2023 Labor & Employment Law Developments Tracker | Practical Law

2023 Labor & Employment Law Developments Tracker | Practical Law

A Practice Note tracking key US labor and employment law developments, including federal and state court decisions, laws, regulations, and administrative agency guidance decided, enacted, or issued in 2023. The developments tracked here relate to all areas of employment law, excluding traditional labor law, immigration law, and legal developments concerning the COVID-19 pandemic, which are tracked in separate resources.

2023 Labor & Employment Law Developments Tracker

Practical Law Practice Note w-038-0944 (Approx. 98 pages)

2023 Labor & Employment Law Developments Tracker

by Practical Law Labor & Employment
Law stated as of 31 Dec 2023Alabama, Alaska, Arizona...Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, USA (National/Federal), Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming
A Practice Note tracking key US labor and employment law developments, including federal and state court decisions, laws, regulations, and administrative agency guidance decided, enacted, or issued in 2023. The developments tracked here relate to all areas of employment law, excluding traditional labor law, immigration law, and legal developments concerning the COVID-19 pandemic, which are tracked in separate resources.
For information on developments from 2022, see 2022 Labor & Employment Law Developments Tracker.
For key US immigration developments, see 2023 US Immigration Developments Tracker.
For key US traditional labor law developments, see 2023 Traditional Labor Law Developments Tracker.
For key federal and state employment laws, regulations, and other directives responding to COVID-19, see COVID-19: Employment Law and Development Tracker.

What's New

  • December 27, 2023: The Hawaii State Department of Labor and Industrial Relations (DLIR) announced that the minimum wage will rise to $14 per hour beginning on January 1, 2024. The minimum wage will thereafter increase incrementally to $16 per hour on January 1, 2026, and to $18 per hour on January 1, 2028.
  • December 22, 2023: Governor Hochul vetoed A.1278, which would have banned non-competes. (See Practice Note, New York Employment Laws More Favorable to Employees: Prohibited and Restricted Agreements.)
  • December 22, 2023: The Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued a final rule implementing Executive Order 14063 (87 Fed. Reg. 7363 (Feb. 4, 2022)), which requires the use of project labor agreements (PLAs) on large-scale federal construction projects where the total estimated cost to the federal government is at least $35 million, subject to limited exceptions. The final rule is effective on January 22, 2024. (88 Fed. Reg. 88708 (Dec. 22, 2023).)
  • December 19, 2023: The DOL's Mine Safety and Health Administration (MSHA) announced that on December 20, 2023, it is publishing a final rule to help protect miners from accidents, injuries, and fatalities concerning surface mobile equipment (Safety Program for Surface Mobile Equipment, 88 Fed. Reg. 87904 (Dec. 20. 2023)).
  • December 18, 2023: In Olson v. California, the Ninth Circuit ordered that the case be reheard en banc and that the March 17, 2023 three-member panel opinion be vacated. In that opinion, the Ninth Circuit panel held that Postmates, Uber, and food delivery drivers who used those platforms plausibly alleged that California Assembly Bill 5 (A.B. 5), as amended, violates the Equal Protection Clause. (Olson v. California, (9th Cir. Dec. 18, 2023); see Ninth Circuit.)
  • December 14, 2023: The Washington State Department of Labor & Industries finalized and adopted new rules focused on protecting workers from wildfire smoke hazards that take effect on January 15, 2024. The new rules largely incorporate the emergency rules adopted in June 2022 but also have a new exemption, revised definitions, and additional clarifications on employer obligations. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • December 14, 2023: The DOL's Education & Training Administration announced that it would soon issue an NPRM intended to improve the National Apprenticeship System by updating registered apprenticeship regulations. The pre-publication copy of the NPRM, National Apprenticeship System Enhancements, is available on the ApprenticeshipUSA website. Interested parties may submit written comments concerning the proposed rule within 60 days after its publication in the Federal Register, which will occur soon. (See National Apprenticeship System Enhancements, 89 Fed. Reg. 3118 (Jan. 17, 2024).)
  • December 14, 2023: The Department of Labor's Wage and Hour Division (DOL WHD) published a final rule finalizing regulations to implement Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts. EO 14055 established 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. This final rule is effective February 12, 2024, and applies to solicitations on or after that date. (Nondisplacement of Qualified Workers Under Service Contracts, 88 Fed. Reg. 86736 (Dec. 14, 2023).)
  • December 14, 2023: The California Occupational Safety and Health Standards Board adopted an emergency temporary standard (ETS) addressing occupational silicosis among the engineered stone fabricating industry employees. The ETS amends California Code of Regulations Title 8, section 5204 and becomes effective for one year starting December 29, 2023. The California Division of Occupational Safety and Health is expected to address the ETS and potentially made the amendment permanent through rulemaking. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • December 14, 2023: The California Labor Commissioner published an updated Wage Theft Prevention template to include an Emergency or Disaster Disclosure section required as of January 1, 2024 under the recently enacted AB 636 and updates to the Paid Sick Leave section to be consistent with the recently enacted SB 616, which goes into effect January 1, 2024. (See by Davis Wright Tremaine LLP.)
  • December 14, 2023: Illinois's Cook County Board of Commissioners passed the Cook County Paid Leave Ordinance, converting the Cook County Earned Sick Leave Ordinance into an ordinance requiring general paid leave. Previously, under the Earned Sick Leave Ordinance, employers were required to provide 40 hours of earned sick leave per year to all employees in Cook County. Effective January 1, 2024, the new Paid Leave Ordinance requires employers to provide 40 hours of paid leave to be used for any reason. A link to the full text of the Paid Leave Ordinance is available on the Board of Commissioners website. The Cook County Commission on Human Rights notes that the enforcement date for the ordinance in February 1, 2024; however, employers should monitor the Commission on Human Right's website for any notices or guidance in preparation for the ordinance's January 1, 2024 effective date.
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.

Ninth Circuit

  • July 21, 2023: The Ninth Circuit, on reconsideration, affirmed the district court's denial of the employer's motion to compel arbitration, holding that the truck drivers delivering ingredients from a California supply chain center to California franchisees are of a class of workers engaged in interstate commerce and therefore exempt from coverage under the Federal Arbitration Act (FAA) (Carmona v. Domino's Pizza, LLC, (9th Cir. July 21, 2023)).
  • February 15, 2023: The Ninth Circuit held in Chamber of Commerce of the US v. Bonta, that the Federal Arbitration Act (FAA) preempts California's Assembly Bill 51 (A.B. 51) and enjoined enforcement of the statute. A.B. 51 made it a criminal offense for an employer to require a current employee or an applicant to enter into an arbitration agreement as a condition of employment but did not invalidate agreements entered into in violation of the law. ( (9th Cir. Feb. 15, 2023) (decided after panel granted sua sponte rehearing, withdrew previous decision, and resubmitted the case on Aug. 22, 2022).)

Department of Defense (DoD)

  • December 22, 2023: The Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued a final rule implementing Executive Order 14063 (87 Fed. Reg. 7363 (Feb. 4, 2022)), which requires the use of project labor agreements (PLAs) on large-scale federal construction projects where the total estimated cost to the federal government is at least $35 million, subject to limited exceptions. The final rule is effective on January 22, 2024. (88 Fed. Reg. 88708 (Dec. 22, 2023).)

DOL

  • November 3, 2023: The DOL announced that it has published sample agreements for domestic workers, including house cleaners, home care workers, and nannies. They are available on the DOL's Women's Bureau website.

NLRB

  • October 27, 2023: The National Labor Relations Board (NLRB) issued a final rule establishing a new standard for determining joint-employer status under the National Labor Relations Act (NLRA) and rescinding the agency's prior joint employer rule promulgated in 2020. Under the new standard, two or more entities will be considered joint employers of a group of employees if they have an employment relationship with those employees and share or codetermine at least one of the following essential terms and conditions of employment:
    • wages, benefits, and other compensation;
    • hours of work and scheduling;
    • assignment of duties to be performed;
    • supervision of the performance of duties;
    • work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
    • tenure of employment, including hiring and discharge; and
    • working conditions concerning employee safety and health.
    The agency has since delayed the effective date of the final rule to February 26, 2024.
  • May 30, 2023: The NLRB General Counsel issued General Counsel Memorandum 23-08 condemning most employment non-compete agreements as unlawfully interfering with employees’ exercise of rights under Section 7 of the National Labor Relations Act (NLRA). The General Counsel noted that non-compete agreements could be lawful if the provisions:
    • clearly restrict only individuals' managerial or ownership interests in a competing business or concern true independent-contractor relationships; or
    • are sufficiently narrowly tailored that any infringement on employee rights may be justified by special circumstances. The memorandum provides no examples of narrowly-tailored language or special circumstances.
    The General Counsel affirmed the NLRB's commitment to partnering with the Federal Trade Commission and the Department of Justice's Antitrust Division to share information and refer matters across agencies to address limits on worker job mobility. Employers should note that General Counsel memoranda do not have the force of binding Board precedent, but direct under which circumstances Regional Directors are to issue and prosecute ULP complaints flowing from ULP charges. Employers should also note that not all employers and workers are covered by the NLRA or therefore within the General Counsel's sphere of prosecution. (Non-Compete Agreements that Violate the National Labor Relations Act, NLRB Gen. Counsel Mem. GC 23-08 (May 30, 2023; for more information on the NLRB's jurisdiction, see NLRB Jurisdictional Limits and Standards Chart.)
  • February 21, 2023: In McLaren Macomb, the NLRB held that a severance agreement prohibiting employees from making disparaging remarks about their employer or disclosing the terms of the agreement to others (including former co-workers), and an employer's proffer of such an agreement, violates Section 8(1)(a) of the NLRA (372 N.L.R.B. No. 58 (Feb. 21, 2023)). This decision focuses on the terms of the agreement, not the circumstances under which the employer presented it, and therefore overrules Baylor University Medical Center and IGT d/b/a International Game Technology (369 N.L.R.B. No. 43 (Mar. 16, 2020); 370 N.L.R.B. No. 50 (Nov. 24, 2020)). For more information, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.

Discipline & Internal Investigations

Discrimination, Harassment & Retaliation

US Supreme Court

  • June 29, 2023: In Groff v. DeJoy, the US Supreme Court unanimously created a higher standard for employers to measure the burden a worker's religious accommodation request would impose on its business saying that "Title VII requires an employer denying a religious accommodation to show that the burden of granting it would result in substantial increased cost in relation to the conduct of its particular business" ( (U.S. June 29, 2023)).

Second Circuit

  • September 7, 2023: In Banks v. General Motors, the Second Circuit reiterated that a single incident can qualify as "severe or pervasive" for Title VII discrimination purposes, actionable claims do not require tangible or economic harm, and incidents outside the limitations period can be considered in connection with hostile work environment claims. The court also concluded that delaying an employee's return to work and reassigning them to a less desirable position on their return could support a prima facie case of retaliation. ( (2d Cir. Sept. 7, 2023).)
  • August 18, 2023: In Tafolla v. Heilig, the Second Circuit explained that the last act in the interactive process under the ADA is not always the reason that process breaks down. Courts must consider the entire process to determine if a party's bad faith led to the breakdown. Here, the district court should have considered what occurred between the parties before the plaintiff's decision not to return. ( (2d Cir. Aug. 18, 2023) (citing E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 806 (7th Cir. 2005)).)
  • August 7, 2023: In Carr v. New York City Transit Authority, the Second Circuit clarified the appropriate standard to apply to a hostile work environment retaliation claim and held that as part of their prima facie case, a plaintiff must establish that they were "subjected to a retaliatory action, or a series of retaliatory actions, that were materially adverse," meaning that the action or actions "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination" (, at *5 (2d Cir. Aug. 7, 2023)). The court rejected defendant's argument that the plaintiff must show the retaliatory actions were so "severe and pervasive" that they altered the terms and conditions of employment, as is required for a direct hostile work environment claim (, at *6).
  • January 23, 2023: In Syeed v. Bloomberg L.P., the Second Circuit certified to the New York Court of Appeals the question of whether a nonresident plaintiff not yet employed in New York City or state satisfies the impact requirement of the New York City Human Rights Law (NYCHRL) or the New York State Human Rights Law (NYSHRL) if the plaintiff pleads and later proves that an employer deprived the plaintiff of a New York City- or state-based job opportunity on discriminatory grounds.

Third Circuit

  • April 3, 2023: In Jacobs Project Mgmt Co. v. United States Dep't of Interior, the Third Circuit held that the statutory deadlines in 41 USC § 4712 are a "spur to prompt [federal] agency action" and not a jurisdictional bar if the agency misses a deadline ( (3d Cir. April 3, 2023)).
  • January 4, 2023: In Jaludi v. Citigroup & Co., the Third Circuit held that although the 180-day limitations period to file a written complaint with OSHA under Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) and the exhaustion of administrative remedies requirement are not jurisdictional, the plaintiff's failure to file an administrative complaint within two years of the alleged misconduct warranted dismissal with prejudice ( (3d Cir. Jan. 4, 2023)).

Fourth Circuit

  • August 16, 2023: In Israelitt v. Enterprise Servs. LLC, the Fourth Circuit clarified that an actionable ADA retaliation claim requires a "materially adverse" action causing "significant" harm. The court also affirmed the lower court's holding that the plaintiff's arthritic toe, for which they had not sought treatment in over a decade, was not a disability under the statute. ( (4th Cir. Aug. 16, 2023).)
  • July 10, 2023: In Resendiz v. Exxon Mobil Corp., the Fourth Circuit held that an employer did not commit discrimination against aliens under 42 U.S.C. § 1981 by refusing to hire an immigrant who did not have permanent work authorization ( (4th Cir. July 10, 2023)).

Fifth Circuit

  • July 21, 2023: In Mueck v. La Grange Acquis'n, L.L.P., the Fifth Circuit joined its sister circuits in holding that, after the ADAAA's passage, an impairment need not be “permanent or long-term” to qualify as a disability under the ADA. The inquiry as to whether a limitation is a substantial limitation on a major life activity depends on "whether [the plaintiff's] impairment substantially limits [the plaintiff's] ability to 'perform a major life activity as compared to most people in the general population.'" (, at *5-7 (5th Cir. July 21, 2023) (as amended Aug. 4, 2023) (internal quotes omitted).)
  • June 20, 2023: In Braidwood Management, Inc., v. EEOC, addressing the EEOC's interpretations of sexual orientation and gender identity discrimination under Title VII, the Fifth Circuit affirmed a declaratory judgment that Braidwood, on an individual level, is exempt from Title VII because compliance with the EEOC's guidance would substantially burden its ability to operate according to its owner's religious beliefs, even though the EEOC had taken no enforcement action against the company. The Fifth Circuit also reversed certification of classes covering every US employer that opposes homosexual or transgender behavior for religious or nonreligious reasons and vacated the district court's judgment relating to the scope of Title VII claims after Bostock v. Clayton County, 140 S. Ct. 1731 (2020). ( (Jun. 20, 2023).)

