 4, 2022: OSHA announced that it added a new organization to the OSHA Training Institute Education Center network and renewed 25 existing education centers that offer training courses on OSHA standards and occupational safety and health topics to workers and employers across the country.
September 28, 2022: OSHA announced that it would hold a virtual meeting on October 19, 2022 to solicit public comments on OSHA whistleblower program improvements.
September 20, 2022: OSHA announced that it would hold a virtual informal stakeholder meeting on October 12, 2022 to seek public comments on potential changes to the Process Safety Management standard. Written comments may also be submitted to the Federal eRulemaking Portal by November 14, 2022.
September 15, 2022: OSHA announced it is expanding the criteria for placement in the OSHA Severe Violator Enforcement Program (SVEP).
September 9, 2022: The DOL announced that OSHA and the WHD have entered into a two-year alliance with the Lehigh Career and Technical Institute and the Pennsylvania OSHA Consultation Program to provide information, guidance, and training geared towards reducing and preventing exposure to safety and health hazards for warehouse and storage workers.
August 18, 2022: OSHA published a Final Rule announcing that the Massachusetts State Plan for State and Local Government Employers has received OSHA's initial approval (87 Fed. Reg. 50766 (Aug. 18, 2022)).
August 10, 2022: OSHA announced that it is reopening the comment period for an additional 60 days on the proposal to reconsider and revoke the final approval of Arizona's State Plan for Occupational Safety and Health. In addition, OSHA will postpone the public hearing that was tentatively scheduled for August 16, 2022.
August 9, 2022: OSHA announced that it has signed an Ambassador document with the American Staffing Association (ASA), recognizing the ASA's commitment to collaborating with OSHA to continue improving safety and health practices and programs in American workplaces for temporary workers. The successful alliance between the two parties was first established in 2014.
June 29, 2022: OSHA published a CFR Correction to correct Title 29 of the Code of Federal Regulations, Part 1926, revised as of July 1, 2021, in Section 1926.62, paragraph (d)(4)(ii) (87 Fed. Reg. 38657-02 (June 29, 2022)).
June 17, 2022: OSHA announced $11.7 million funding availability of Susan Harwood Training Grants for workplace safety and health hazards training. Applicants must apply by August 1, 2022 in the Targeted Topic Training, Training and Educational Materials Development or Capacity Building categories.
June 2, 2022: OSHA announced an online meeting of the Advisory Committee on Construction Safety and Health to take place on June 15, 2022.
June 1, 2022: OSHA has published a rule correcting an error in the most recent annual revision of the Code of Federal Regulations. In Title 29 of the Code of Federal Regulations, Parts 1900 to 1910.999, in §1910.95, in section II of appendix A, the term "TWA=16.61" should replace the term "TWA 6.61" in the formula. (87 Fed. Reg. 32999-01 (June 1, 2022).)
May 25, 2022: OSHA has extended the comment period on the proposed rule on Improve Tracking of Workplace Injuries and Illnesses for an additional 30 days, from May 31, 2022 to June 30, 2022 (87 Fed. Reg. 31793 (May 25, 2022).
April 5, 2022: OSHA announced the initiation of an enforcement program identifying employers that failed to submit Form 300A data through the OSHA Injury Tracking Application. Employers with 250 or more employees currently required to keep OSHA injury and illness records and employers with 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses must make annual electronic submissions.
March 30, 2022: OSHA published a Proposed Rule to amend its occupational injury and illness recordkeeping regulation to require some employers to electronically submit to OSHA injury and illness information that the recordkeeping regulation already requires them to keep. Comments must be submitted by May 31, 2022 (Improve Tracking of Workplace Injuries and Illnesses, 87 FR 18528 (proposed Mar. 30, 2022)).
March 7, 2022: OSHA issued an Interim Final Rule providing interim final text of regulations governing the anti-retaliation (employee protection or whistleblower) provision of the Taxpayer First Act (TFA) and establishing procedures and timeframes for the handling of TFA retaliation complaints. The interim final rule is effective on March 7, 2022. Comments must be submitted by May 6, 2022.
March 4, 2022: OSHA announced and published a Notice concerning the availability of $3.2 million in funds from the American Rescue Plan Act of 2021 for Susan Harwood Workplace Safety and Health Training on Infectious Diseases, Including COVID-19 grants. Harwood grant applications must be submitted online no later than 11:59 p.m. ET on May 6, 2022.
February 15, 2022: OSHA announced it had published a Notice of Proposed Rulemaking proposing to incorporate by reference the applicable provisions of the most relevant national consensus from the American National Standards Institute/Industrial Truck Standards Development Foundation (ANSI/ ITSDF). OSHA also proposes allowing employers to use powered industrial trucks not constructed in accordance with those national standards if the employer can demonstrate that the truck is designed and constructed in a manner at least as effective. Written comments on this proposed rule must be submitted by May 17, 2022.
February 3, 2022: OSHA announced that the DOL will hold a National Advisory Committee on Occupational Safety and Health (NACOSH) meeting on February 22, 2022 and that the NACOSH Heat Injury and Illness Prevention Work Group will hold its first meeting on February 25, 2022. Comments and requests to speak at the NACOSH meeting must be submitted by February 15, 2022.
January 26, 2022: OSHA issued an Interim Final Rule withdrawing the November 5, 2021 emergency temporary standard which had been issued to require large employers (with 100 or more employees) to develop, implement, and enforce a mandatory COVID-19 vaccination policy. The withdrawal is effective January 26, 2022. (COVID–19 Vaccination and Testing; Emergency Temporary Standard, 87 FR 3928 (Jan. 26, 2022) (withdrawing Emergency Temporary Standard issued on November 5, 2021 at 86 FR 61402).)
January 6, 2022: OSHA announced it has renewed its alliance with the Consulate General of Mexico in Kansas City to continue a collaborative relationship to promote workplace health and safety with the Consulate and Mexican nationals working in Kansas and Missouri. The alliance was first signed in 2013.
January 14, 2022: The DOL issued final regulations that include the agency's 2022 annual inflation adjustments to civil money penalties assessed in its regulations, effective January 15, 2022. The adjustments are required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). The final regulations address penalties imposed under the Employee Retirement Income Security Act of 1974 (ERISA), OSHA, FLSA, FMLA, and Immigration and Nationality Act (INA), among other statutes. (87 Fed. Reg. 2328 (Jan. 14, 2022).)

DOL Office of Workers' Compensation Programs

November 7, 2022: The OWCP adopted a set of expectations regarding the conduct of representatives who interact with OWCP staff, in response to inappropriate behavior by a small percentage of representatives who participate in the benefit programs the OWCP administers.
April 20, 2022: The DOL announced that it has issued a policy bulletin, "Special Case Handling in Certain Firefighter FECA Claims Processing and Adjudication" to assist federal firefighters with certain occupational illnesses by making it easier for claimants to file certain claims (by easing the evidentiary requirements needed to support claims by these individuals) and to improve transparency in how claims are processed.