Sixth Circuit

  • March 14, 2023: In Ciraci v. J.M. Smucker Co., the Sixth Circuit held that a federal contractor, which does not perform a traditional, exclusive public function, does not attain government actor status by complying with a federal law applicable to federal contractors and, in turn, cannot be subject to a First Amendment Free Exercise Clause claim. The court therefore affirmed the dismissal of a Free Exercise Clause claim against J.M. Smucker Co. based on its alleged refusal to grant employees religious exemptions from the vaccine mandate applicable to federal contractors under Executive Order 14042 (see Exec. Order No. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50985 (Sept. 9, 2021)). The decision does not address any prospective Title VII religious discrimination claims or whether employees of federal contractors could raise a Free Exercise Clause claim against the federal government for imposing the mandate against federal contractors, because the plaintiffs did not raise those claims. (62 F.4th 278 (6th Cir. 2023).)
  • January 25, 2023: In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that an employee's initial request for leave is protected under the FMLA, even if the employee is ultimately found to be ineligible for leave ( (6th Cir. Jan. 25, 2023)).

Seventh Circuit

  • November 20, 2023: In Smithson v. Austin, the Seventh Circuit held as a matter of law that regularly delaying a teacher's arrival to work by two hours on school days is not a reasonable accommodation under the Rehabilitation Act. That the employer previously allowed late arrival on a limited basis does not mean that physical attendance at school is not an essential function. ( (7th Cir. Nov. 20, 2023).)
  • July 28, 2023: In EEOC v. Charter Communications, Inc., the Seventh Circuit held that a change in work schedule to accommodate a commute from home to the workplace may be a reasonable accommodation for a disability when presence at the worksite is required ( (7th Cir. July 28, 2023)). In this case, the employee had cataracts and found it difficult to drive in full darkness. The employer offered a temporary 30-day period for an earlier work schedule but refused to renew the accommodation. The court held that when an employee's presence is required in the workplace, a change in work schedule to accommodate a different commute may be a reasonable accommodation.

Eighth Circuit

  • July 28, 2023: In Kelly v. Omaha Public Power District, the Eighth Circuit held that an employer's policy to not cover educational costs for employees was not discriminatory to former military service member because the policy denied reimbursement to anyone whose costs were covered in full by another benefit, not just the GI bill ( (8th Cir. July 28, 2023)). The court explained that USERRA prohibits discrimination based on military service and that the employer's policy did not deny the plaintiff's benefits because of his military service, but because he received duplicative educational reimbursement from another source (the GI bill).

Ninth Circuit

  • November 30, 2023: In Sanders v. County of Ventura, the Ninth Circuit held that opt-out fees derived from employees opting out of union and employer-sponsored health plans are not part of their regular rate of pay for calculating overtime compensation under the FLSA. The court found that Section 207(e)(4) of the FLSA exempts these opt-out fees from the regular rate of pay under because they are "contributions irrevocably made by an employer to a trustee or third person under a bona fide plan for providing health insurance." ( (9th Cir. Nov. 30, 2023).)
  • June 7, 2023: In Sharp v. S&S Activewear, L.L.C., the Ninth Circuit held that sexually graphic and violently misogynistic music audible throughout the workplace can create a hostile work environment, even if not targeted at a specific person and where both men and women are offended by it. The court rejected the employer's "equal opportunity harasser" defense. ( (9th Cir. June 7, 2023).)
  • February 21, 2023: In Kappouta v. Valiant Integrated Servs., LLC, the Ninth Circuit held that plaintiff's retaliatory discharge claim under the Defense Contractor Whistleblower Protection Act (DCWPA) arising from plaintiff's report of a co-worker shoving her at a bar did not allege a sufficient nexus between the shoving incident and the DoD contract under which she was employed to warrant protection under the DCWPA ( (9th Cir. Feb. 21, 2023)).

Eleventh Circuit

  • December 13, 2023: In Lapham v. Walgreen Co., the Eleventh Circuit held as a matter of first impression for the circuit that the proper causation standard for retaliation claims under the FMLA and Florida's Private Sector Whistleblower Act (FWA) is but-for causation. The court concluded that the retaliation provisions of both the FMLA and the FWA are sufficiently similar to the retaliation provision of Title VII for Nassar to be instructive (Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013) (the proper standard for Title VII retaliation claims is but-for causation); compare 42 U.S.C. § 2000e-3(a) with 29 U.S.C. § 2615(a)(2) and Fla. Stat. Ann. § 448.102). The court also affirmed the district court's grant of summary judgment on the plaintiff's FMLA and FWA retaliation claims and FMLA interference claim ( (11th Cir. Dec. 13, 2023).)
  • December 12, 2023: In Tynes v. Florida Dep't of Juvenile Justice, the Eleventh Circuit held that the McDonnell-Douglas test is merely an evidentiary framework and not an independent standard of liability in Title VII discrimination cases. The ultimate question is whether there is sufficient evidence of discrimination. The lack of evidence of similarly situated comparators is not fatal to a plaintiff's claim. A plaintiff also may establish liability with a "convincing mosaic" of evidence sufficient to prove intentional discrimination. (88 F.4th 939 (11th Cir. 2023).)
  • September 25, 2023: In Ronnie v. Office Depot, LLC, the Eleventh Circuit deepened a circuit split regarding the pleading standard for a plaintiff in a Sarbanes-Oxley Act (SOX) retaliation case to demonstrate that they had a "reasonable belief" of a SOX violation. The court adopted a "totality of the circumstances" approach and held that while the plaintiff need not "definitively and specifically" allege each element of the violation or identify the specific SOX provision that was violated, the plaintiff must make more than conclusory allegations of a SOX violation. Allegations of the elements of fraud (scienter, materiality, reliance, and economic loss) are relevant to the totality of the circumstances analysis. (, at *3-4 (11th Cir. Sept. 25, 2023).)
  • September 8, 2023: In Ossmann v. Meredith Corp., a divided Eleventh Circuit panel concluded that the employer's use of an "EEO Analysis" form that included data on the race of all employees on the plaintiff's team when terminating the plaintiff was not evidence of pretext or intentional discrimination. Earlier precedent did not establish that using a document that includes race to facilitate an employment decision could alone create a reasonable inference of intentional discrimination. ( (11th Cir. Sept. 8, 2023) (citing Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) and distinguishing Students for Fair Admissions, Inc. v. Harvard, 143 S.Ct. 2141 (2023).)

Office of the President

  • October 30, 2023: President Biden signed an Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence. The comprehensive order sets new standards for AI safety and security, directing federal agencies to assess the potential risks of and implement policy on advancing and using AI technology in accordance with eight guiding principles and priorities. As most relevant to employers and employees, the order directs, among other things, the Secretary of Labor to:
    • in consultation with labor unions, workers, and other stakeholders develop principles and best practices to mitigate the harms and maximize the benefits of AI for works to prevent employers from undercompensating workers, evaluating job applications unfairly, or impinging on workers' ability to organize;
    • produce and submit to the President a report analyzing the federal agencies' abilities to support workers displaced by the adoption of AI and other technological advancements;
    • issue guidance clarifying that employers that deploy AI to monitor or augment employees' work must comply with compensation requirements under the FLSA and other laws and regulations; and
    • publish guidance for federal contractors regarding non-discrimination in hiring involving AI and other technology-based hiring systems.
  • February 23, 2023: The White House released a fact sheet on the Biden-⁠Harris Administration’s Work to Support Black Disabled Americans addressing, among other things, apprenticeship programs and the role of Black disabled workers in the economy.

EEOC

  • October 31, 2023: The EEOC announced that the 2022 EEO-1 Component 1 data collection is open. The deadline for submitting and certifying 2022 EEO-1 Component 1 Report(s) is December 5, 2023.
  • October 2, 2023: The EEOC published in the Federal Register a notice of Proposed Enforcement Guidance on Harassment in the Workplace. The proposed guidance presents a legal analysis of standards for harassment and employer liability applicable to claims of harassment under the EEO statutes enforced by the EEOC. The guidance, once finalized, would not have the force and effect of law but could be cited in court. The EEOC is seeking public comment through November 1, 2023. (88 Fed. Reg. 67750 (Oct. 2, 2023).)
  • September 21, 2023: The EEOC announced the release of its Strategic Enforcement Plan for fiscal years 2024-2028. Priorities under the plan include targeting discrimination against religious minorities, racial or ethnic groups, and LGBTQI+ individuals, highlighting the underrepresentation of women and workers of color in certain industries, and addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements.
  • August 22, 2023: The EEOC announced it has adopted a strategic plan for fiscal years 2022-2026. Priorities under the plan include an increased focus on system discrimination, improved conciliation agreement monitoring, and enhanced intake services to potential charging parties, respondents, and representatives.
  • August 7, 2023: The EEOC announced a Notice of Proposed Rulemaking (NPRM) implementing the Pregnant Workers' Fairness Act (PWFA) (to be codified at 29 C.F.R. §§ 1636.1 to 1636.8, with Interpretive Guidance as Appendix A to 29 C.F.R. Part 1636). The NPRM:
    • explains the EEOC's proposed interpretation of the PWFA, including by defining terms such as "temporary," "essential functions," and "communicated to the employer;"
    • provides many examples of possible reasonable accommodations;
    • seeks input on whether there should be more examples and if so for what scenarios; and
    • solicits information and comment on particular issues, including existing data quantifying the proportion of pregnant workers who need workplace accommodations and the average cost of pregnancy-related accommodations.
    The NPRM was published on August 11, 2023, and comments must be submitted by October 10, 2023 (88 Fed. Reg. 54714 (Aug. 11, 2023)).
  • July 26, 2023: The EEOC announced updated guidance in a technical assistance document on the Americans with Disabilities Act (ADA) and individuals with visual disabilities in the workplace. The updated guidance includes information about new technologies for reasonable accommodation and describes how employment decisions made using AI and algorithms can impact individuals with visual disabilities.
  • June 27, 2023: The EEOC announced the release of additional guidance regarding the Pregnant Workers Fairness Act (PWFA), enacted in December 2022 and effective June 27, 2023. The new guidance includes educational resources and a revised "Know Your Rights" poster required to be posted in most workplaces.
  • May 31, 2023: The EEOC Chair issued a new report, Building for the Future: Advancing Equal Employment Opportunity in the Construction Industry, which outlines next steps for the EEOC, including developing industry-specific technical assistance for employers, unions, and workers.
  • May 18, 2023: The EEOC released a new resource on artificial intelligence (AI) and Title VII. This technical assistance document addresses whether an employer's selection procedures, specifically algorithmic decision-making tools and automated systems that incorporate AI, have an adverse or disparate impact on a basis that is prohibited by Title VII. (See EEOC: Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.)
  • April 25, 2023: The EEOC joined with DOJ, CFPB, and FTC officials to release a statement on artificial intelligence systems and their potential discriminatory impact in employment decision making.
  • January 24, 2023: The EEOC announced the release of an updated resource, "Hearing Disabilities in the Workplace and the Americans with Disabilities Act," explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions.
  • January 10, 2023: The EEOC seeks public comments on its draft strategic enforcement plan for fiscal years 2023-2027. Comments are due February 9, 2023.

OFCCP

  • August 3, 2023: The DOL announced a final rule, Pre-Enforcement Notice and Conciliation Procedures, to modify the OFCCP’s equal employment opportunity enforcement and resolution procedures regarding federal contractor compliance with E.O. No. 11246, Section 503 the Rehab Act, and the VEVRAA. The final rule is designed to promote greater consistency with Title VII and give the OFCCP more flexibility in enforcement proceedings by rescinding the evidentiary standards and definitions of the final rule, Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination, which became effective December 10, 2020 (85 Fed. Reg. 71553 (Nov. 10, 2020)). The rule was published in the Federal Register on August 4, 2023, and becomes effective on September 5, 2023 (88 Fed. Reg. 51717 (Aug. 4, 2023)). On August 22, 2023, the agency published corrections to the final rule, which take effect September 5, 2023 (88 Fed. Reg. 57009).
  • March 14, 2023: The OFCCP announced the launch of the "Mega Construction Project Program," an initiative to help bring underrepresented communities into the workforce on construction projects valued at $35 million that are funded at least in part by the federal government and last more than one year. The OFCCP promises to remove barriers to opportunity by engaging community stakeholders, such as worker advocates, community-based organizations, and local recruitment sources, and conducting compliance reviews to evaluate contractors' anti-discrimination and equal opportunity practices.
  • March 1, 2023: The OFCCP published in the Federal Register a rescission of the rule "Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption," in effect since January 8, 2021. Effective March 31, 2023, the rescission returns the OFCCP to its prior policy and practice of interpreting and applying the religious exemption in E.O. 11246 consistent with Title VII principles and case law. (88 Fed. Reg. 12842 (March 1, 2023); see Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption, 85 Fed. Reg. 79324-01 (OFCCP Dec. 8, 2020).)
  • February 7, 2023: In a notice released on February 7, 2023, OFCCP posted an updated final notice of the agency's impending release of EEO-1 Type 2 (Consolidated) reports for 2016-2020 to all entities that may be subject to the Center for Investigative Reporting's Freedom of Information Act (FOIA) request for EEO-1 Type 2 data. The deadline for contractors appearing on the non-objectors list to respond has been extended from February 7, 2023, to 11:59 p.m. EST on February 17, 2023; see also by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • February 2, 2023: The OFCCP announced its posting of a list of contractors whose EEO-1 Type 2 data the agency will release on February 8, 2023. Contractors who believe their entity is incorrectly included must contact the OFCCP by email no later than 11:59 p.m. EST on February 7, 2023. Responses must include information supporting the contractor's view that the entity was not a federal contractor during this time or has previously submitted an objection to release.