US Department of Health & Human Services (HHS)

August 4, 2022: On August 4, 2022 HHS formally declared the 2022 US outbreak of monkeypox to be a public health emergency (PHE Declaration (Aug. 4, 2022); PHSA § 319 (42 U.S.C. § 247d)).
July 21, 2022: On July 21, 2022, HHS issued a fact sheet addressing the agency's response efforts for the 2022 US outbreak of monkeypox. These efforts have included increasing supplies of vaccines, testing, and treatments, coordinating with health providers, and providing outreach to high-risk communities.

Federal Aviation Administration

October 4, 2022: The Federal Aviation Administration announced that it has signed a Final Rule increasing the minimum rest period for flight attendants to ten hours between shifts.

Immigration

For key US immigration developments, see 2022 US Immigration Developments Tracker.

Leave Law

For Practical Law resources on this topic, see Employee Leave Toolkit.

Federal Legislation

September 29, 2022: President Biden signed into law S. 2293, the Civilian Reservist Emergency Workforce Act of 2021 (CREW Act), extending employment and reemployment protections under USERRA to FEMA reservists deploying to major disaster sites. The CREW Act amends 42 U.S.C. § 5149 (adding a new subsection (d)) and 38 U.S.C. § 4303.

US Supreme Court

June 29, 2022: In Torres v. Texas Dep't of Pub. Safety, the US Supreme Court held that US states are subject to civil lawsuit USERRA ( (U.S. June 29, 2022)).

Sixth Circuit

November 16, 2022: In Render v. FCA US, LLC, the Sixth Circuit clarified that the McDonnell Douglas burden-shifting framework applies to an FMLA interference claim only when the plaintiff relies on circumstantial evidence and does not apply when the plaintiff presents direct evidence of interference ( (5th Cir. Nov. 16, 2022)).

Seventh Circuit

August 16, 2022: In Simon v. Cooperative Educational Service Agency #5, the Seventh Circuit held, in a matter of first impression, that the FMLA's authorization for equitable relief includes a declaratory judgment, which allowed the district court to grant attorney's fees to the plaintiff ((7th Cir. Aug. 16, 2022)).
June 8, 2022: In Ziccarelli v. Dart, the Seventh Circuit held that an employer can violate the FMLA by discouraging an employee from exercising rights under the FMLA without actually denying an FMLA leave request ( (7th Cir. June 1, 2022)).

DOL

March 10, 2022: On March 10, 2022, the DOL published Field Assistance Bulletin (FAB) 2022-02, Protecting Workers from Retaliation, together with other guidance, to provide information about the anti-retaliation provisions of the laws the DOL's WHD administers and enforces, including the FLSA, the FMLA, certain nonimmigrant visa programs, and more.
January 14, 2022: The DOL issued final regulations that include the agency's 2022 annual inflation adjustments to civil money penalties assessed in its regulations, effective January 15, 2022. The adjustments are required under the Inflation Adjustment Act. The final regulations address penalties imposed under ERISA, OSHA, FLSA, FMLA, and INA, among other statutes. (87 Fed. Reg. 2328 (Jan. 14, 2022).)

IRS

May 19, 2022: In response to the 2022 Ukraine crisis, the IRS issued guidance addressing the taxation of amounts paid to employer leave-based donation programs to assist certain individuals affected by the crisis (Notice 2022-28 (May 19, 2022)). The IRS's guidance addresses the federal income and employment tax treatment of cash payments made by employers under leave-based donation programs to assist the affected individuals.

Policies & Procedures

For Practical Law resources on this topic, see Employee Handbook Toolkit.

Third Circuit

May 25, 2022: In Groff v. DeJoy, the Third Circuit furthered a circuit split by holding that a religious accommodation is not reasonable under Title VII unless it entirely eliminates the conflict between religious practice and work requirements ( (3d Cir. May 25, 2022)).

Seventh Circuit

August 16, 2022: In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit affirmed the grant of summary judgment to Walmart in the EEOC's appeal of the trial court decision that Walmart did not violate the PDA. The Seventh Circuit found the EEOC failed to provide sufficient evidence that Walmart's policy for offering temporary light duty only to workers injured on the job imposed a significant burden on pregnant workers and that Walmart's legitimate, nondiscriminatory rationale for the policy, to comply with Wisconsin's workers' compensation law, was not sufficiently strong to justify the burden. ( (7th Cir. Aug. 16, 2022).)

OFCCP

August 18, 2022: OFCCP published Directive (DIR) 2022-01 Revision 1 "Advancing Pay Equity Through Compensation Analysis" to provide guidance on how OFCCP will evaluate federal contractors' compliance with compensation analysis obligations and clarify OFCCP's authority to access and review documentation of compensation analyses conducted under 41 C.F.R § 60-2.17(b)(3).
March 15, 2022: OFCCP issued a new directive providing guidance on how it will evaluate federal contractor compliance with annual pay equity audit obligations and clarify the agency's authority to access and review pay equity audits, which aim to prevent pay disparities based on gender, race, or ethnicity.
February 9, 2022: OFCCP published a Notice soliciting comments concerning its proposal to obtain approval from the Office of Management and Budget to renew the information collection that implements standard procedures for supply and service contractors seeking approval to develop affirmative action programs based on functional or business units. Written comments must be submitted on or before April 11, 2022.

Recruitment & Hiring

For Practical Law resources on this topic, see Employee Hiring and Orientation Toolkit.

Federal Legislation

December 23, 2022: President Biden signed the National Defense Authorization Act, 2023, which included the Fair Hiring in Banking Act. The new law further eases bank hiring restrictions for individuals with certain criminal histories and is effective January 1, 2023. (NDAA, 2023, § 5705, PL 117-263, Dec. 23, 2022.)

Second Circuit

August 12, 2022: In Williams v. MTA Bus Co., the Second Circuit held that an employer is not required to provide an accommodation for a preemployment exam to a disabled job applicant who is not otherwise qualified for the position sought ( (2d Cir. Aug. 12, 2022)).

Department of Transportation (DOT) Federal Motor Carrier Safety Administration (FMCSA)

December 1, 2023: Beginning January 6, 2023, motor carrier employers subject to the regulations of the Federal Motor Carrier Safety Administration (FMCSA) may conduct part of the safety performance history investigation that is required for all driver-applicants in the FMCSA Clearinghouse (49 C.F.R. § 391.23(e)(1-3).

DOL Employment & Training Administration (ETA)

September 26, 2022: The ETA issued a final rule rescinding its 2020 regulation that established a process authorizing the Office of Apprenticeship Administrator to grant recognition to qualified third-party entities (Standards Recognition Entities), which were then authorized to evaluate and extend recognition to Industry Recognized Apprenticeship Programs. This final rule becomes effective on November 25, 2022. (87 Fed. Reg. 58269 (Sept. 26, 2022).)
May 13, 2022: The DOL announced that the ETA has issued guidance informing states and outlying areas about their formula allotments and the process to apply for certain programs for the start of the program year on July 1, 2022.

OFCCP

January 19, 2022: OFCCP and the EEOC launched the Hiring Initiative to Reimagine Equity (HIRE) a collaborative effort designed to engage stakeholders in expanding job access for workers from underrepresented communities and help address hiring and recruitment challenges. HIRE will identify strategies to remove barriers that limit job opportunities based on race, color, ethnicity, gender, LGBTQ+ status, religion, disability, age, and veteran status.

Restrictive Covenants, Confidentiality & IP

For Practical Law resources on this topic, see Restrictive Covenants Toolkit and State Restrictive Covenants Toolkit.