OSHA (Directorate of Whistleblower Protection Programs)

  • October 31, 2023: OSHA announced that it entered a memorandum of understanding (MOU) with the National Labor Relations Board (NLRB) creating a formal partnership between the two agencies. The agencies intend to collaborate by sharing information, cross-training agency staff, and partnering on investigative efforts within their authority. Specifically, they plan to enforce anti-retaliation provisions to protect workers who raise concerns about workplace violations or retaliation. The NLRB also announced the MOU on its website.
  • March 13, 2023: OSHA published a Final Rule adopting as final the procedures and time frames for handling employee retaliation complaints under the Taxpayer First Act. The Final Rule, effective March 13, 2023, adopts the procedures and time frames established in OSHA's March 7, 2022 Interim Final Rule without substantive change. (88 Fed. Reg. 15271 (Mar. 13, 2023); see also OSHA Trade Release: US Department of Labor Issues Final Rule on Handling Retaliation Complaints Under Taxpayer First Act))
  • February 17, 2023. OSHA's year-long, nationwide pilot Whistleblower Protection Programs became effective. The pilot allows for a streamlined complaint intake triaging process under all statutes and administrative closure of complaints that:
    • are facially not covered by an OSHA-administered whistleblower statute;
    • are untimely filed, provided equitable tolling does not apply; or
    • allege safety or compliance concerns but not retaliation.

Employee Data, Monitoring & Privacy

Office of the President

  • May 1, 2023: The White House Office of Science and Technology Policy announced that it was releasing a public request for information to learn about the automated tools used by employers to surveil, monitor, evaluate, and manage workers. The deadline to submit responses is June 15, 2023.

Department of Transportation (DOT)

  • May 2, 2023: The DOT published a Final Rule amending their regulated industry drug testing program to include oral fluid testing. Although the Final Rule is effective on June 1, 2023, the DOT clarifies that employers cannot implement DOT-regulated oral fluid testing until the Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory, and a second to serve as a split specimen laboratory). (88 Fed. Reg. 27596 (May 2, 2023).)

Employment Litigation

DOL

Second Circuit

  • October 16, 2023: In Herrera v. Comme des Garcons, Ltd., the Second Circuit reversed the district court's dismissal of claims for unpaid overtime under the FLSA. In addressing the FLSA's pleading specificity requirements, the court clarified the standard derived from three 2013 cases requiring that plaintiffs "sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours" but need not provide a "week-by-week recounting" of all hours worked. Applying this standard, the court held that plaintiffs' plausible allegations that their regularly scheduled workweek required that they work more than 40 hours per week were sufficient to state an FLSA claim, even if they did not list the specific workweeks in which they did so. (84 F.4th 110, 114-117 (2d Cir. 2023) (internal citations omitted).)
  • May 3, 2023: In Loc. Union 97, Int'l Bhd. of Elec. Workers, AFL-CIO v. Niagara Mohawk Power Corp., the Second Circuit overturned prior circuit precedent that held that where the parties had agreed to a broad arbitration clause, the court would apply a presumption that a dispute was arbitrable even if it was related to an ancillary matter. The Second Circuit found that the rule was inconsistent with the Supreme Court's opinion in Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287 (2010), which held that courts should apply the presumption of arbitrability only if the agreement is "ambiguous about whether it covers the dispute at hand." (, at *3 (2d Cir. May 3, 2023).)

Southern District of New York

  • June 3, 2023: In a ruling contrary to the decision in Johnson v. Everyrealm, Inc., (S.D.N.Y. Feb. 24, 2023), the court held that collective wage and hour claims brought under the FLSA and NYLL "do not relate in any way" to the plaintiff's individual sexual harassment claims brought under the NYSHRL and NYCHRL and therefore, the plaintiff must arbitrate the FLSA and NYLL wage and hour claims but could not be compelled to arbitrate the NYSHRL and NYCHRL sexual harassment claims (Mera v. SA Hosp. Grp., LLC, (S.D.N.Y. June 3, 2023)).
  • February 24, 2023: In a pair of related cases (and among the first to address the scope of the arbitration ban under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) (9 U.S.C. §§ 401 and 402)), the court held that:
    • when a complaint alleges sexual harassment claims covered by the EFAA and other claims (such as race discrimination or pay inequality) not covered by the law, the EFAA bars mandatory arbitration of the entire case, not just the covered claims (Johnson v. Everyrealm, Inc., (S.D.N.Y. Feb. 24, 2023) (denying motion to compel arbitration of complaint that plausibly alleged sexual harassment among other claims); and
    • to be entitled to the protections of the EFAA, a sexual harassment claim must be plausibly pled under FRCP 12(b)(6) standards (Yost v. Everyrealm, Inc., (S.D.N.Y. Feb. 24, 2023) (dismissing former HR director's sexual harassment claims even under the more lenient NYCHRL standards and holding that remaining employment-related claims were covered by the scope employee's arbitration agreements, but directing further briefing on other arbitration-related issues before compelling arbitration)).

Third Circuit

  • April 26, 2023: The Third Circuit held in Singh v. Uber Techs., Inc. that Uber drivers do not fall under the Federal Arbitration Act's (FAA) exemption for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." The Third Circuit joined the First and Ninth Circuit's decisions finding that rideshare workers do not fall under the FAA exemption. ( (3d Cir. Apr. 26, 2023).)

Fifth Circuit

  • September 27, 2023: In Fleming v. Bayou Steel BD Hldgs. II L.L.C., the Fifth Circuit held as a matter of first impression that plaintiffs were not entitled to a jury trial under the Seventh Amendment on claims alleging WARN Act violations because the issues and remedies were more equitable than legal in nature. The court also held that whether a private equity firm could be held liable under the single-employer doctrine should be determined based on the five factors identified in the DOL's regulations (20 C.F.R. § 639.3(a)(2)) and that that issue of de facto control was sufficiently important that an entity could be found to be a single-employer even if that is the only factor weighing in favor of liability. The court ultimately found issues of fact as to the private equity firm's de facto control and reversed summary judgment in its favor. ( (5th Cir. Sept. 27, 2023).)
  • August 18, 2023: In Hamilton v. Dallas County, the Fifth Circuit rejected its earlier precedent limiting actionable Title VII claims to those involving "ultimate employment decisions," such as hiring, promotions, and leave, and adopted a broad reading of "terms, conditions, or privileges of employment." The court explained that the prior limitation had no textual basis and led to some "remarkable conclusions." Here, plaintiffs' claims regarding a policy allowing men to select two weekend days as their two days off each week but allowing women to select at most one weekend day were dismissed under the earlier limitation but satisfied the new standard with "little difficulty." ( (5th Cir. Aug. 18, 2023).)

Sixth Circuit

  • May 19, 2023: In Clark v. A&L Homecare & Training Ctr., LLC, the Sixth Circuit held that for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a "strong likelihood" that those employees are similarly situated to the plaintiffs themselves (that is, a showing greater than the one necessary to create a genuine issue of fact but less than the one necessary to show a preponderance of the evidence) ( (6th Cir. May 19, 2023)).

Ninth Circuit

  • July 21, 2023: The Ninth Circuit, on reconsideration, affirmed the district court's denial of the employer's motion to compel arbitration, holding that the truck drivers delivering ingredients from a California supply chain center to California franchisees are of a class of workers engaged in interstate commerce and therefore exempt from coverage under the Federal Arbitration Act (FAA) (Carmona v. Domino's Pizza, LLC, (9th Cir. July 21, 2023)).
  • February 15, 2023: The Ninth Circuit held in Chamber of Commerce of the US v. Bonta, that the Federal Arbitration Act (FAA) preempts California's Assembly Bill 51 (A.B. 51) and enjoined enforcement of the statute. A.B. 51 made it a criminal offense for an employer to require a current employee or an applicant to enter into an arbitration agreement as a condition of employment, but did not invalidate agreements entered into in violation of the law. ( (9th Cir. Feb. 15, 2023) (decided after panel granted sua sponte rehearing, withdrew previous decision, and resubmitted the case on Aug. 22, 2022).)
  • February 14, 2023: The Ninth Circuit issued an amended opinion in Bowerman v. Field Asset Servs., Inc., holding that the district court improperly granted class certification on independent contractors' overtime and expense reimbursement claims under California law, reversing final judgment for individual plaintiff claims and the resulting interim fee award, and denying the plaintiffs' petition for rehearing and rehearing en banc rehearing ( (9th Cir. Feb. 14, 2023), amending and superseding 39 F.4th 652 (9th Cir. July 5, 2022)).

Eleventh Circuit

  • December 12, 2023: In Tynes v. Florida Dep't of Juvenile Justice, the Eleventh Circuit held that the McDonnell-Douglas test is merely an evidentiary framework and not an independent standard of liability in Title VII discrimination cases. The ultimate question is whether there is sufficient evidence of discrimination. The lack of evidence of similarly situated comparators is not fatal to a plaintiff's claim. A plaintiff also may establish liability with a "convincing mosaic" of evidence sufficient to prove intentional discrimination. (88 F.4th 939 (11th Cir. 2023).)

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.

Third Circuit

  • January 31, 2023: The Third Circuit held, as a matter of first impression, that relief sought by employees under § 662(d) of the OSH Act, whether for a writ of mandamus compelling OSHA to seek an injunction or "such further relief as may be appropriate," is not available after OSHA's standard enforcement proceedings are completed (Doe I v. Scalia, (3d Cir. Jan. 31, 2023)).

Sixth Circuit

  • August 23, 2023: In Allstates Refractory Contractors, LLC v. U.S. Dept. of Labor, the Sixth Circuit upheld as constitutional OSHA's authority to set reasonably necessary or appropriate workplace-safety standards, holding that the OSH Act satisfies the nondelegation doctrine ( (6th Cir. Aug. 23, 2023)).

Eleventh Circuit

  • May 30, 2023: In Chewy, Inc. v. U.S. Dep't of Lab., the Eleventh Circuit held that the employer cannot be held liable under the general duty clause because it complied with a specific standard that already addresses the under-ride hazard, 29 C.F.R. § 1910.178 ( (11th Cir. May 30, 2023)).

OSHA

  • November 8, 2023: OSHA established a Regional Emphasis Program for programmed inspections to reduce workplace fatalities and injuries in the landscaping and horticultural services industries, which includes employers in American Samoa, Arizona, California, Guam, Hawaii, the Northern Mariana Islands, and Nevada.
  • October 31, 2023: OSHA announced that it entered a memorandum of understanding (MOU) with the National Labor Relations Board (NLRB) creating a formal partnership between the two agencies. The agencies intend to collaborate by sharing information, cross-training agency staff, and partnering on investigative efforts within their authority. Specifically, they plan to enforce anti-retaliation provisions to protect workers who raise concerns about workplace violations or retaliation. The NLRB also announced the MOU on its website.
  • September 25, 2023: OSHA announced that it is launching a new initiative focused on enhancing enforcement and providing compliance assistance to protect workers in the engineered stone fabrication and installation industries from exposure to silica dust.
  • August 29, 2023: OSHA announced that it is publishing a notice of proposed rulemaking to amend agency regulations regarding who can be authorized by employees to act as their representative to accompany OSHA compliance officers during physical workplace inspections. The proposed rule will allow employees to authorize an employee or a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.
  • July 17, 2023: The Department of Labor (DOL) announced that the Occupational Safety and Health Administration (OSHA) intends to publish a final rule on July 21, 2023 amending its regulations to require certain employers in designated high-hazard industries to electronically submit injury and illness information to OSHA. Among the amendments, which become effective January 1, 2024, is a new requirement that employers with 100 or more employees in certain high-hazard industries to electronically submit information from their Form 300-Log of Work-Related Injuries and Illnesses, and Form 301-Injury and Illness Incident Report to OSHA once a year. These submissions are in addition to submission of Form 300A-Summary of Work-Related Injuries and Illnesses. For more information, see the final rule as published (88 Fed, Reg. 47254 (July 21, 2023)).
  • July 13, 2023: OSHA announced that it has begun a National Emphasis Program to prevent workplace hazards in warehouses, processing facilities distribution centers, and high-risk retail establishments. Under the emphasis program, OSHA will, among other things, conduct comprehensive safety inspections focused on hazards related to powered industrial vehicle operations, material handling and storage, walking and working surfaces, means of egress, fire protection, and heat. It will also inspect retail establishments with high injury rates. (See OSHA Instruction Notice: National Emphasis Program on Warehousing and Distribution Center Operations, July 13, 2023.)
  • June 22, 2023: The DOL announced that OSHA and other government agencies will hold a series of discussions on the potential impacts of a workplace heat standard on small businesses and urged small business owners and representatives from local government entities to participate.
  • June 15, 2023: The DOL announced that OSHA's area office for Dallas and Fort Worth, Texas signed an agreement with the Mexican consulate in Dallas. The two-year alliance offers information, guidance, and workers' rights resource to Spanish-speaking employers and workers in North Texas.
  • June 9, 2023: OSHA announced that it has a comprehensive website with safety tips and resources to help employers and workers reduce their exposure to smoke during wildfires.
  • May 1, 2023: OSHA announced that it has begun a National Emphasis Program to prevent falls, the leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections. The program establishes guidance for locating and inspecting fall hazards and allows OSHA compliance safety and health officers to open inspections whenever they observe someone working at heights.
  • February 17, 2023: In Secretary of Labor v. USPS, (O.S.H.R.C. Feb. 17, 2023), the OSHRC found that OSHA successfully established a general duty clause violation by showing both that an excessive heat hazard was present at the worksite and the USPS could have feasibly and materially reduced that hazard by providing effective training on heat safety to all employees, including supervisors. The decision also cites to OSHRC's heat hazard analysis in a related case (, at *7 (O.S.H.R.C. Feb. 17, 2023)).
  • February 16, 2023: OSHA announced that it is seeking public comments on modernizing its Voluntary Protection Program (VPP). The VPP recognizes workplaces demonstrating best practices in safety and health management and serve as industry models.
  • February 15, 2023: OSHA announced that is has renewed a two-year alliance with the Consulate of Mexico to provide safety training and resources to Mexican nationals working in Colorado in an effort educate them on their rights and employers’ responsibilities under the OSH Act.
  • February 14, 2023: OSHA announced that it will withdraw its proposal to reconsider and revoke final approval of Arizona's State Plan for occupational safety and health, leaving the state's plan in place (88 Fed. Reg. 9796, withdrawing proposed rule published on April 21, 2022, at 87 Fed. Reg. 23783, effective February 15, 2023).
  • February 7, 2023: OSHA issued a new directive, CPL-02-01-064 continuing its Site-Specific Targeting Program as part of its "programmed" inspection arsenal.
  • January 26, 2023: OSHA announced new enforcement guidance that make the agency's penalties more effective in stopping employers from repeatedly exposing workers to life-threatening hazards or failing to comply with certain workplace safety and health requirements.
  • January 12, 2023: The DOL issued final regulations that include the agency's 2023 annual inflation adjustments to civil money penalties assessed in its regulations, effective January 15, 2023. 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. (88 Fed. Reg. 2210 (Jan. 13, 2023); see also Legal Update, DOL and PBGC Increase Civil Money Penalties for 2023.)
  • January 9, 2023: OSHA posted an OSHA Trade Release reminding certain employers to use its Injury Tracking Application (ITA) to submit Form 300A Summary of Work-Related Injuries and Illnesses data for 2022 by March 2, 2023. OSHA maintains FAQs concerning these reporting requirements and how to use the ITA on the ITA webpage.