As non-compete are largely dependent on state law, see State and Local Developments for more legal developments on this topic.

Federal Legislation

December 7, 2022: President Biden signed the Speak Out Act (S. 4524) (P.L. 117-224) which renders unenforceable predispute confidentiality and nondisparagement clauses regarding a sexual assault or sexual harassment dispute. The Act applies to claims filed on or after December 7, 2022.

Termination, Layoffs & Plant Closings

For Practical Law resources on this topic, see Departing Employee Toolkit and Reductions in Force Toolkit.

Unions

For key traditional labor law developments, see 2022 Traditional Labor Law Developments Tracker.

Wage & Hour Law

For Practical Law resources on this topic, see Wage and Hour Claims Toolkit.

Federal Legislation

December 29, 2022: President Biden signed H.R. 2617, the Consolidated Appropriations Act, 2023, which includes:
- the Pregnant Workers Fairness Act (PWFA), containing requirements regarding reasonable accommodations related to pregnancy; and
- the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act), amending the FLSA to address breastfeeding accommodations in the workplace (29 U.S.C. § 218D).
The PWFA is effective 180 days after enactment. Certain portions of the PUMP for Nursing Mothers Act are effective immediately (Sections 102(a), Expanding Employee Access to Break Time and Space, and 102(c), Authorizing Employees to Temporarily Obscure the Field of View of an Image Recording Device on a Locomotive or Rolling Stock While Expressing Breast Milk), while another provision is effective 120 after enactment (Section 102(b), Clarifying Remedies).

First Circuit

January 13, 2022: In Waters v. Day & Zimmermann NPS, Inc., the First Circuit held that Federal Rule of Civil Procedure 4(k)(1) is concerned with initial service, not jurisdictional limitations after service, and it does not act as an independent limitation on personal jurisdiction in collective actions ( (1st Cir. Jan. 13, 2022)).

Second Circuit

January 27, 2022: In Samake v. Thunder Lube, Inc., the Second Circuit held that the FLSA limits the automatic operation of unilateral dismissals under FRCP 41 ( (2d Cir. Jan. 27, 2022)).

Third Circuit

September 14, 2022: In Uronis v. Cabot Oil & Gas Corp., the Third Circuit held that the FLSA's anti-discrimination provision, Section 15(a)(3), applies to employees who have filed, or intend to soon file, a consent to join a collective action ( (3d Cir. Sept. 14, 2022)).
July 26, 2022: In Fischer v. Fed. Express Corp., the Third Circuit furthered a circuit split by holding that in a FLSA collective action in federal court, where the court lacks general personal jurisdiction over the defendant, all opt-in plaintiffs must establish specific personal jurisdiction over the defendant by demonstrating that their individual claims arise out of or relate to the defendant's minimum contacts with the forum state ( (3d Cir. July 26, 2022)).

Fourth Circuit

January 5, 2022: In Conner v. Cleveland Cty., N.C., the Fourth Circuit created a circuit split in recognizing that an overtime gap time claim is cognizable under the FLSA (22 F.4th 412 (4th Cir. 2022)). The Supreme Court denied certiorari, leaving the Fourth Circuit decision stand ( (U.S. Dec. 12, 2022)).

Ninth Circuit

October 24, 2022: The Ninth Circuit held that call center employees' time booting up and shutting down their computers is an integral and indispensable part of their principal duties, making the time compensable under FLSA (Cadena v. Customer Connexx LLC, (9th Cir. Oct. 24, 2022)).
October 11, 2022: In Mobilize the Message LLC v. Bonta, the Ninth Circuit, in denying a preliminary injunction for plaintiffs, held that AB 5's exemption of certain occupations but not others does not violate the First Amendment because it does not constitute content-based discrimination ( (9th Cir. Oct. 12, 2022)).
July 5, 2022: In Bowerman v. Field Asset Servs., Inc., the Ninth Circuit held that for business expense and joint employment claims arising from conduct that occurred pre-California Assembly Bill 5 (AB 5), the employee status test discussed in Borello, rather than the test found in Dynamex, is applicable ( (9th Cir. July 5, 2022)).

DOL WHD

December 15, 2022: The DOL announced that it has renewed a memorandum of understanding (MOU) with the IRS to enable the agencies to promote employer compliance with wage and hour laws, and added a streamlined process for joint referrals and coordination to stop business from misclassifying workers and denying them full wages, benefits, and protections under the law.
October 25, 2022: The DOL announced an extension of the comment period for the proposed independent contractor classification rule from November 28, 2022 to December 13, 2022 (Employee or Independent Contractor Classification Under the Fair Labor Standards Act; Extension of Comment Period, 87 Fed. Reg. 64749 (Oct. 26, 2022)).
October 11, 2022: The DOL announced the publication of a proposed rule to revise guidance on how to determine who is an employee or independent contractor under the FLSA (Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 87 Fed. Reg. 62218 (proposed Oct. 13, 2022)).
September 30, 2022: The DOL published in the Federal Register notices of minimum wage rate changes, effective January 1, 2023, for federal contractors covered by:
- Executive Order 13658, increasing to $12.15 per hour and $8.50 per hour for tipped employees (87 Fed. Reg. 59468 (Sept. 30, 2022); and
- Executive Order 14026, increasing to $16.20 per hour and $13.75 per hour for tipped employees (87 Fed. Reg. 59464 (Sept. 30, 2022).
September 28, 2022: The DOL announced that it has renewed a MOU with the Louisiana Workforce Commission to protect workers from misclassification.
September 9, 2022: The DOL announced that OSHA and the WHD have entered into a two-year alliance with the Lehigh Career and Technical Institute and the Pennsylvania OSHA Consultation Program to provide information, guidance, and training geared towards reducing and preventing exposure to safety and health hazards for warehouse and storage workers.
July 29, 2022: The WHD announced the launch of Seven Child Labor Best Practices for Employers, guidance that focuses on training, sharing information, and using practical tools to identify hazardous occupations young workers should avoid. WHD has enhanced outreach and strengthened enforcement in an effort to significantly reduce child labor injuries and violations.
July 15, 2022: The WHD published a notice of proposed regulation to implement Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts, which establishes a federal government policy requiring service contracts succeeding contracts for the same or similar services, and solicitations of the contracts, to include a non-displacement clause that requires contractors and their subcontractors to offer qualified employees employed under the predecessor contract a right of first refusal of employment under the successor contract. Comments must be received by August 15, 2022.
June 16, 2022: The WHD announced new guidance Field Assistance Bulletin No. 2022-4 "Enforcement of the Rehabilitation Act Section 511 Requirements for Workers with Disabilities in the Section 14(c) Program."
May 25, 2022: The WHD announced new guidance on workers' rights to take leave under the FMLA for serious mental health conditions. The guidance includes Fact Sheet # 280: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA's mental health provisions.
May 19, 2022: The WHD announced it had renewed a multi-year nationwide initiative to help workers and increase federal compliance by food service employers. The "Essential Workers, Essential Protections" initiative combines enforcement with outreach and education to raise awareness of common violations of the FLSA and other federal labor laws. The initiative also aims to combat retaliation by employers.
May 18, 2022: The WHD announced that it would hold an online listening session for Southwest employees and their stakeholders on May 25, 2022, on possible revisions to the regulations that enforce the FLSA's minimum wage and overtime exemptions for executive, administrative and professional employees.
March 11, 2022: The WHD announced the publication of a Notice of Proposed Rulemaking as it considers updating the regulations implementing the Davis-Bacon Act and Related Acts to reflect the needs of construction industry workers and planned federal construction investments.
March 10, 2022: On March 10, 2022, the DOL published Field Assistance Bulletin (FAB) 2022-02, Protecting Workers from Retaliation, together with other guidance, to provide information about the anti-retaliation provisions of the laws the DOL's WHD administers and enforces, including the FLSA, the FMLA, certain nonimmigrant visa programs, and more.
April 29, 2022: The DOL announced it would hold a listening session on May 5, 2022 for employees, employee advocates and union representatives regarding potential revisions to FLSA minimum wage and overtime exemptions for executive, administrative and professional employees.
January 13, 2022: The DOL published Field Assistance Bulletin No. 2022-1 providing guidance as to the application of Executive Order 14026, "Increasing the Minimum Wage for Federal Contractors" (EO 14026).
January 14, 2022: The DOL issued final regulations that include the agency's 2022 annual inflation adjustments to civil money penalties assessed in its regulations, effective January 15, 2022. The adjustments are required under the Inflation Adjustment Act. The final regulations address penalties imposed under ERISA, OSHA, FLSA, FMLA, and INA, among other statutes. (87 Fed. Reg. 2328 (Jan. 14, 2022).)