DOL Mine Safety and Health Administration (MSHA)

DOL Office of Workers' Compensation Programs (OWCP)

Department of Transportation (DOT)

  • May 2, 2023: The DOT published a Final Rule amending their regulated industry drug testing program to include oral fluid testing. Although the Final Rule is effective on June 1, 2023, the DOT clarifies that employers cannot implement DOT-regulated oral fluid testing until the Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory, and a second to serve as a split specimen laboratory). (88 Fed. Reg. 27596 (May 2, 2023).)

Immigration

For key US immigration developments, see 2023 US Immigration Developments Tracker.

Leave Law

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

Sixth Circuit

  • January 25, 2023: In Milman v. Fieger & Fieger, LLC, the Sixth Circuit held that an employee's initial request for leave is protected under the FMLA, even if the employee is ultimately found to be ineligible for leave ( (6th Cir. Jan. 25, 2023)).

Ninth Circuit

  • February 1, 2023: In Clarkson v. Alaska Airlines, Inc., the Ninth Circuit held that a district court erred when it disregarded factual disputes associated with the duration, purpose, and control over employment leave, three factors used to determine if military leave is comparable to other types of leave under USERRA, and when it focused on all military leave instead of the short-term military leave at issue. ( (9th Cir. Feb. 1, 2023).)

DOL

  • May 30, 2023: The DOL issued an opinion letter clarifying that if a holiday occurs during an employee's workweek, and the employee works for part of the week and uses FMLA leave for part of the week:
    • the holiday does not reduce the amount of the employee's FMLA leave entitlement unless the employee was required to report for work on the holiday; and
    • if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).
  • January 12, 2023: The DOL issued final regulations that include the agency's 2023 annual inflation adjustments to civil money penalties assessed in its regulations, effective January 15, 2023. 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. (88 Fed. Reg. 2210 (Jan. 13, 2023); see also Legal Update, DOL and PBGC Increase Civil Money Penalties for 2023.)

IRS

  • September 28, 2023: The IRS announced the issuance of new guidance on employer leave-based donation programs to aid victims of the Hawaii wildfires (IRS Notice 2023-69).

Policies & Procedures

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

Seventh Circuit

  • October 5, 2023: In Meadows v. NCR Corp., the Seventh Circuit held that the FLSA does not mandate overtime pay for the performance of incidental activities that an employer has chosen to remunerate by custom or practice if the employee failed to comply with the requirements for payment imposed by that custom or practice (here, a requirement that an employee must record those activities to be compensated) ( (7th Cir. Oct. 5, 2023)).

Department of Transportation (DOT)

  • May 2, 2023: The DOT published a Final Rule amending their regulated industry drug testing program to include oral fluid testing. Although the Final Rule is effective on June 1, 2023, the DOT clarifies that employers cannot implement DOT-regulated oral fluid testing until the Department of Health and Human Services (HHS) certifies at least two laboratories (one to serve as a primary laboratory, and a second to serve as a split specimen laboratory).

EEOC

  • September 14, 2023: The EEOC and the DOL's WHD announced that they had entered into a memorandum of understanding (MOU) to enhance and maximize the enforcement of federal laws and regulations. The MOU formalizes and increases coordination between the agencies through information sharing, joint investigations, training, and outreach.
  • September 5, 2023: The EEOC has announced that the long-delayed 2022 EEO-1 reporting period will finally open on October 31, 2023. The agency's 2022 instruction booklet is available and the deadline for filing is December 5, 2023.
  • June 30, 2023: In a surprise move, the EEOC posted an announcement to the EEO-1 landing page, stating that it was moving the tentative start date of the 2022 EEO-1 filing process to the fall of 2023 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • January 24, 2023: The EEOC announced the release of an updated resource, "Hearing Disabilities in the Workplace and the Americans with Disabilities Act," explaining how the Americans with Disabilities Act (ADA) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions.

DOL WHD

  • September 14, 2023: The EEOC and the DOL's WHD announced that they had entered into a memorandum of understanding (MOU) to enhance and maximize the enforcement of federal laws and regulations. The MOU formalizes and increases coordination between the agencies through information sharing, joint investigations, training, and outreach.
  • May 17, 2023: The DOL published Field Assistance Bulletin No. 2023-02 providing guidance to WHD field staff regarding enforcement of the pumping breast milk at work provisions of the FLSA, amended by the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act). For more guidance, see the WHD's website.

NLRB

  • August 2, 2023: In Stericycle, Inc., the NLRB adopted a new standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA (372 N.L.R.B. No. 113 (Aug. 2, 2023), overruling Boeing Co., LA Specialty Produce Co., and the subsequent work rules decisions applying the categorical classification system articulated therein (365 N.L.R.B. No. 154 (Dec. 14, 2017); 368 N.L.R.B. No. 93 (Oct. 10, 2019); for more information on the decisions applying Boeing, see The NLRB's Boeing Categories for Employment Rules Chart). Under the majority's new burden-shifting analysis, the Board will find a challenged work rule presumptively unlawful under Section 8(a)(1) if the General Counsel proves that the rule has a reasonable tendency to chill employees in the exercise of their Section 7 rights, to be assessed based on the perspective of an economically dependent, layperson employee who contemplates engaging in protected activity and regardless of whether an alternative, noncoercive interpretation of the rule also is reasonable. However, the employer may rebut this presumption by showing that the rule advances a legitimate and substantial business interest that cannot be achieved by a more narrowly tailored rule. If the employer carries this burden, the rule will be found lawful to maintain. The new standard applies retroactively. (Stericycle, Inc., 372 N.L.R.B. No. 113.) For more information, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules.

Recruitment & Hiring

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

EEOC

Department of Homeland Security (DHS)

  • July 21, 2023: The DHS announced it was modernizing Form I-9 processes for in-person document inspection by publishing on July 25, 2023:
    • a final rule providing options for employers to review documents evidencing employment eligibility and identity without physical inspection, along with a notice allowing employers enrolled in E-Verify to utilize the alternative procedures, taking effect on August 1, 2023; and
    • another notice introducing a new Form I-9. The new Form I-9 will be available for use beginning on August 1, 2023, and will be mandatory for all employers beginning on November 1, 2023.

DOL Employment & Training Administration (ETA)

  • December 14, 2023: The ETA announced that it would soon issue an NPRM intended to improve the National Apprenticeship System by updating registered apprenticeship regulations. The pre-publication copy of the NPRM, National Apprenticeship System Enhancements, is available on the ApprenticeshipUSA website. Interested parties may submit written comments concerning the proposed rule within 60 days after its publication in the Federal Register, which will occur soon. (See National Apprenticeship System Enhancements, 89 Fed. Reg. 3118 (Jan. 17, 2024).)

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 Trade Commission (FTC)

  • September 21, 2023: The FTC and the DOL announced that they had signed a memorandum of understanding that would bolster the agencies' efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair, deceptive, and other unlawful acts and practices, as well as unfair methods of competition, that harm workers. The agreement enables the agencies to collaborate by sharing information, conducting cross-training for staff, and partnering on investigative efforts.
  • March 6, 2023: The FTC extends the public comment period on its proposed rule to ban non-compete clauses until April 19, 2023.
  • February 2, 2023: The FTC announced that it will host a virtual public forum to examine the Non-Compete proposed rule on February 16, 2023 from 12:00 to 3:00 PM ET. The FTC has scheduled certain speakers and will broadcast the event on the agency's website. The FTC further states that other stakeholders "can sign up to speak through a webform and will be heard on a first-come first-serve basis during the time available."
  • January 19, 2023: The FTC Non-Compete proposed rule was published in the Federal Register (88 Fed. Reg. 3482 (Jan. 19, 2023), confirming that March 20, 2023 (extended to April 19, 2023), is the close of the comment period.
  • January 9, 2023: The FTC posted the pre-publishing copy of the NPRM in a regulations.gov portal, which states the comment period runs from that date through March 10, 2023. According to that pre-publishing copy of the NPRM posted on the FTC's website and in that portal, the comment period is to run from the date the NPRM is formally published in the Federal Register to 60 days after that publication. Under the Administrative Procedures Act, NPRMs generally must be published in the Federal Register (5 U.S.C. § 553(b)(A)). (See also Legal Updates, FTC Proposes Rule to Ban Worker Non-Competes and FTC Tackles Non-Compete Restrictions.)
  • January 5, 2023: The FTC announced that it would soon publish a notice of proposed rulemaking (NPRM) proposing to ban non-compete clauses in employment agreements. The FTC has yet to publish the formal NPRM in the Federal Register but has provided a fact sheet and a pre-publishing copy of the NPRM on its website. The proposed rule, which broadly defines what might constitute proscribed non-compete clauses, would add a new subchapter J, consisting of part 910, to chapter I in title 16 of the Code of Federal Regulations, which would be cited 16. C.F.R. Part 910. The FTC reports that it will invite public comments on the proposed rule once it is published in the Federal Register.

NLRB

  • May 30, 2023: The NLRB General Counsel issued General Counsel Memorandum 23-08 condemning most employment non-compete agreements as unlawfully interfering with employees’ exercise of rights under Section 7 of the National Labor Relations Act (NLRA). The General Counsel noted that non-compete agreements could be lawful if the provisions:
    • clearly restrict only individuals' managerial or ownership interests in a competing business or concern true independent-contractor relationships; or
    • are sufficiently narrowly tailored that any infringement on employee rights may be justified by special circumstances. The memorandum provides no examples of narrowly-tailored language or special circumstances.
    The General Counsel affirmed the NLRB's commitment to partnering with the Federal Trade Commission and the Department of Justice's Antitrust Division to share information and refer matters across agencies to address limits on worker job mobility. Employers should note that General Counsel memoranda do not have the force of binding Board precedent, but direct under which circumstances Regional Directors are to issue and prosecute ULP complaints flowing from ULP charges. Employers should also note that not all employers and workers are covered by the NLRA or therefore within the General Counsel's sphere of prosecution. (Non-Compete Agreements that Violate the National Labor Relations Act, NLRB Gen. Counsel Mem. GC 23-08 (May 30, 2023); for more information on the NLRB's jurisdiction, see NLRB Jurisdictional Limits and Standards Chart.)

Termination, Layoffs & Plant Closings

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

Second Circuit

  • May 15, 2023: In Roberts v. Genting New York LLC, the Second Circuit found that determining whether workers constitute an operating unit under the WARN Act depending on how they are organized and how they operate requires a fact-intensive analysis based on the totality of available evidence, as provided in the DOL's amicus brief ( (2d Cir. May 15, 2023)).

Fifth Circuit

  • September 27, 2023: In Fleming v. Bayou Steel BD Hldgs. II L.L.C., the Fifth Circuit held as a matter of first impression that plaintiffs were not entitled to a jury trial under the Seventh Amendment on claims alleging WARN Act violations because the issues and remedies were more equitable than legal in nature. The court also held that whether a private equity firm could be held liable under the single-employer doctrine should be determined based on the five factors identified in the DOL's regulations (20 C.F.R. § 639.3(a)(2)) and that that issue of de facto control was sufficiently important that an entity could be found to be a single-employer even if that is the only factor weighing in favor of liability. The court ultimately found issues of fact as to the private equity firm's de facto control and reversed summary judgment in its favor. ( (5th Cir. Sept. 27, 2023).)

Ninth Circuit

  • February 21, 2023: In Kappouta v. Valiant Integrated Servs., LLC, the Ninth Circuit held that plaintiff's retaliatory discharge claim under the Defense Contractor Whistleblower Protection Act (DCWPA) arising from plaintiff's report of a co-worker shoving her at a bar did not allege a sufficient nexus between the shoving incident and the DoD contract under which she was employed to warrant protection under the DCWPA ( (9th Cir. Feb. 21, 2023)).

NLRB

  • March 22, 2023: The NLRB General Counsel issued General Counsel Memorandum GC 23-05 providing guidance concerning the Board's decision in McLaren Macomb, in which the Board scrutinized non-disparagement and confidentiality provisions in a severance agreement (372 N.L.R.B. No. 58 (Feb. 21, 2023). The memorandum, among other things:
    • instructs that the NLRB Regions will closely scrutinize severance agreement's non-disparagement and confidentiality provisions, but might permit confidentiality of the financial terms in a severance agreement, without assuring that the Board would do so;
    • instructs that the NLRB Regions will apply McLaren Macomb retroactively and will allege the maintenance or enforcement of violative provisions are continuing violations where allegations of an unlawful proffer of the subject agreement would be untimely;
    • instructs that the NLRB Regions will prosecute unfair labor practice (ULP) complaints against employers for retaliating against supervisors who refuse to proffer severance agreements with provisions unlawful under McLaren Macomb;
    • instructs that the NLRB Regions generally will seek an order requiring employers to rescind only the provisions deemed unlawful under McLaren Macomb, rather than the entire agreement, assuming the remainder of the agreement is lawful and the employer did not otherwise violate the NLRA when proffering, maintaining, or attempting to enforce it;
    • encourages employers with severance agreements containing overbroad confidentiality or non-disparagement provisions to attempt to remedy those violations before any ULP proceedings arise by contacting employees subject to severance agreements with overly broad provisions and advising them that the provisions are null and void and that they will not seek to enforce the agreements or pursue any penalties for breaches of those unlawful provisions;
    • provides guidance on drafting narrow non-disparagement and confidentiality provisions, and savings clauses to clarify the scopes of ambiguous severance agreement or employee handbook provisions; and
    • instructs that the NLRB Regions will pursue ULPs concerning other types of provisions often in severance agreements, including non-compete clauses, non-solicitation clauses, no poaching clauses, broad liability releases and covenants not to sue, and cooperation agreements.
  • February 21, 2023: In McLaren Macomb, the NLRB held that a severance agreement prohibiting employees from making disparaging remarks about their employer or disclosing the terms of the agreement to others (including former co-workers), and an employer's proffer of such an agreement, violates Section 8(1)(a) of the NLRA (372 N.L.R.B. No. 58 (Feb. 21, 2023)). This decision focuses on the terms of the agreement, not the circumstances under which the employer presented it, and therefore overrules Baylor University Medical Center and IGT d/b/a International Game Technology (369 N.L.R.B. No. 43 (Mar. 16, 2020); 370 N.L.R.B. No. 50 (Nov. 24, 2020)). For more information, see 2023 Traditional Labor Law Developments Tracker: Section 8(a)(1): Employer Interference with Employees' Exercise of Section 7 Rights.

Unions

For key traditional labor law developments, see 2023 Traditional Labor Law Developments Tracker.

Wage & Hour Law

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

US Supreme Court

  • February 22, 2023: The US Supreme Court held in Helix Energy Solutions Grp., Inc. v. Hewitt that a worker paid on a daily-rate basis does not qualify for the highly compensated employee (HCE) exemption under the FLSA because the worker was not paid on a salary basis under 29 C.F.R. § 541.602(a) and did not satisfy the requirements of 29 C.F.R. § 541.604(b), and therefore is entitled to overtime pay despite earning more than $200,000 annually ( (U.S. Feb. 22, 2023)).

First Circuit

  • March 22, 2023: In Walsh v. Unitil Service Corp., the First Circuit clarified the "relational analysis test" articulated in a decision that was withdrawn after granting rehearing. Under this test, assessing the "primary duty" prong of the FLSA's administrative exemption involves evaluating whether the employee's primary duties relate to "running or servicing the business" or to the purpose of the employer's business ( (1st Cir. Mar. 22, 2023), replacing the decision at (1st Cir. Jan. 11, 2023)).

Second Circuit

  • October 16, 2023: In Herrera v. Comme des Garcons, Ltd., the Second Circuit reversed the district court's dismissal of claims for unpaid overtime under the FLSA. In addressing the FLSA's pleading specificity requirements, the court clarified the standard derived from three 2013 cases requiring that plaintiffs "sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours" but need not provide a "week-by-week recounting" of all hours worked. Applying this standard, the court held that plaintiffs' plausible allegations that their regularly scheduled workweek required that they work more than 40 hours per week were sufficient to state an FLSA claim, even if they did not list the specific workweeks in which they did so. (84 F.4th 110, 114-117 (2d Cir. 2023) (internal citations omitted).)
  • August 25, 2023: In Perry v. City of N.Y., N.Y.C. Fire Dept., the Second Circuit held that non-payment of overtime wages to employer liability is irrelevant, the key issue under the FLSA is whether the employer suffers or requires the work and the burden is then on the employer to pay for that time. The case resolves a split within the Second Circuit about whether an employer is liable for overtime if it does not know that the employee has not been paid for the time. ( (2nd Cir. Aug. 25, 2023).)

Third Circuit

  • August 16, 2023: In Tyger v. Precision Drilling Corp., the Third Circuit clarified what makes donning and doffing integral and indispensable for compensable time purposes under the FLSA. Rejecting the Second Circuit's extraordinary risk test as too narrow, the court explained that district courts should consider the location where the donning and doffing takes place, relevant DOL regulations, the type of gear involved, and the reasonable necessity of the gear for safe and effective work performance. ( (Aug. 16, 2023).)
  • March 15, 2023: In Higgins v. Bayada Home Health Care Inc., as a matter of first impression, the Third Circuit held that paid time off (PTO) is not a component of an employee's salary under the FLSA and its related salary basis regulations. The court affirmed the district court's decision on summary judgment that the employer did not make actual and improper deductions from the plaintiff's salary in violation of the FLSA. Deductions from the plaintiff's PTO bank in weeks which the plaintiff failed to meet weekly productivity minimums were reductions in fringe benefits, not deductions from the plaintiff's base pay, the predetermined amount that a salaried employee receives at the end of a pay period. ( (3d Cir. Mar. 15, 2023).)

Fourth Circuit

  • July 27, 2023: In Carrera v. E.M.D. Sales Inc., the Fourth Circuit upheld its burden of proof standard in FLSA exemption cases. The court found that the Supreme Court decision Encino Motorcars (138 S. Ct. 1134 (2018)), which held in part that FLSA exemptions should not be narrowly construed, did not overrule the Fourth Circuit burden of proof standard requiring employers to show that the employee qualifies for the exemption by clear and convincing evidence. The court found that it can require employers to meet the higher burden of proof while still construing the exemption broadly. ( (4th Cir. July 27, 2023).)

Fifth Circuit

  • August 16, 2023: In Klick v. Cenikor Foundation, the Fifth Circuit concluded that the district court properly relied on Alamo to make a threshold determination that rehabilitation patients who were required to work for third parties during their treatment were employees for purposes of certifying a collective action under the FLSA. Because the merits question could be answered collectively, the rehabilitation patients were similarly situated and certification was proper. ( (Aug. 16, 2023) (citing Tony & Susan Alamo Found. v. Sec'y of Lab., 471 U.S. 290 (1985)).)
  • April 28, 2023: In Rest. Law Ctr. v. United States Dep't of Lab., the Fifth Circuit held that the DOL's amended Dual Jobs regulation for tipped employees caused irreparable harm to employers due to the costs of complying with the regulation, and remanded the case for the district court to analyze whether a preliminary injunction should be issued ( (5th Cir. Apr. 28, 2023)).

Sixth Circuit

  • May 19, 2023: In Clark v. A&L Homecare & Training Ctr., LLC, the Sixth Circuit held that for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a "strong likelihood" that those employees are similarly situated to the plaintiffs themselves (that is, a showing greater than the one necessary to create a genuine issue of fact but less than the one necessary to show a preponderance of the evidence) ( (6th Cir. May 19, 2023)).

Seventh Circuit

  • October 5, 2023: In Meadows v. NCR Corp., the Seventh Circuit held that the FLSA does not mandate overtime pay for the performance of incidental activities that an employer has chosen to remunerate by custom or practice if the employee failed to comply with the requirements for payment imposed by that custom or practice (here, a requirement that an employee must record those activities to be compensated) ( (7th Cir. Oct. 5, 2023)).

Ninth Circuit

  • March 17, 2023: In Olson v. California, the Ninth Circuit held that plaintiffs, Postmates, Uber, and food delivery drivers who used those platforms, plausibly alleged that California Assembly Bill 5 (A.B. 5), as amended, violates the Equal Protection Clause. The plaintiffs plausibly alleged, among other things, that A.B. 5, was enacted with animus towards those engaged in app-based ride-hailing and delivery services and was amended to single out those service providers and their workers by deeming those workers employees rather than independent contractors while excluding thousands of workers through A.B. 5's wide-ranging exemptions. The Ninth Circuit reversed the district court's dismissal of the plaintiffs' equal protection claims and affirmed its dismissal of the plaintiffs' due process, contract clause, and bill of attainders claims. The Ninth Circuit also reversed the district court's order denying the plaintiffs' motion for a preliminary injunction and remanded the case to the district court for reconsideration consistent with its opinion. ( (9th Cir. Mar. 17, 2023).)
  • UPDATE: On December 18, 2023, the Ninth Circuit ordered that this case be reheard en banc and that the March 17, 2023 opinion be vacated (Olson v. California, (9th Cir. Dec. 18, 2023).) For more information on this litigation, see Practice Note, Legal Tests for Independent Contractor Classification Under California Law: Gig Economy Challenge to A.B. 5 in Federal Court.
  • February 14, 2023: The Ninth Circuit issued an amended opinion in Bowerman v. Field Asset Servs., Inc., holding that the district court improperly granted class certification on independent contractors' overtime and expense reimbursement claims under California law, reversing final judgment for individual plaintiff claims and the resulting interim fee award, and denying the plaintiffs' petition for rehearing and rehearing en banc rehearing ( (9th Cir. Feb. 14, 2023), amending and superseding 39 F.4th 652 (9th Cir. July 5, 2022)).

Eleventh Circuit

  • September 11, 2023: In Wilson v. Schlumberger Technology Corp., the Eleventh Circuit addressed the FLSA exempt status of an oilfield services employee who received a fixed base salary above the salary threshold for exemption plus a significantly larger amount paid on an hourly basis. The court concluded that 29 C.F.R. § 541.604(a) applies to employees who receive a fixed base salary above the salary threshold plus additional compensation paid on any basis, including time. Subsection (b), with its "reasonable relationship" test, applies only when an employee's base compensation is determined on an hourly, daily, or shift basis. ( (Sept. 11, 2023).)

DOL, Office of the Secretary of Labor

  • September 21, 2023: The FTC and the DOL announced that they had signed a memorandum of understanding that would bolster the agencies' efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair, deceptive, and other unlawful acts and practices, as well as unfair methods of competition, that harm workers. The agreement enables the agencies to collaborate by sharing information, conducting cross-training for staff, and partnering on investigative efforts.
  • August 8, 2023: The DOL announced a final rule updating the Davis-Bacon Act (DBA) and Related Acts (DBRA) Regulations regarding prevailing wages for construction workers on federal contracts. Among other things, the new regulations revise the definition of "prevailing wage," modify the procedures for wage determinations, and add anti-retaliation protections. For more on the DBA and DBRA generally, see Practice Note, Davis-Bacon Act: Overview.
  • February 27, 2023: The DOL and Department of Health and Human Services (HHS) announced new efforts to combat child labor law violations, including the creation of a new interagency task force.
  • February 22, 2023: The Office of the Secretary of Labor published its semiannual regulatory agenda in the Federal Register (88 Fed. Reg. 11252 (Feb. 22, 2023)).

DOL WHD

  • December 14, 2023: The WHD published a final rule finalizing regulations to implement Executive Order 14055, Nondisplacement of Qualified Workers Under Service Contracts. EO 14055 established 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. This final rule is effective February 12, 2024, and applies to solicitations on or after that date. (Nondisplacement of Qualified Workers Under Service Contracts, 88 Fed. Reg. 86736 (Dec. 14, 2023).)
  • October 25, 2023, the Senate confirmed Jessica Looman's nomination as the DOL's Wage and Hour Division Administrator.
  • September 28, 2023: The DOL published in the Federal Register notices of minimum wage rate changes, effective January 1, 2024, for federal contractors covered by:
  • August 31, 2023: The DOL's WHD published Field Assistance Bulletin (FAB) No. 2023-03 (Aug. 31, 2023), providing enforcement guidance to field personnel regarding the FLSA's prohibition against the shipment of goods produced using oppressive child labor, often referred to as "hot goods." FAB No. 2023-03 clarifies the requirements of a purchaser's good faith defense and suggests that work violating the FLSA's child labor restrictions occurring "in or about" the establishment producing goods for interstate commerce, such as a minor employee of a landscaping company hired by the manufacturer, could violate the hot goods prohibition.
  • August 30, 2023: The DOL's WHD announced an NPRM that would:
    • increase the minimum salary threshold (the "standard salary level") for the executive, administrative, and professional (EAP) exemptions under the FLSA from $684 to $1,059 a week;
    • increase the total annual compensation requirement for the highly compensated employee (HCE) exemption under the FLSA from $107,432 to $143,988;
    • increase the minimum salary threshold for EAP exemptions in American Samoa from $380 to $890 per week;
    • eliminate the special minimum salary threshold for EAP exemptions in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands;
    • increase the base rate for EAP exempt employees in the motion picture producing industry from $1,043 to $1,617 a week; and
    • automatically update earnings thresholds every three years.
    The agency provides additional information on its webpage, Proposal: Restoring and Extending Overtime Protections, including FAQs about the proposed rule. The NPRM was published in the Federal Register on September 8, 2023, and the 60-day public comment period is open until November 7, 2023 (88 Fed. Reg. 62152).
  • March 24, 2023: The DOL's WHD and the Health and Human Services Department's Administration for Children and Families signed a Memorandum of Agreement (MOA) to formalize a partnership between the agencies and outline procedures to work together in address child labor exploitation. The MOA will:
    • help identify geographies and employers where children are likely being exploited;
    • aid investigators by providing information to help identify circumstances where children are unlawfully employed;
    • facilitate coordination to ensure that victims or potential victims of child labor trafficking have access to critical services; and
    • support the efforts of an interagency child labor task force announced in February 2023.
    For more information about child labor law under the FLSA, see Practice Note, Child Labor Law and Child Labor Law Under the FLSA Checklist.
  • May 17, 2023: The DOL published Field Assistance Bulletin No. 2023-02 providing guidance to WHD field staff regarding enforcement of the pumping breast milk at work provisions of the FLSA, amended by the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act). For more guidance, see the WHD's website.
  • March 2, 2023: The DOL's WHD issued two revised fact sheets, Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA) and Fact Sheet #15A: Tipped Employees under the Fair Labor Standards Act (FLSA) and Dual Jobs, providing guidance on paying tipped employees under the FLSA, and updates to Chapter 30d: Tips, Tip Credit, and Tipped Employees of the agency's Field Operations Handbook (FOH), providing guidance on FLSA tip regulations issued in 2021.
  • February 9, 2023: The DOL, Wage and Hour Division issued Field Assistance Bulletin (FAB) No. 2023-1, providing guidance to ensure workers who telework are paid properly under the Fair Labor Standards Act (FLSA), how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking from their home or another location, and how to apply eligibility rules under the Family and Medical Leave Act when employees telework or work away from an employer's facility.
  • January 12, 2023: The DOL issued final regulations that include the agency's 2023 annual inflation adjustments to civil money penalties assessed in its regulations, effective January 15, 2023. 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. (88 Fed. Reg. 2210 (Jan. 13, 2023); see also Legal Update, DOL and PBGC Increase Civil Money Penalties for 2023.)

Federal Public Sector

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

US Supreme Court

  • May 18, 2023: In Ohio Adjutant Gen.'s Dep't v. Fed. Lab. Rels. Auth., the US Supreme Court held that the Federal Labor Relations Authority (FLRA) properly exercised jurisdiction over an unfair labor practices dispute because the State National Guard acted as a federal agency when hiring and supervising dual-status technicians serving in their civilian role ( (U.S. May 18, 2023)).