Federal Aviation Administration

October 4, 2022: The Federal Aviation Administration announced that it has signed a Final Rule increasing the minimum rest period for flight attendants to ten hours between shifts.

US AbilityOne Commission

July 21, 2022: The US AbilityOne Commission (Committee for Purchase From People Who Are Blind or Severely Disabled) announced it had published a Final Rule requiring that effective October 19, 2022, a nonprofit agency seeking initial or continuing qualification under the Javits Wagner O'Day Act (JWOD Act) to participate in the AbilityOne Program must certify that it will not use certificates authorized under Section 14(c) of the FLSA (Prohibition on the Payment of Subminimum Wages Under 14(c) Certificates as a Qualification for Participation as a Nonprofit Agency Under the Javits Wagner O'Day Act, 87 Fed. Reg. 43427-01, (July 21, 2022)).

Federal Public Sector

For Practical Law resources on this topic, see Federal Public Sector Employment Law Toolkit.

Executive Orders

December 28, 2022: The Executive Office of the President published Executive Order 14061, Adjustments of Certain Rates of Pay (86 Fed. Reg. 73601 (Dec. 29, 2022)).

EEOC

September 27, 2022: The EEOC has published a Notice of Proposed Rulemaking to revise its federal sector complaint processing regulations to provide for the digital transmission of EEO hearing and appellate documents and to address the use of the EEOC's Electronic Public Portal. Comments must be received by November 28, 2022. (87 Fed. Reg. 58469 (Sept. 27, 2022).)
January 24, 2022: The EEOC announced the release of guidance titled, "Guide to Writing Appeal Briefs for Unrepresented Complainants," intended to assist federal employees and applicants with employment discrimination complaint appeals to the EEOC, including explaining proper content and organization for an appeal brief.

US Office of Government Ethics (OGE)

July 5, 2022: The OGE issued a legal advisory stating that any federal government employee who holds cryptocurrency or stablecoin may not participate in a matter if the individual knows that the particular matter could have financial impact on their cryptocurrency or stablecoins.

US Office of Personnel Management (OPM)

December 1, 2022: Office of Personnel Management (OPM) is issuing final regulations that allow agencies to make term appointments in certain Science, Technology, Engineering, and Mathematics-related (“STEM-related”) occupations for up to 10 years, providing agencies with greater flexibility to staff foreseeably long-term projects of a STEM-related nature when the need for the work is not permanent.
January 21, 2022: OPM announced a new $15 per hour minimum wage for US federal civilian employees. OPM also issued a memorandum providing guidance for agencies to achieve the change in minimum wage, which must be implemented by January 30, 2022. (See Executive Order 14003, Protecting the Federal Workforce, 86 Fed. Reg. 7231 (Jan. 22, 2021).)

Miscellaneous

Office of Management and Budget (OMB)

April 29, 2022: OMB announced it had released Memorandum M-22-12 regarding implementation of President Biden's Bipartisan Infrastructure Law.

DOL

August 8, 2022: The DOL published a Notice containing the semiannual regulatory flexibility agenda (87 Fed. Reg. 48308 (August 8, 2022)).

State and Local Developments

The dates in this section generally correspond to the date a law is enacted, signed, or becomes effective, guidance is issued, or a case is decided, as applicable. In certain circumstances where more than one (or none) of those dates apply, the date refers to the date of publication of the cited Law Firm Publication.