D.C. Circuit

  • February 17, 2023: In Orozco v. Garland, the D.C. Circuit held that Section 794d of the Rehab Act, which generally requires federal agencies to use technology that is accessible to employees with disabilities, extends a private right of action to persons with disabilities who file administrative complaints requesting accessible technology and who seek only injunctive and declaratory relief ( (D.C. Cir. Feb. 17, 2023)).

Federal Circuit

Office of Personnel Management

  • November 15, 2023: The Office of Personnel Management (OPM) is issuing a proposed rule to expand the authority to approve waivers of the normal payment limitations on recruitment and relocation incentives. An expansion of the waiver approval authority would provide agencies with access to higher payment limitations for these flexibilities without requesting approval from OPM, see Federal Register 2023-25199.
  • September 1, 2023: The Office of Personnel Management (OPM) is issuing final regulations governing when, during the hiring process, a hiring agency can request information typically collected during a background investigation from an applicant for federal employment and is issuing new regulations establishing the requirement for the timing of collection of criminal history information and for governing complaint procedures under which an applicant for a position in the civil service may submit a complaint. This rule implements the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act), see Federal Register 2023-18242.

Office of the President

EEOC

Miscellaneous

  • August 28, 2023: The DOL announced that it joined with the Mexican Embassy and other diplomatic missions to open Labor Rights Week. The agency also announced a new site, migrantworker.gov (and trabajadormigrante.gov), to provide migrant workers with information about their rights and access to resources.

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.

Arizona

  • July 17, 2023: The Arizona Division of Occupational Safety and Health (ADOSH) unveiled a new comprehensive state emphasis program (SEP) aimed at mitigating heat-related illnesses and injuries at indoor and outdoor workplaces. For more information, see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
  • February 14, 2023: OSHA announced that it will withdraw its proposal to reconsider and revoke final approval of Arizona's State Plan for occupational safety and health, leaving the state's plan in place.

Arkansas

  • April 10, 2023: Arkansas enacted a CROWN Act. Effective August 1, 2023, the Arkansas Civil Rights Act (ACRA) defines race and national origin to include natural, protective, and cultural hairstyles, including afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance (Ark. Code Ann. § 16-123-102).

California

  • December 14, 2023: The California Occupational Safety and Health Standards Board adopted an emergency temporary standard (ETS) addressing occupational silicosis among the engineered stone fabricating industry employees. The ETS amends California Code of Regulations Title 8, section 5204 and becomes effective for one year starting December 29, 2023. The California Division of Occupational Safety and Health is expected to address the ETS and potentially made the amendment permanent through rulemaking. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • December 14, 2023: The California Labor Commissioner published an updated Wage Theft Prevention template to include an Emergency or Disaster Disclosure section required as of January 1, 2024 under the recently enacted AB 636 and updates to the Paid Sick Leave section to be consistent with the recently enacted SB 616, which goes into effect January 1, 2024. (See by Davis Wright Tremaine LLP.)
  • December 12, 2023: The California Labor Commissioner published updated California Paid Sick Leave: Frequently Asked Questions on its website addressing changes to paid sick leave law requirements becoming effective January 1, 2024 under SB 616. The Labor Commissioner's website also contains the updated paid sick leave poster and 2801.5 employee notice, both of which were updated in November (see Cal. Lab. Code § 2810.5).
  • November 9, 2023: The California Occupational Safety and Health Standards Board (OSHSB) published proposed modifications to the draft indoor heat illness standard, which were based on suggestions the Standards Board received during the August 2023, 15-day comment period. Some of the proposed modifications include:
    • adding an exception for compliance with the standard for certain circumstances when an employee is only exposed to indoor "incidental heat exposure…above 82 degrees Fahrenheit for less than 15 minutes in any 60-minute period…."
    • deleting a previously proposed exception that would have made certain indoor spaces subject to the outdoor heat illness standard;
    • deleting a previously proposed provision that would have permitted employers with employees that go back and forth between working outdoors and indoors to have to comply with only the indoor standard; and
    • altering the definition of "high radiant heat area" and "high radiant heat source." (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • November 8, 2023: California Governor Gavin Newsom signed into law AB 636, which amends Cal. Lab. Code § 2810.5 to require employers to include emergency or disaster declarations in the county where the employee works in the required notice of pay and sick leave information to new non-exempt employees. Effective March 15, 2024, employers of federal H-2A agricultural visa employees must provide an additional written notice in Spanish describing the employee's rights and protections under California law. The law is effective January 1, 2024, but the Labor Commissioner is not required to post a sample notice complying with the new notice requirements until March 1, 2024.
  • October 23, 2023: A Law Firm Publication describes the October 1, 2023 California Department of Industrial Relations (DIR) announcement of the 2024 adjusted minimum thresholds for computer software employees who are considered exempt from the state's overtime requirements. The changes are effective January 1, 2024. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • October 13, 2023: California Governor Gavin Newsom signed into law SB 525, which amends the California Labor Code to set healthcare industry minimum wage requirements for nearly all healthcare workers, whether they hourly or salaried employees, or independent contractors. The law also provides these workers with an independent private right of action to enforce these minimum wage requirements. The minimum wage schedules vary based on the type of employer healthcare facility. (See by Fisher Phillips.)
  • October 13, 2023: California Governor Gavin Newsom signed into law AB 1076, which both amends Section 16600 of the California Business and Professions Code to codify legal precedent banning certain non-compete and non-solicitation agreements and requires employers to notify current and former employees in writing by February 14, 2024, that any prior non-compete agreements contravening the law are void (see by Fisher Phillips).
  • October 10, 2023: California Governor Gavin Newsom signed into law SB 365, which amends Section 1294 of the California Code of Civil Procedure to provide that trial court proceedings are not automatically stayed during an appeal of an order dismissing or denying a petition to compel arbitration. Instead, trial courts may exercise discretion when deciding whether a case can proceed while an appeal is heard. The law is effective January 1, 2024. (See by Fisher Phillips.)
  • October 10, 2023: California Governor Gavin Newsom signed into law AB 933, which extends the California Civil Code's definition of a privileged communication in defamation actions to include communications concerning an individual's experience of sexual assault, sexual harassment, workplace harassment or discrimination, and cyber sexual bullying. The law also permits prevailing defendants in that kind of defamation action to recover attorneys' fees and costs, treble the damages they incur by being a defendant, and punitive damages. The law is effective January 1, 2024, and will be codified as California Civil Code Section 47.1. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • October 10, 2023: California Governor Gavin Newsom signed into law SB 848, which makes it an unlawful employment practice under the California Fair Employment and Housing Act (FEHA) for an employer to refuse to grant a request by an eligible employee to take up to five days of reproductive loss leave off following a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. The five days of leave need not be taken consecutively. However, the leave must be completed within three months of the reproductive loss event. If the eligible employee suffers more than one reproductive loss event within 12 months, the employer is only required to provide up to 20 days of leave. The law is effective January 1, 2024, and will be codified as California Government Code Section 12945.6. (See by Fisher Phillips.)
  • October 8, 2023: California Governor Gavin Newsom signed into law SB 476, which requires employers to pay food handler employees for the costs associated with obtaining a food handler card required by the California Health and Safety Code. The new law also makes employers responsible for the time required for the employee to complete the training, the cost of testing, and any element required for the completion of the certification program. More specifically, employers must also relieve employees from other work duties and compensate them for time spent completing the training and testing. The law is effective January 1, 2024. For more information, see California Health & Safety Code Section 113948 and by Fisher Phillips.
  • October 8, 2023: California Governor Gavin Newsom signed into law SB 497, which amends California Labor Code Sections 98.6, 1102.5, and 1197.5 to create a rebuttable presumption of retaliation if an employee is disciplined or discharged within 90 days of certain protected activity (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • October 8, 2023: California Governor Newsom signed AB 947, which revises the California Consumer Privacy Act (CCPA) definition of "sensitive personal information" to include personal information that reveals a consumer's citizenship or immigration status, effective January 1, 2024 (see by Jackson Lewis P.C.).
  • October 7, 2023: California Governor Gavin Newsom signed SB 700 into law, expanding California's Fair Employment and Housing Act to protect applicants from discrimination based on prior cannabis use, with certain exceptions (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • October 4, 2023: California Governor Newsom signed into law SB 616, which expands California's existing paid sick leave law (the Healthy Workplaces, Healthy Families Act of 2014) in multiple ways, including by increasing employees' entitlement to annual paid sick leave (see by Fisher Phillips).
  • September 30, 2023: California Governor Newsom signed SB 553, a new workplace violence prevention law. The law requires virtually all California employers to:
    • create and implement a workplace violence prevention plan that meets the law's specific requirements;
    • record violent workplace incidents or threats in a violent incident log;
    • provide effective training to all employees; and
    • maintain records regarding the workplace violence prevention plan.
    The law adds a new Cal. Lab. Code § 6401.9 and becomes effective on July 1, 2024. (See by Fisher Phillips.)
  • September 30, 2023: Governor Newsom signed SB 428 which expands California’s workplace violence restraining order law. In addition to allowing employers to seek restraining orders against individuals who have engaged in or threatened physical violence, the new law allows employers to seek protection against harassment or threatened harassment in the workplace. SB 428 takes effect on January 1, 2025. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • September 28, 2023: California Governor Newsom signed AB 1228, regarding fast food restaurant workers. The law, among other things, raises the minimum wage for restaurant workers at national fast food chains (as defined) to $20 per hour and requires the creation of a Fast Food Council (effective April 1, 2024). The law also repeals AB 257, the Fast Food Accountability and Standards Recovery Act (FAST Recovery Act), and the referendum challenging its implementation will be withdrawn.
  • September 22, 2023: In Hartstein v. Hyatt Corp., the Ninth Circuit held that where an employer conducts a temporary layoff with no specific return date in the normal pay period, the temporary layoff is a "discharge" under the prompt payment provisions of the California Labor Code, requiring the employer to pay all earned and unpaid wages ( (9th Cir. Sept. 22, 2023)).
  • September 1, 2023: Governor Newsom signed Senate Bill (SB) 699, which adds enforcement provisions to create a private right of action by employees, former employees, and prospective employees against any employer that enters into or tries to enforce a restrictive covenant void under California law, regardless of where the covenant was entered into or where the employee worked (Cal. Bus. & Prof. Code § 16600.5, added by S.B. 699). The new law is effective January 1, 2024. (See Law Firm Publication by Jackson Lewis P.C.)
  • August 21, 2023: In Raines v. U.S. Healthworks Med. Grp., the California Supreme Court, on a certified question from the Ninth Circuit, held that business entities acting as agents of an employer can, under certain circumstances, be held directly liable under the California Fair Employment and Housing Act's (FEHA) definition of "employer," which extends to "any person acting as an agent of an employer," if the business entity has at least five employees and performs FEHA-regulated activities on behalf of an employer ( (Cal. Aug. 21, 2023)).
  • August 4, 2023: The California Occupational Safety and Health Standards Board (OSHSB) issued its notice to amend Title 8 of the California Code of Regulations to add Section 3396, Heat Illness Prevention in Indoor Places of Employment. The OSHSB, following receipt of public comments about the proposed regulation on May 19, 2023, also opened the 15-day notice comment period, which ends on August 22, 2023. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • July 24, 2023: The California Office of Administrative Law approved the California Civil Rights Council's draft revisions, with some modifications, to the Fair Employment and Housing Acts regulations governing inquiries into and consideration of a job applicant's criminal history in making hiring decisions. The regulatory changes take effect on October 1, 2023. For more information, see the Fair Employment and Housing Council's Modifications to Employment Regulations Regarding Criminal History section on the Civil Rights Council's website. (See 2 CCR § 11017.1.)
  • July 17, 2023: The California Supreme Court held that an employee who has filed a Private Attorneys General Act (PAGA) action with individual and non-individual claims does not lose standing to litigate their non-individual claims in court simply because their individual claims have been ordered to arbitration (Adolph v. Uber Techs., Inc., (Cal. July 17, 2023); see by Fisher Phillips).
  • July 14, 2023: California Attorney General Rob Bonta announced a new enforcement sweep aimed at ensuring that companies comply with the California Consumer Privacy Act of 2018 (CCPA) concerning the personal information of employees and job applicants. (See by Fisher Phillips.)
  • July 11, 2023: A California Court of Appeal held that whether an employer must reimburse expenses incurred by an employee working from home turns on whether the expenses were a direct consequence of the discharge of the employee’s job duties, not on whether the expenses were directly caused by the employer (Thai v. Int'l Bus. Machines Corp., (Cal. Ct. App. July 11, 2023); see Law Firm Publication by Sheppard Mullin).
  • July 10, 2023: California Governor Newsom revitalized the Industrial Welfare Commission (IWC) as part of A.B. 102, by allocating it $3,000,000 to the state's 2023 budget bill. Previously, the IWC had not been operational since July 1, 2004, when the California Legislature defunded the IWC, but the California IWC Wage Orders remain in effect. Under A.B. 102, the IWC must convene by January 1, 2024, and provide any final recommendations for wages, hours, and working conditions by adopting new or amended wage orders by October 31, 2024, provided that any of those orders shall not include any standards that are less protective than existing state law. The commission shall prioritize for consideration industries in which more than 10 percent of workers are at or below the federal poverty level. AB 102 took effect immediately. For more information, see by Jackson Lewis P.C.
  • June 30, 2023: The Superior Court of California for the County of Sacramento issued an order staying enforcement of the amended California Consumer Privacy Act (CCPA) regulations, adopted on March 29, 2023, until March 29, 2024. This order does not impact the enforcement of the California Privacy Rights Act’s (CPRA) amendments to the CCPA, including the expiration of the exceptions for workforce and employment related personal information. (See Legal Update, California Superior Court Delays CPRA Regulations Enforcement and by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • May 22, 2023: The California Supreme Court held that an employee's disclosure about suspected law violations to their employer or a government agency is protected whistleblowing activity under California’s Labor Code, even when the disclosure concerns information already known by the employer or a government agency (People ex rel. Garcia-Brower v. Kolla's, Inc., (Cal. May 22, 2023); for more information see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • May 21, 2023: Additional requirements in Irvine, California's Hotel Work Protection Ordinance take effect for hotel employers, including workload limitations for room attendants (see by Fisher Phillips).
  • April 24, 2023: The Los Angeles City Council approved Ordinance No. 187782 (Council File 21-0107), the Freelance Workers Protection Ordinance. The law was made part of the L.A. Code and takes effect July 1, 2023. For covered workers and hiring parties, the new ordinance requires a basic written contract, timely payment, and that both parties retain records of their agreement.
  • March 13, 2023: A California Court of Appeal concluded that:
    • sections 7465(c)(3) and (4) of Proposition 22 are facially invalid on separation of powers grounds because they intrude on the judiciary's authority to determine what constitutes an amendment to Proposition 22; and
    • section 7465(c)(4) fails for the additional reason that it intrudes on the California legislature's authority by artificially expanding Proposition 22's article II, section 10(c) shadow.
    The court severed the unconstitutional provisions from the rest of the initiative and affirmed the trial court's judgment declaring those provisions invalid and allowing the rest of Proposition 22 to remain in effect. (See Castellanos v. State, (Cal. Ct. App. Mar. 13, 2023), review granted 530 P.3d 1129 (Cal. 2023).)
  • March 7, 2023: A Law Firm Publication by Ogletree Deakins provides clarification on a provision in the Los Angeles Fair Work Week Ordinance, which takes effect on April 1, 2023, requiring retail employers to pay workers a premium for working a second shift within ten hours of the first shift. According to call with a representative of the Los Angeles Office of Wage Standards, the agency will interpret the ordinance to mean that covered employers "must provide premium pay for the second shift that is not separated by at least ten hours" (rather than for both shifts). (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • February 15, 2023: The Ninth Circuit held in Chamber of Commerce of the US v. Bonta, that the Federal Arbitration Act (FAA) preempts California's Assembly Bill 51 (A.B. 51) and enjoined enforcement of the statute. A.B. 51 made it a criminal offense for an employer to require a current employee or an applicant to enter into an arbitration agreement as a condition of employment, but did not invalidate agreements entered into in violation of the law. ( (9th Cir. Feb. 15, 2023) (decided after panel granted sua sponte rehearing, withdrew previous decision, and resubmitted the case on Aug. 22, 2022).)
  • February 6, 2023: California's Occupational Safety and Health Appeals Board (OSHAB) held that employers must provide their outdoor workers with drinking water at a location "as close as practicable," effectively creating a new precedent for interpreting the state's requirements related to the proximity of drinking water (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • January 20, 2023: San Francisco passed a city ordinance requiring private employers with 100 or more employees to provide differential paid leave for military reservists called to active duty. The ordinance is effective February 19, 2023 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • January 19, 2023: The California Civil Rights Department (CRD) released new FAQs providing guidance to covered employers on pay data reports due May 10, 2023, including four main pay data reporting changes (see by Fisher Phillips).