California

December 30, 2022: A Sacramento County Superior Court judge issued a temporary restraining order blocking the California Department of Industrial Relations from implementing provisions of Assembly Bill (AB) No. 257, the Fast Food Accountability and Standards Recovery Act. The temporary restraining order comes in response to a lawsuit by a consortium of small and large restaurants seeking to have the provisions of AB 257 put to a ballot referendum as part of the 2024 election cycle. The court requested party briefs and set a hearing for January 13, 2023. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
December 27, 2022: The California Division of Labor Standards Enforcement updated the California Equal Pay Act FAQs to answer questions and provide clarification on California's new pay transparency requirement for job postings, effective January 1, 2023 (see
Law Firm Publication
by Fisher Phillips).
December 5, 2022: A coalition of restaurant advocacy groups have announced that they filed signatures with the California Secretary of State to trigger a statewide referendum on the FAST Recovery Act. If the signatures are verified, the legislation will be suspended until California’s 2024 general election when voters will decide whether the law should go into effect.
November 29, 2022: Los Angeles passed a Fair Work Week Ordinance for retail workers, effective April 1, 2023 (see
Law Firm Publication
by Epstein Becker Green).
November 23, 2022: In Valiente v. Swift Transp. Co. of Arizona, LLC, a divided Ninth Circuit panel concluded that Int'l Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Admin., which held that the FMCSA preempted California meal and rest break rules for certain truck drivers, applies retroactively ( (9th Cir. Nov. 23, 2022) (citing 986 F.3d 841 (9th Cir. 2021))).
November 14, 2022: California's Department of Industrial Relations (DIR) updated the minimum monthly salary for overtime exemptions for computer software employees and physicians in 2023 based on increases to the California Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI). Effective January 1, 2023, the minimum hourly rate to meet the exemption for:
- computer software employees is $53.80, with a minimum monthly salary of $9,338.78 (annually $112,065.20). The current rates are $50.00 per hour, $8,679.16 minimum monthly salary, and $104,149.81 annually; and
- licensed physicians and surgeons is $97.99. The current hourly rate is $91.07.
(See
Law Firm Publication
by Jackson Lewis P.C.)
October 11, 2022: In Mobilize the Message LLC v. Bonta, the Ninth Circuit, in denying a preliminary injunction for plaintiffs, held that AB 5's exemption of certain occupations but not others does not violate the First Amendment because it does not constitute content-based discrimination ( (9th Cir. Oct. 12, 2022)).
October 1, 2022: San Francisco's Public Health Emergency Leave Ordinance went into effect, providing for paid leave to employees for public health emergencies, and San Francisco's Office of Labor Standards Enforcement issued a Frequently Asked Questions page to assist with the application of the new law (see
Law Firm Publication
by Jackson Lewis P.C.).
September 29, 2022: California Governor Gavin Newsom signed into law AB 984, adding California Vehicle Code § 4854 to restrict using devices as alternatives to the conventional license plates, stickers, tabs, and registration cards to monitor employees and require employers choosing to install in vehicles devices that could locate, track, watch, listen to, or otherwise surveil employees to provide certain notices to employees before using those devices. The law is effective January 1, 2023 (see
Law Firm Publication
by Jackson Lewis P.C.)
September 29, 2022: California Governor Gavin Newsom signed into law SB 1044, adding Cal. Lab. Code § 1139 and making it unlawful for employers to take or threaten adverse action against an employee for refusing to report to or leave a workplace due to a reasonable belief that the workplace is unsafe due to a "emergency condition," effective January 1, 2023 (see
Law Firm Publication
by Fisher Phillips).
September 29, 2022: California Governor Gavin Newsom signed into law AB 1949, amending the California Family Rights Act (Cal. Gov't Code §§ 12945.21 and 19859.3 and adding Cal. Gov't Code § 12945.7), and requiring employers with five or more employees to provide up to five days of unpaid leave to eligible employees for the death of a family member (see
Law Firm Publication
by Fisher Phillips).
September 29, 2022: California Governor Gavin Newsom signed into law AB 1041, amending Cal. Gov't Code § 12945.2 and Cal. Lab. Code § 245.5 and expanding state family and paid sick leave by allowing employees to take protected time off to care for to include a "designated person," effective January 1, 2023 (see
Law Firm Publication
by Fisher Phillips).
September 29, 2022: California Governor Gavin Newsom signed into law AB 1601, amending Labor Code § 1400 to include additional Labor Commissioner enforcement mechanisms for California Worker Adjustment and Retraining Notification (Cal mini-WARN) Act notice violations and adding Labor Code sections concerning call center relocations, effective January 1, 2023 (see (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
September 27, 2022: California Governor Gavin Newsom signed SB 523, the Contraceptive Equity Act of 2022, amending Cal. Gov't Code §§ 12920, 12921, 12926, 12931, 12940, 12944, and 12993 and making it an unlawful employment practice to discriminate against an applicant or an employee based on reproductive health decision-making (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
September 27, 2022: California Governor Gavin Newsom signed into law SB 1162, amending Cal. Gov. Code § 12999 and Cal. Lab. Code § 432.3. SB 1162 requires employers with 15 or more employees to include the pay scale for a position in any job posting as of January 1, 2023, and employers with 100 or more employees to comply with expanded pay data reporting obligations as of May 10, 2023. (See
Law Firm Publication
by Jackson Lewis P.C.)
September 13, 2022: California Division of Occupational Safety and Health's (Cal/OSHA) issued guidance for employers on protecting workers from monkeypox under the Aerosol Transmissible Disease (ATD) Standard (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
September 18, 2022: California law AB 2188, effective January 1, 2024, makes it unlawful for an employer to discriminate against an individual due to off-the-job cannabis use or when an employer-required drug test finds non-psychoactive cannabis in the individual's system (see Law Firm Publication by Fisher Phillips).
August 24, 2022: California's minimum wage rate jumping to $15.50 per hour in 2023 (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
August 10, 2022: California healthcare worker minimum wage increase on hold in Los Angeles and Downey but may soon take effect in Monterey Park and Long Beach (see Law Firm Publication by Epstein Becker Green).
June 26, 2022: In National Railroad Passenger Corp. v. Su, the Ninth Circuit held that the federal Railroad Unemployment Insurance Act (RUIA) preempts California's Healthy Workplaces, Healthy Families Act of 2014 as to railroad employees ( (9th Cir. June 26, 2022)).
July 12, 2022: Los Angeles to implement new hotel worker protection ordinance (see Law Firm Publication by Fisher Phillips).
July 8, 2022: California funded paid family leave grant for small employers (see Law Firm Publication by Jackson Lewis P.C.).
July 5, 2022: In Bowerman v. Field Asset Servs., Inc., the Ninth Circuit held that for business expense and joint employment claims arising from conduct that occurred pre-California Assembly Bill 5 (AB 5), the employee status test discussed in Borello, rather than the test found in Dynamex, is applicable ( (9th Cir. July 5, 2022)).
July 1, 2022: California local minimum wage increases and local paid sick leave law became effective July 1, 2022 (see Law Firm Publication by Fisher Phillips).
June 13, 2022: California pre-employment drug testing not compensable (see Law Firm Publication by Jackson Lewis P.C.).
June 15, 2022: In Viking River Cruises, Inc. v. Moriana, the US Supreme Court held that the FAA preempts the California Supreme Court's ruling in Iskanian to the extent that it precludes division of California's Labor Code Private Attorneys General Act of 2004 (PAGA) actions into individual and non-individual claims through an arbitration agreement ( (U.S. June 15, 2022)).
May 23, 2022: California Supreme Court ruled that payments for missed breaks are "wages" (see Law Firm Publication by Fisher Phillips).

Colorado

November 16, 2022: On November 8, 2022, voters in the District of Columbia and several states, including Colorado, Maryland, Missouri, Nebraska, and Nevada, passed ballot measures that may require changes to employers' policies and procedures. In Colorado, voters passed a ballot measure to decriminalize using and possessing certain psychedelic plants and fungi as natural medicine. (See
Law Firm Publication
by Jackson Lewis P.C.)
November 16, 2022: On November 8, 2022, voters in Colorado passed a ballot initiative to decriminalize possession of and legalize limited use of psychedelic mushrooms and other plant- and fungi-derived psychedelic drugs by those 21 years of age or older (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
October 13, 2022: Colorado's new Paid Family and Medical Leave Insurance (FAMLI) program will be effective on January 1, 2023 (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
August 10, 2022: Colorado Department of Labor and Employment released new guidance on the Healthy Families and Workplaces Act and more (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
August 10, 2022: Colorado employers must prepare for changes to Anti-Discrimination Act and other new laws (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
June 28, 2022: Colorado's new non-compete law will be effective on August 10, 2022 (see Law Firm Publication by Jackson Lewis P.C.).
May 31, 2022: Colorado expanded whistleblower protections for health and safety violations at the workplace (see Law Firm Publication by Fisher Phillips).
May 25, 2022: Colorado expanded notice requirement for unemployment benefits upon termination (see Law Firm Publication by Fisher Phillips).
January 13, 2022: Colorado criminalized overreaching restrictive covenants, effective March 1, 2022 (see Law Firm Publication by Epstein Becker Green).

Connecticut

April 26, 2022: Connecticut Supreme Court issued decision on the Connecticut Commission on Human Rights and Opportunities' (CHRO) authority to award emotional distress damages and attorney's fees under Title VII where the federal claims form the factual basis of an employee's claim under the Connecticut Fair Employment Practices Act (Conn. Gen. Stat. § 46a-58(a)) (see Law Firm Publication by Wiggin and Dana LLP).