Colorado

  • November 9, 2023: The Colorado Department of Labor Employment (CDLE) adopted its final Equal Pay Transparency (EPT) Rules and the Statement of Basis, Purpose, Specific Statutory Authority, and Findings to clarify the Colorado Ensure Equal Pay for Equal Work Act, as amended. The rules become effective on January 1, 2024. (See by Jackson Lewis.
  • November 2, 2023: The Boulder County, CO Board of Commissioners adopted a minimum wage ordinance, effective January 1, 2024 (Ordinance No. 2023-4).
  • June 7, 2023: Colorado Governor Polis signed the Protecting Opportunities and Workers' Rights Act (POWR Act), effective August 7, 2023, which expands the definition of harassment to include any "unwelcome" conduct and rejects the judicially created "severe or pervasive" standard of proof, limits employers' affirmative defenses, adds marital status to the classes protected from discrimination, limits non-disclosure and confidentiality provisions in employment agreements, adds a penalty for violating the restrictions on confidentiality, non-disparagement, and non-disclosure clauses, and adds certain employment-related record-keeping obligations (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • June 5, 2023: Colorado Governor Polis signed Senate Bill (SB) 23-105, effective January 1, 2024, which expands notification requirements in Colorado's Equal Pay for Equal Work Act beyond "promotional opportunities" to "job opportunities," eliminating any arguments that a posting is not required because an opportunity is not promotional (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • June 2, 2023: Colorado enacted the Job Application Fairness Act (JAFA), effective July 1, 2024, which prohibits employers from requesting or requiring that job applicants provide information related to “age, date of birth, or dates of attendance at or graduation from an educational institution” on initial employment applications (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • June 2, 2023: Colorado Governor Jared Polis signed into law Senate Bill (SB) 23-017, which expands the qualifying reasons an employee may take leave under the Colorado Healthy Families and Workplaces Act (HFWA) to include bereavement leave and inclement weather (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • March 13, 2023: Denver adopted City and County of Denver Wage Theft Rules implementing its new civil wage theft ordinance. The rules are effective March 13, 2023 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • January 10, 2023: Denver passed an ordinance providing new avenues for workers in the City and County of Denver to pursue claims for wage theft (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Connecticut

  • September 18, 2023: Connecticut Governor Lamont announced the minimum wage will increase to $15.69 on January 1, 2024 under its first-time economic indicator adjustment and will adjust annually.
  • June 29, 2023: Connecticut Governor Lamont signed Public Act No. 23-97, amending Connecticut’s non-compete law for physicians and implementing restrictions on non-compete agreements entered into with physician assistants and advanced practice registered nurses. The act has an effective date of July 1, 2023, but most of the material changes do not become effective until October 1, 2023 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • June 26, 2023: Connecticut enacted Senate Bill No. 2 as Public Act (PA) No. 23-101, which, among other things, amends Conn. Gen. Stat. Ann. § 31-57 to expand the circumstances in which service workers in Connecticut may use state-mandated paid sick leave. The new law goes into effect October 1, 2023. (See by Jackson Lewis P.C.)
  • June 12, 2023: Connecticut Governor Lamont signed Public Act 23-204, the state's budget bill that, among other changes, amends Connecticut General Statute 19a-490l, the section covering mandatory overtime for registered nurses (RNs). The revisions expand the definition of overtime to include anytime a nurse works more than 12 hours in a 24-hour period or more than 48 hours in any hospital-defined work week. It also sets new thresholds for when hospitals can require RN overtime. The changes take effect October 1, 2023.
  • June 5, 2023: Connecticut enacted Substitute Bill No. 913 as Public Act (PA) No. 23-35, "An Act Expanding Workers' Compensation Coverage for Post-Traumatic Stress Injuries for All Employees," which expands the definition of employee to allow nearly all workers (not just first responders) who suffer certain tragic qualifying events to claim workers' compensation benefits, effective January 1, 2024 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • January 30, 2023: The Connecticut Appellate Court held in Schimenti Construction Company, LLC v. Schimenti that continued at-will employment can be sufficient consideration for an employee’s restrictive covenant agreement (No. AC44274 (Jan. 17, 2023) (see by Jackson Lewis P.C.).
  • January 1, 2023: The "Clean Slate" law, Public Act No. 21-32 became effective nearly one and one-half years after it was signed into law. Primarily concerned with rules and protocols for parole, sentencing, and the erasing of criminal records, the law also expands Connecticut's ban-the-box law to prohibit employers from:
    • requiring a job applicant with erased criminal records to disclose those records,
    • denying employment based on an applicant's erased criminal history record; or
    • inquiring about an applicant's criminal history on a job application unless the application conspicuously informs the applicant of what constitutes erased criminal records, as newly defined, and that they need not disclose erased and certain other criminal records, as specified.
    Employers and their agents also may not discharge, cause to be discharged, or otherwise discriminate against employees based on their erased criminal history record. The law authorizes applicants and employees to file a discrimination complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) or file a lawsuit for legal and equitable remedies. (Conn. Gen. Stat. Ann. § 31-51i (West); see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)

Delaware

District of Columbia

  • July 7, 2023: The District of Columbia's Cannabis Employment Protections Amendment Act of 2022 will go into effect on July 13, 2023. The law prohibits employers from taking personnel actions against an employee for off-premises cannabis or marijuana use during non-work hours, with some exceptions. (See by Jackson Lewis P.C.)
  • January 30, 2023: 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 by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • January 25, 2023: The District of Columbia Council postponed the first effective date of the Tip Credit Elimination Act from January 1, 2023, to May 1, 2023. Under the new schedule, the current maximum tip credit of $10.75 per hour will be reduced to $10.10 per hour on May 1, with the tip credit scheduled to be eliminated altogether by 2027 (see by Jackson Lewis P.C.). For more on the Tip Credit Elimination Act passage, see 2022 Labor & Employment Law Developments Tracker: District of Columbia).

Florida

  • June 29, 2023: Florida Governor DeSantis signed SB 170, requiring local governments to suspend enforcement of local ordinances if subject to a legal challenge and to prepare business impact statements before adopting proposed local ordinances. The law takes effect October 1, 2023.
  • May 10, 2023: Florida Governor Ron DeSantis signed SB 1718 into law, which will require many Florida employers to use the E-Verify system to verify the employment eligibility of new employees starting July 1, 2023. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)

Georgia

  • September 6, 2023: In Motorsports of Conyers, LLC v. Burbach, the Georgia Supreme Court addressed application of the state's public policy exception to choice of law provisions and reaffirmed existing precedent that Georgia courts asked to apply foreign law to determine whether to enforce a restrictive covenant must first determine if the restrictive covenant complies with Georgia law ( (Ga. Sept. 6, 2023)).
  • June 13, 2023: In North American Senior Benefits v. Wimmer, the Georgia Court of Appeals held that an employee non-solicitation provision must have a territorial limitation to pass muster under Georgia’s 2011 Restrictive Covenants Act (RCA). (See by Fisher Phillips LLP.)

Hawaii

  • December 27, 2023: The Hawaii State Department of Labor and Industrial Relations (DLIR) announced that the minimum wage will rise to $14 per hour beginning on January 1, 2024. The minimum wage will thereafter increase incrementally to $16 per hour on January 1, 2026, and to $18 per hour on January 1, 2028.
  • September 28, 2023: The IRS announced the issuance of new guidance on employer leave-based donation programs to aid victims of the Hawaii wildfires (IRS Notice 2023-69).
  • July 3, 2023: Hawaii enacted SB 1057, effective January 1, 2024:
    • requiring most employers with 50 or more employees to disclose a position's hourly rate or salary range in certain job postings; and
    • amending existing equal pay requirements by prohibiting an employer from paying employees in any protected category of the state's employment discrimination statute less than it pays other employees for "substantially similar work," instead of "equal work."

Illinois

  • December 14, 2023: The Cook County Board of Commissioners passed the Cook County Paid Leave Ordinance, converting the Cook County Earned Sick Leave Ordinance into an ordinance requiring general paid leave. Previously, under the Earned Sick Leave Ordinance, employers were required to provide 40 hours of earned sick leave per year to all employees in Cook County. Effective January 1, 2024, the new Paid Leave Ordinance requires employers to provide 40 hours of paid leave to be used for any reason. A link to the full text of the Paid Leave Ordinance is available on the Board of Commissioners website. The Cook County Commission on Human Rights notes that the enforcement date for the ordinance in February 1, 2024; however, employers should monitor the Commission on Human Right's website for any notices or guidance in preparation for the ordinance's January 1, 2024 effective date.
  • December 13, 2023: The Chicago City Council enacted a substitute ordinance delaying implementation of a new paid leave ordinance requiring, among other things, that all Chicago employers to provide employees with 10 paid leave days. The ordinance, which was to take effect December 31, 2023, will now take effect on July 1, 2024. (See by Fisher & Phillips LLP.)
  • November 9, 2023: The Chicago City Council passed a new paid leave ordinance requiring all Chicago employers to provide employees with 10 paid leave days. The new law alters the existing city sick leave requirement creating two separate categories for required paid time off (five general paid leave days and five paid sick leave days). Adding complications for employers, the varying types of leave will have different rules for initial eligibility, minimum usage, rollover, and payout upon termination. (See by Quarles & Brady, LLP.)
  • October 18, 2023: The Illinois Department of Labor (IDOL) published updated FAQs on the Illinois Paid Leave for All Workers Act (IPLAWA).
  • October 6, 2023: The Chicago City Council approved an ordinance amending Section 6-105-030 of the Chicago Municipal Code to eliminate in phases the subminimum wage for tipped employees working in Chicago by July 1, 2028. (See by Jackson Lewis P.C.)
  • October 4, 2023: Illinois Governor J.B. Pritzker signed HB 3516, which amends the state blood donation law to require employers with 51 or more employees to allow employees to use up to ten days of paid leave in a 12-month period for organ donation. The amendments take effect on January 1, 2024.
  • August 11, 2023: Illinois Governor J.B. Pritzker signed HB 3129, which amends the Equal Pay Act by requiring employers with at least 15 employees to include the pay scale and benefits in any job posting. The amendments take effect on January 1, 2025.
  • August 7, 2023: The Illinois DOL filed emergency and proposed permanent rules to implement HB 2862, which amended the Day and Temporary Labor Services Act. The emergency rules took effect August 7, 2023, and the proposed permanent rules are scheduled for publication August 18, 2023, which begins a minimum 45-day public comment period. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • August 4, 2023: Illinois Governor J.B. Pritzker signed HB 2862, making significant amendments to the Illinois Day and Temporary Labor Services Act (amending 820 ILCS 175/1 to 175/99). The amended law enhances protections for day and temporary workers regarding, among other things, equal pay, job site training requirements, rights to refuse certain assignments where labor trouble exists, and private rights of action. The law became effective August 4, 2023.
  • August 4, 2023: Illinois Governor J.B. Pritzker signed HB 1122, the Freelance Worker Protection Act (FWPA), which sets forth requirements for hiring or retaining a freelance worker, defined as a person hired or retained as an independent contractor to provide products or services in Illinois or for any Illinois-based entity in exchange for compensation of at least $500 (either in a single contract or in the aggregate of all contracts during the last 120 days). A contracting entity must:
    • memorialize the agreement to provide the services or products in a written contract, provide a copy of the contract to the freelance worker, and retain the contract for two years;
    • pay the freelance worker within 30 days after the freelance worker has completed the services or delivered the product and cannot ask the freelance worker to accept less compensation than the amount specified in the contract as a condition of timely payment once the freelance worker has started the work; and
    • not engage in any discriminatory, retaliatory, or harassing behavior toward contracted freelance workers.
    The FWPA does not apply to workers performing construction services or who work for a contractor who engages in construction, workers engaged in the traditional employer-employee relationship as defined in the Illinois Wage Payment and Collections Act, or any foreign, federal, state, or local government entities. Freelance workers may file a complaint with the Illinois Department of Labor or a lawsuit in Illinois circuit court against a contracting entity that violates the law. The law becomes effective July 1, 2024.
  • August 4, 2023: Illinois Governor J.B. Pritzker signed SB 2034, the Child Extended Bereavement Leave Act (also known as Zachary's Parent Protection Act) (adding 820 ILCS 154/35). The new law requires employers with at least 50 employees to provide between 6 and 12 weeks unpaid leave (depending on employer size) for employees who have lost a child due to suicide or homicide. The law becomes effective January 1, 2024. For more information, see by Jackson Lewis P.C.
  • July 28, 2023: Illinois Governor J.B. Pritzker signed HB 2493, amending the Illinois Victims’ Economic Security and Safety Act (VESSA) to expand the leave available to Illinois employees grieving a family member's death arising from a crime of violence (see by Jackson Lewis P.C.).
  • June 23, 2023: Fisher Phillips published a addressing Chicago's April 24, 2023 amendment of its ban-the-box ordinance to add new employer assessment and notice requirements and a February 1, 2023 amendment of the Chicago Human Rights Ordinance (CHRO) to provide bodily autonomy protections for workers.
  • June 5, 2023: Evanston, IL adopted a Fair Workweek Ordinance (24-O-23), expanding hourly workers' rights to predictable scheduling across multiple industries (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.). Evanston's city council subsequently delayed the original September 1, 2023 effective date until January 1, 2024 (see City of Evanston: Fair Workweek).
  • May 23, 2023: The Illinois Department of Labor (IDOL) published Paid Leave for All Workers Act FAQ, which provides guidance on the state's Paid Leave for All Workers Act, effective January 1, 2024.
  • March 23, 2023: In Walton v. Roosevelt University, the Illinois Supreme Court affirmed that Section 301 of the Labor Management Relations Act preempts Biometric Information Privacy Act (BIPA) claims asserted by bargaining unit employees covered by a collective bargaining agreement (CBA) (29 U.S.C. § 185; 740 ILCS 14/1). The Illinois Supreme Court also affirmed that the particular claim of the plaintiff, a union member covered by a CBA, was preempted where the method for clocking in and out of work was a subject covered by the CBA's broad management-rights clause. (2023 IL 128338 (Ill. March 23, 2023).)
  • February 17, 2023: In Cothron v. White Castle Sys., Inc., in response to a certified question from the Seventh Circuit, the Illinois Supreme Court held that a separate claim accrues under the Illinois Biometric Privacy Act (BIPA) each time a private entity scans or transmits an individual's biometric identifier or information in violation of BIPA section 15(b) or 15(d) ( (Ill. Feb. 17, 2023), rehearing denied, (July 18, 2023)). The Illinois Supreme Court holding is consistent with the district court's interpretation of BIPA (Cothron, 477 F. Supp. 3d 723, 731-33 (E.D. Ill. 2020)).
  • February 2, 2023: In Tims v. Black Horse Carriers, Inc., the Illinois Supreme Court reversed in part an earlier appellate court decision and held that the applicable statute of limitations for claims under BIPA is the five-year catch-all limitations period in 735 ILCS 5/13-205 (, at *1 (Ill. Feb. 2, 2023)).
  • January 17, 2023: The Illinois Department of Labor (IDOL) published regulations regarding amendments to the Illinois Equal Pay Act (IEPA), further clarifying the practical implications of obtaining an equal pay registration certificate under the IEPA (see by Jackson Lewis P.C.).
  • January 12, 2023: Effective January 1, 2024, Illinois will require private employers to provide a minimum of 40 hours (or a pro rata amount) of annual paid leave to employees to be used for any reason. Employers can choose to frontload the leave on the first day or employment or a designated twelve-month period or use an accrual method. Employers may not require any documentation or certification of the need to take leave. Employers may require up to seven days' notice if the leave is foreseeable and set a reasonable minimum of increment of no less than two hours per day. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)