Delaware

May 10, 2022: Delaware Paid Family and Medical Leave Law signed (see Law Firm Publication by Jackson Lewis P.C.).

District of Columbia

November 16, 2022: On November 8, 2022, voters in the District of Columbia and several states, including Colorado, Maryland, Missouri, Nebraska, and Nevada, passed ballot measures that may require changes to employers' policies and procedures. Washington DC passed the Tip Credit Elimination Act. (See
Law Firm Publication
by Jackson Lewis P.C.)
October 1, 2022: The District of Columbia amended its Human Rights Act by adding protections for individuals with homeless status, expanding the definition of employee, and introducing a new harassment standard. The Human Rights Enhancements Act took effect on October 1, 2022. (See
Law Firm Publication
published on January 30, 2023 by Ogletree, Deakins, Nash, Smoak & Stewart, P.C..)
August 19, 2022: District of Columbia employers of tipped workers must conduct sexual harassment training, report harassment claims, and submit certification (see Law Firm Publication by Law Firm Publication by Jackson Lewis P.C.).
July 27, 2022: Washington DC mayor signed modified non-compete ban (see Law Firm Publication by Jackson Lewis P.C.).
July 12, 2022: Washington DC scaled back ban on non-competes (see Law Firm Publication by Epstein Becker Green).
March 1, 2022: District of Columbia's ban on non-compete agreements applicability date postponed to October 1, 2022 (see Law Firm Publication by Jackson Lewis P.C.).
March 1, 2022: District of Columbia projected increase in paid family and medical leave benefits (see Law Firm Publication by Jackson Lewis P.C.).

Florida

September 30, 2022: Florida's minimum wage increases to $11.00 per hour (see
Law Firm Publication
by Ford Harrison).
August 18, 2022: Florida's Individual Freedom Act blocked on constitutional grounds (see Law Firm Publication by Jackson Lewis P.C.).
April 22, 2022: Florida Civil Rights Act amendment restricts concepts employers can discuss in training (see Law Firm Publication by Jackson Lewis P.C.).

Georgia

October 26, 2022: The City of Atlanta adopted new protections for criminal history status and gender expression (see
Law Firm Publication
by Jackson Lewis P.C.).
May 2, 2022: Georgia amended definition of employment in unemployment laws, restricts local laws regulating work hours (see Law Firm Publication by Jackson Lewis P.C.).

Hawaii

June 23, 2022: Hawaii became the first state to enact $18 minimum wage (see Law Firm Publication by Jackson Lewis P.C.).

Illinois

June 10, 2022: Illinois governor signed bills expanding contractors' liability for unpaid wages of subcontractors' workers (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
June 9, 2022: Illinois expanded unpaid child bereavement leave to cover additional family members and losses (see Law Firm Publication by Jackson Lewis P.C.).
June 6, 2022: Chicago's minimum wage increase set to take effect July 1, 2022 (see Law Firm Publication by Epstein Becker Green).
May 18, 2022: Illinois Equal Pay Act expanded to cover more employers (see Law Firm Publication by Jackson Lewis).
May 13, 2022: Illinois amended meal and rest periods law (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
April 27, 2022: Chicago adopted new sexual harassment prevention obligations for employers (see Law Firm Publication by Jackson Lewis P.C. and see Law Firm Publication by Epstein Becker Green).
February 3, 2022: In McDonald v. Sympathy Bronzeville Park, LLC, the Illinois Supreme Court held as a matter of first impression that the exclusive remedy provisions in the state's Workers' Compensation Act do not bar a claim for statutory damages under the Illinois Biometric Information Privacy Act (BIPA) ( (Ill. Sup. Ct. Feb. 3, 2022)).
January 1, 2022: Chicago, Illinois ordinance requires written contracts for domestic workers (see Law Firm Publication by Jackson Lewis P.C.).

Kentucky

November 17, 2022: Kentucky governor signed an Executive Order protecting medical marijuana use (see Law Firm Publication by Fisher Phillips).

Louisiana

July 26, 2022: Louisiana CROWN Act prohibiting hairstyle-based discrimination takes effect August 1, 2022 (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
June 21, 2022: Louisiana governor signed legislation to mitigate workplace violence against healthcare workers, effective August 1, 2022 (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Maine

August 7, 2022: Effective today, the Maine Human Rights Act expands its definition of race to include traits associated with race, including hair texture, Afro hairstyles, and protective hairstyles (5 M.R.S.A. § 4553).
May 12, 2022: Maine law prohibits employers from requiring employees to enter agreements limiting disclosure of discrimination, effective August 8, 2022 (see Law Firm Publication Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
April 18, 2022: Maine employers must pay unused vacation time when employment ends (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Maryland

November 16, 2022: On November 8, 2022, voters in the District of Columbia and several states, including Colorado, Maryland, Missouri, Nebraska, and Nevada, passed ballot measures that may require changes to employers' policies and procedures. Maryland passed an initiative legalizing marijuana use for individuals over the age of 21. Maryland voters also approved a state constitutional amendment allowing cannabis use by anyone over the age of 21 on or after July 1, 2023, subject to the General Assembly passing legislation on the regulation, distribution, possession, and taxation of marijuana. (See
Law Firm Publication
by Jackson Lewis P.C.)
April 9, 2022: Maryland became the tenth state to provide paid family leave (see Law Firm Publication by Fisher Phillips).

Massachusetts

December 14, 2022: The Massachusetts Department of Family and Medical Leave released a new family and medical leave workplace poster and workplace notification form for employers to provide to employees (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
September 30, 2022: The Massachusetts Department of Family and Medical Leave announced changes to the employer contribution rates under the Paid Family and Medical Leave Act (PFMLA) effective January 1, 2023 (see
Law Firm Publication
by Jackson Lewis P.C.).
July 26, 2022: Massachusetts governor signed CROWN Act banning hairstyle-based discrimination (see Law Firm Publication by Fisher Phillips).
April 14, 2022: Massachusetts high court held that state law remedies are not available for FLSA violations (see Law Firm Publication by Jackson Lewis P.C.).
April 4, 2022: Massachusetts employers may be liable for treble damages if even one day late with employee's final wage payment (see Law Firm Publication by McLane Middleton).
February 7, 2022: Massachusetts court ruled that day spa workers are not entitled to Sunday premium pay (see Law Firm Publication by Fisher Phillips).

Michigan

December 15, 2022: The Michigan Department of Labor and Economic Opportunity provided guidance on the upcoming changes to the state's minimum wage rates in light of pending litigation regarding minimum wage legislation (see
Law Firm Publication
by Jackson Lewis P.C.).
October 17, 2022: Michigan Occupational Safety and Health Administration issued an agency instruction to provide clarification on proper procedures for conducting interview in enforcement investigations under the Michigan Occupational Safety and Health Act (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
July 28, 2022: Michigan Supreme Court held that discrimination based on sexual orientation is unlawful under Michigan's Elliott-Larsen Civil Rights Act (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
July 19, 2022: Michigan reinstated minimum wage increase and Earned Sick Time Act (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Minnesota

November 30, 2022: The commissioner of the Minnesota Department of Labor and Industry announced the inflation-adjusted minimum wage rate. Accordingly, on January 1, 2023, the Minnesota minimum wage rate will increase from $10.33 per hour to $10.59 per hour (for large employers) and $8.42 per hour to $8.63 per hour (for small employers). The cities of Minneapolis and St. Paul also have minimum wage rates that are set to increase-some rates in January (instead of in July, as is typically the case) and others in July. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
April 19, 2022: Minnesota enacted legislation funding unemployment coffers, authorizing pay to frontline workers, and requiring notice (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Mississippi

February 2, 2022: Mississippi enacted medical marijuana law (see Law Firm Publication by Jackson Lewis P.C.).

Missouri

November 16, 2022: On November 8, 2022, voters in the District of Columbia and several states, including Colorado, Maryland, Missouri, Nebraska, and Nevada, passed ballot measures that may require changes to employers' policies and procedures. Missouri passed an initiative legalizing marijuana use for individuals over the age of 21. Missouri voters also approved a state constitutional amendment on medical and recreational marijuana. (See
Law Firm Publication
by Jackson Lewis P.C.)

Nebraska

November 16, 2022: On November 8, 2022, voters in the District of Columbia and several states, including Colorado, Maryland, Missouri, Nebraska, and Nevada, passed ballot measures that may require changes to employers' policies and procedures. Nebraska passed a minimum wage law that increases the minimum wage in stages beginning on January 1, 2023 and ending in January 2026. (See
Law Firm Publication
by Jackson Lewis P.C.)

Nevada

November 16, 2022: On November 8, 2022, voters in the District of Columbia and several states, including Colorado, Maryland, Missouri, Nebraska, and Nevada, passed ballot measures that may require changes to employers' policies and procedures. Nevada passed an initiative to add a minimum wage provision to the state constitution. The measure raises the minimum wage on July 1, 2024 and then follows the federal minimum wage. (See
Law Firm Publication
by Jackson Lewis P.C.)
August 11, 2022: Nevada high court ruled recreational marijuana is not lawful off-duty conduct (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

New Jersey

November 17, 2022: New Jersey's S.B. 315 took effect November 16, 2022. The law provides job protections for health care workers following a change in control at their employer. (See Law Firm Publication by Epstein Becker Green.)
November 2, 2022: New Jersey's minimum wage increases by $1.13 per hour effective January 1, 2023 (see
Law Firm Publication
by Fisher Phillips).
September 9, 2022: New Jersey Cannabis Regulatory Commission released interim drug testing guidance to employers regarding the use of a Workplace Impairment Recognition Expert (WIRE) and template "Reasonable Suspicion Observed Behavior Report" (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
August 1, 2022: New Jersey enacted new annual and remote worker poster requirements (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
April 18, 2022: New Jersey required that employers give notice before using tracking devices on vehicles used by employees (see Law Firm Publication by Jackson Lewis P.C.).

New Mexico

July 1, 2022: New Mexico paid sick leave law became effective July 1, 2022 (see Law Firm Publication by Jackson Lewis P.C.).

New York

December 30, 2022: New York Governor Hochul signed S. 9149 into law, which provides that Workers' Compensation Board determinations must not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination that an employer-employee relationship exists. The law takes taking immediate effect. (See Law Firm Publication by Fisher Phillips LLP.)
December 28, 2022: New York Governor Hochul signed S. 9450, amending the New York Health and Essential Rights (HERO) Act, which requires employers with ten or more employees to allow employees to establish and administer joint employer-employee committees authorized to, among other tasks, raise workplace health and safety issues, review applicable policies, and participate in agency site visits. The amendment requires employer recognition of a joint committee within five business days. (N.Y. Lab. Law § 27-d; see also Practice Note, New York Employment Laws More Favorable to Employees: Workplace Health and Safety.)
December 23, 2022: New York Governor Hochul signed A. 6328A into law, taking immediate effect. The law adds citizenship and immigration status to the list of protected categories under the New York State Human Rights Law. The law prohibits employers from discriminating, harassing, or retaliating against any individual because of their citizenship or immigration status. "Citizenship or immigration status" is defined as "citizenship of any person or the immigration status of any person who is not a citizen of the United States." For more information on New York's anti-discrimination law, see Practice Note, New York State Human Rights Law (NYSHRL) Basics; for more on federal anti-discrimination law, see Practice Note, Discrimination Under IRCA: Basics.
December 21, 2022: Governor Hochul signed the Warehouse Worker Protection Act (S. 8922A/A. 10020A), which protects warehouse distribution workers from undisclosed or unlawful work speed quotas and those who fail to meet unlawful quotas. For more information, see Practice Note, New York Employment Laws More Favorable to Employees.
December 21, 2022: Governor Hochul signed S. 9427A into law, taking effect on September 17, 2023. The law requires employers with four or more employees to include the compensation or its range for any job advertisement that can or will be performed, at least in part, in New York. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
December 16, 2022: New York Governor Hochul signed S. 6805 amending N.Y. Lab. Law § 201 to require employers to make available electronically any documents that are required to be posted physically in the workplace under the New York Labor Law and under federal law or regulation. For more information, see Practice Note, New York Employment Laws More Favorable to Employees: Workplace Notices.
December 9, 2022: Governor Hochul signed into law an amendment (S. 4844) to the New York Labor Law expanding the protections for nursing employees effective June 9, 2023 (N.Y. Lab. Law § 206-c). For more information, see Practice Note, New York Employment Laws More Favorable to Employees: Lactation Break Leave and Designated Location for Expressing Breast Milk.
December 9, 2022: NYC Department of Consumer and Worker Protection announced that it was postponing enforcement of its automated decision tools law from January 1, 2023 until April 15, 2023 and will schedule another public hearing on the new law. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
November 21, 2022: Governor Hochul signed an amendment to the New York Labor Law that prohibits employers that maintain "no fault" attendance policies from assessing points or demerits for absences or otherwise disciplining employees who have used any absence protected under federal, state, or local law. The law takes effect February 20, 2023. (See Law Firm Publication by Fisher Phillips.)
October 18, 2022: In Palmer v. Amazon.com, Inc., the Second Circuit held that Section 11 of the New York Workers' Compensation Law does not preclude injunctive relief under N.Y. Lab. Law § 200 ( (2d Cir. Oct. 18, 2022)). For more on this case's COVID-19-related holding, see COVID-19: Employment Law and Development Tracker: New York.
September 25, 2022: NYC Department of Consumer and Worker Protection scheduled a public hearing on Monday, October 24, 2022, concerning proposed rules to implement a new law restricting the use of automated tools to screen employment candidates or employees for promotion within New York City. The restrictions are scheduled to become effective on January 1, 2023. (See
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
September 12, 2022: New York's Westchester County's salary transparency law, effective November 6, 2022, requires covered employers to comply with a salary posting requirement (see Law Firm Publication by Jackson Lewis P.C.).
June 23, 2022: New York City finalized new fair workweek regulations and just cause laws (see Law Firm Publication by Fisher Phillips).
May 12, 2022: New York City mayor signed amended salary disclosure bill into law (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
May 2, 2022: New York workers cannot bring wage notice claims in federal court (see Law Firm Publication by Fisher Phillips).
April 9, 2022: New York state budget increased minimum wage for home care workers (see Law Firm Publication by Ford Harrison).
March 31, 2022: New York City issued guidance on new salary range law (see Law Firm Publication by Constangy, Brooks, Smith & Prophete, LLP).
March 16, 2022: New York enacted new laws to strengthen employee harassment and retaliation protections (see Law Firm Publication by Fisher Phillips).
January 15, 2022: New York City enacted salary transparency law (see Law Firm Publication by Fisher Phillips).

Ohio

March 30, 2022: Ohio enacted changes to overtime exemption laws and class/collective action procedures (see Law Firm Publication by Epstein Becker Green).

Oregon

December 15, 2022: In Buero v. Amazon.com Services, Inc., the Oregon Supreme Court held that "just as under federal law, whether time spent waiting for and undergoing mandatory security screenings on an employer's premises is compensable under Oregon law depends on whether the screenings are either (1) an integral and indispensable part of an employee's principal activities or (2) compensable as a matter of contract, custom, or practice" (370 Or. 502 (Or. 2022); see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
November 21, 2022: Oregon approved temporary rules changing how Paid Leave Oregon counts employees to determine employer size for employer contribution purposes. The temporary rules are effective November 22, 2022 through May 20, 2023, and apply to contributions beginning January 1, 2023.
October 24, 2022: The Oregon Employment Department has issued a model notice poster for employers to inform employees about rights and requirements under Paid Leave Oregon, which employers must post at each worksite and share electronically or by mail with remote workers by January 1, 2023 (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
October 7, 2022: Oregon and Washington issued a joint letter on how to report employees for their respective state paid leave programs, which provides guidance regarding several scenarios related to "place of performance" or "localization" and clarifies the state where employers should report an employee's subject wages (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
June 15, 2022: Oregon OSHA adopted heat illness prevention standard (see Law Firm Publication by Jackson Lewis P.C.).

Pennsylvania

August 5, 2022: Pennsylvania updated overtime rules for salaried nonexempt employees (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
March 29, 2022: Pennsylvania regulatory commission approved expansive tipped employee regulations (see Law Firm Publication by Jackson Lewis P.C.).

Puerto Rico

December 27, 2022: Puerto Rico passed the Fair Internships Act, Act No. 114-2022, seeking to protect students and recent graduates by guaranteeing paid internships and establishing other legal rights for interns (see
Law Firm Publication
by Jackson Lewis P.C.).
November 2, 2022: Puerto Rico Department of Labor published model protocol to prevent and manage cases of sexual harassment in employment (see
Law Firm Publication
by Jackson Lewis P.C.).
October 14, 2022: Puerto Rico amended its disability discrimination statute (Law 44-1985), the local counterpart of the ADA, to extend coverage to registered and authorized medical cannabis patients. The amendment (Law 90-2022) went into effect on October 14, 2022 when signed by Governor Pedro Pierluisi. (See
Law Firm Publication
by Jackson Lewis P.C.)
September 28, 2022: The Governor of Puerto Rico signed into law Act 82-2022, which amends its sexual harassment law (Act 17-1988) to expand its coverage to interns and require employers to adopt a protocol to investigate sexual harassment allegations (see
Law Firm Publication
by Jackson Lewis P.C.).
June 21, 2022: Puerto Rico reversed portions of the 2017 Employment Reform Law (see Law Firm Publication by Jackson Lewis P.C.).

Rhode Island

June 28, 2022: Rhode Island enacted tip protection law (see Law Firm Publication by Epstein Becker Green).
May 25, 2022: Rhode Island legalized recreational marijuana and protects off-duty use (see Law Firm Publication by Jackson Lewis P.C.)

South Carolina

November 14, 2022: The South Carolina Human Affairs Commission revised its employment anti-discrimination poster (see
Law Firm Publication
by Ogletree Deakins).

Texas

May 20, 2022: Texas Supreme Court clarified standard for payment of commissions when an employment agreement is silent (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Vermont

December 19, 2022: Vermont Governor Phil Scott announced that the Vermont Family and Medical Leave Insurance Plan would roll out for state workers in 2023 and expand to private employers in 2024. The program is voluntary in the private sector and will provide Vermont workers with 60% wage replacement for up to six weeks of work in a 12-month period for qualifying events. (See
Law Firm Publication
by Jackson Lewis P.C.)

Virginia

July 1, 2022: Virginia returned to FLSA overtime standards (see Law Firm Publication by Jackson Lewis P.C.).

West Virginia

March 25, 2022: West Virginia enacted changes to payroll card method of wage payment (see Law Firm Publication by Jackson Lewis P.C.).

Washington

November 30, 2022: The Washington State Department of Labor and Industries (L&I) released its final administrative policy regarding the Washington Equal Pay and Opportunities Act (ES E. 1) regarding employer compliance with the new wage disclosure requirements beginning on January 1, 2023 (RCW 49.58.110). (See
Law Firm Publication
by Seyfarth Shaw LLP.)
November 1, 2022: The Washington Supreme Court upheld amendments to the state's prevailing wage statute that pins the wage rate to the highest collective bargaining statute in each separate county (see
Law Firm Publication
by Fisher Phillips).
October 11, 2022: The Seattle Office of Labor Standards released a Fact Sheet on the city's Independent Contractor Protections Ordinance, which took effect September 1, 2022, offering guidance on the implementation of new pay protections for independent contractors (see
Law Firm Publication
by Jackson Lewis P.C.).
October 10, 2022: Washington's Employment Security Department released a draft administrative policy with updated guidance on the modified pay transparency requirements beginning January 1, 2023 (see
Law Firm Publication
by Jackson Lewis P.C.).
October 7, 2022: Oregon and Washington issued a joint letter on how to report employees for their respective state paid leave programs, which provides guidance regarding several scenarios related to "place of performance" or "localization" and clarifies the state where employers should report an employee's subject wages (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
September 30, 2022: Washington announced 2023 minimum wage rate and salary thresholds (see
Law Firm Publication
by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
June 9, 2022: Seattle enacted an ordinance to provide minimum wage and other Protections for App-Based Delivery Workers (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
June 9, 2022: Washington amended its Paid Family and Medical Leave Act waiting period, effective June 9, 2022 (see Law Firm Publication by Jackson Lewis P.C.).
June 1, 2022: Washington employers face new rules to protect workers from outdoor heat exposure and wildfire smoke, effective June 15, 2022 (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
May 24, 2022: Washington prohibited the use of non-disclosure and non-disparagement clauses to restrict disclosure of discrimination and other illegal conduct, effective June 9, 2022 (see Law Firm Publication by Epstein Becker Green).
March 30, 2022: Washington employers will soon need to post salary information in job postings (see Law Firm Publication by Fisher Phillips).
March 22, 2022: Washington legislative session included various wage and hour and related developments for Q1 2022 (see Law Firm Publication by Jackson Lewis P.C.).
March 7, 2022: Washington amended its Paid Family and Medical Leave Act, effective June 9, 2022 (see Law Firm Publication by Jackson Lewis P.C.).

Wyoming

February 25, 2022: Wyoming Supreme Court eliminated a blue pencil rule that allowed courts to revise unenforceable non-compete agreements (see Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

2022 Labor & Employment Law Developments Tracker | Practical Law