Indiana

  • May 4, 2023: Indiana Governor Eric Holcomb signed SB 7 into law, which will render unenforceable all non-compete agreements between employers and primary care physicians entered into on or after July 1, 2023. The law will also render unenforceable other physician non-compete agreements depending on the circumstances of the termination of the physician's employment. (see by Jackson Lewis P.C.)

Iowa

  • June 1, 2023: Iowa Governor Kim Reynolds signed HF93, a law that limits restrictive covenants for mental health professionals. The law, which became effective immediately, bars employers from entering a contract with a licensed mental health professional that limits the location where the licensee may practice, prohibits the licensee from contacting someone previously treated by the licensee for professional services, or imposes a time restriction on the licensee's practice.

Kentucky

Louisiana

  • August 23, 2023: The DOL announced a partnership with the Workplace Justice Project that will help expand outreach to low wage workers in New Orleans.
  • July 26, 2023: The Fifth Circuit held that an employee's protected activity in refusing to comply with an indirect supervisor's illegal request was the but-for cause of his termination under the cat's paw theory of liability. The court found that the actual decisionmaker terminating the employee does not have to be the original source of retaliatory animus but can instead be influenced by others who do possess such animus. (Menard v. Targa Resources, L.L.C., (5th Cir. July 26, 2023).)
  • July 21, 2023: Louisiana Governor signed SB 200 into law on June 8, 2023, requiring employers to provide employees a one-day leave of absence from work for genetic testing and cancer screening when medically necessary. The law takes effect August 1, 2023. (See by Jackson Lewis P.C.)
  • June 27, 2023: In Menard v. Targa Resources, L.L.C., on questions certified by the Fifth Circuit, the Supreme Court of Louisiana held that:
    • an employee's refusal to participate in environmentally damaging employment activities comes within term “discloses” under LEWS and is a protected action, and
    • the LEWS does not exclude from its protection an employee whose job duties include reporting environmental violations.
  • January 6, 2023: In Menard v. Targa Resources, L.L.C., the Fifth Circuit certified the following questions to the Supreme Court of Louisiana:
    • whether refusals to engage in illegal or environmentally damaging activities are "disclosures" that might protect disclosing employees from retaliation under the current version of the Louisiana Environmental Whistleblower Statute (LEWS) (La. Stat. Ann. 30:2027); and
    • whether the LEWS protects an employee reporting to their supervisor an employer activity, policy, or practice that the employee reasonably believes violates an environmental law, rule, or regulation, where reporting those violations is a part of the employee's normal job responsibilities.
    ( (5th Cir. Jan. 6, 2023); certified questions answered by (La. June 27, 2023).)

Maine

  • July 11, 2023: The Office of Governor Janet Mills announced that Governor Mills signed into law a budget creating a paid family and medical leave program. Maine's legislature enacted the new paid family and medical leave benefits law on June 23, 2023, which would provide up to 12 weeks of paid leave per year to all eligible employees in the private and public sector, except for employees of the federal government, regardless of employer size. The benefits program is to be effective January 1, 2026, and start processing claims on May 1, 2026. However, a required funding audit and rulemaking may delay the program's implementation. (See by Jackson Lewis P.C.)
  • June 22, 2023: Governor Janet Mills signed LD 1423, increasing the limits on potential compensatory and punitive damages awards for violations of the Maine Human Rights Act (MHRA), and LD 1702, expanding the Maine Equal Pay Law to prohibit pay discrimination on the basis of race. Both laws take effect September 19, 2023.
  • June 15, 2023: Maine's Governor signed LD 903, allowing nontipped restaurant employees to participate in tip pooling if all participating employees are being paid the minimum hourly wage and the employers does not take a tip credit. The law takes effect September 19, 2023.
  • June 4, 2023: Maine enacted LD 53 into law, amending its workers' compensation law to provide that, notwithstanding the exclusivity of the workers' compensation remedy, an employee, supervisor, officer, or director of an employer may be individually liable for sexual harassment, sexual assault, or an intentional tort related to sexual harassment or sexual assault. The law takes effect September 19, 2023.
  • June 1, 2023: Maine Governor Janet Mills signed LD 688/HP 457, "An Act to Protect Access to Veterinary Care by Prohibiting Noncompete Agreements." The act amends Maine's existing non-compete law to ban non-compete agreements for licensed Maine veterinarians, except for those who have an ownership interest in a practice.

Maryland

  • May 3, 2023: Maryland Governor Wes Moore approved the Maryland General Assembly's modifications to the Maryland Time to Care Act of 2022 which, among other things, establish employer and employee shares of the total rate of contribution (SB 828).
  • April 11, 2023: Maryland's Governor signed the "Fair Wage Act of 2023" which mandates a uniform $15 hourly minimum wage for all employers effective January 1, 2024 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)

Massachusetts

  • October 3, 2023: The Massachusetts Department of Family and Medical Leave announced new rates for 2024 for the statewide leave program, such that:
    • the maximum weekly benefit amount that employees can receive will be $1,144.90 per week; and
    • the new contribution rate on eligible employee wages will be .88%.
    (See by Jackson Lewis P.C.)
    Effective November 1, 2023, all employees under both private and state PFML plans may top off their benefits with accrued paid leave (see by Fisher Phillips).

Michigan

  • March 24, 2023: Michigan's Governor signed the "Restoring Workers' Rights" bill package (see Michigan.gov Press Release, Gov. Whitmer Signs 'Restoring Workers' Rights' Bill Package Into Law). Within that package, House Bill No. 4007 re-enacts Michigan's prevailing wage law, requiring contractors on state projects to pay prevailing wages and fringe benefits, that is the wages and benefits Michigan's Department of Labor determines local unionized workers receive for performing the contracted type of work under their CBAs (Mich. Pub. Acts 10 (H.B. 4007)). Michigan's previous prevailing wage law was repealed effective June 6, 2018. This law will become effective after the Michigan legislature's term closes.
  • March 16, 2023: In Public Act No. 6, Michigan affirms civil rights protections for sexual orientation and adds civil rights protections for gender identity and expression (Publ. Act No. 6, 2023 Mich. Legis. Serv. P.A. 6 (S.B. 4) (Mar. 16, 2023).)
  • January 26, 2023: In Mothering Justice v. Attorney General, a three-judge panel of the Michigan Court of Appeals ruled that the Michigan Paid Medical Leave Act (PMLA) and Michigan Improved Workforce Opportunity Wage Act, as implemented in March 2019, will remain in place (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Minnesota

  • November 14, 2023: As discussed in a by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. published on this date, the Minnesota Department of Labor and Industry (DLI) has issued guidance on the state's paid earned sick and safe time (ESST) law, which takes effect January 1, 2024 (Minn. Stat. Ann. §§ 181.9445 to 181.9448). The agency has also published a sample employee notice employers may use to satisfy their ESST notice obligations.
  • October 18, 2023: Saint Paul, Minnesota’s City Council adopted Ordinance 23-48, amending to its Earned Sick and Safe Time Ordinance to align its legislative code with Minnesota’s Earned Sick and Safe Time law. The amendments, like the Minnesota law, go in effect on January 1, 2024. (See by Jackson Lewis, P.C.)
  • September 25, 2023: The City of Bloomington, MN, amended its paid sick leave law by Ordinance 2023-24, to more closely align it with the statewide paid sick leave mandate. Among other things, the amendment:
    • expands the definition of family member;
    • modifies the allowable reasons for leave;
    • allows frontloading with no waiting period; and
    • allows reasonable documentation to justify the reasons for leave.
    The amendment is effective January 1, 2024. (See )
  • August 23, 2023: The Minnesota Department of Labor and Industry (DLI) announced that minimum wage rates will be adjusted for inflation and increase 2.5% on January 1, 2024 (see by Ogletree, Deakins, Nash, Smoak & Stewart PC).
  • May 26, 2023: Minnesota Governor Tim Walz signed HF 447, which amends the Minnesota Human Rights Act to prohibit employment discrimination based on gender identity. This law takes effect January 1, 2024.
  • May 25, 2023: Minnesota Governor Tim Walz signed HF 2, providing paid family and medical leave benefits for family, bonding, and the employee's serious medical condition.
  • May 24, 2023, Minnesota's governor signed into law a far-reaching omnibus jobs and economic development and labor funding bill that, among other things:
    • provides for investing $500 million in a fund matching federal investments in infrastructure and large development projects;
    • bans employment non-compete agreements signed after July 1, 2023;
    • mandates certain worker safety protections;
    • creates new paid sick and safe leave entitlements;
    • provides employees with additional pregnancy and nursing accommodations;
    • prohibits employers from mandating attendance at employer-sponsored meetings about religious or political matters; and
    • adds protections for employees who disclose their own wages or voluntarily discuss their wages with other employees.
    (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; for more information on the ban on non-compete agreements, see by Epstein Becker & Green, P.C.; for more information on the prohibition against forced attendance at employer-sponsored meetings about religious or political matters, see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; for more information on the additional employee wage disclosure protections, see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • May 19, 2023: Minnesota Governor Tim Walz signed HF 2909, which prohibits employers form inquiring into, considering, or requiring disclosure of a job applicant's pay history during the hiring process. This law takes effect January 1, 2024.
  • March 31, 2023: Bloomington, MN published initial rules implementing its Earned Sick and Safe Leave (ESSL) Ordinance, which takes effect on July 1, 2023. It also published the mandatory Notice of Employee Rights in English (posters in other languages will also be available ). For this and additional information, see the Bloomington, MN webpage on ESSL.
  • March 8, 2023: The Minnesota Supreme Court held that under the Minnesota Workers' Compensation Act, an employee who no longer has a post-traumatic stress disorder (PTSD) diagnosis by a licensed psychiatrist or psychologist arising from a work-related traumatic event no longer is entitled to benefits. The court concluded that the definition of mental impairment added to the definition of compensable occupational diseases could not be expansively interpreted to include PTSD-adjacent disorders, such as the claimant's moderate alcohol use disorder in self-reported remission and "adjustment disorder." (Chrz v. Mower Cnty., (Minn. Mar. 8, 2023).)
  • February 8, 2023: The Minnesota Supreme Court held that under the Minnesota Human Rights Law (MHRA) a plaintiff claiming:
    • hostile work environment (HWE) must present evidence of "severe or pervasive" inappropriate workplace conduct, not simply by showing discrimination;
    • age-based disparate treatment can demonstrate an adverse employment action by establishing constructive discharge based on intentional discrimination driving the employee to resign, without having to show that it rises to the level of a hostile work environment, and applying different standards to HWE and disparate treatment claims; and
    • discrimination cannot demonstrate an adverse employment action (an element of the prima facie case) using a "cumulative effects" theory of discrimination.
    (Henry v. Indep. Sch. Dist. #125, (Minn. Feb. 8, 2023); see also by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • February 1, 2023: Minnesota Governor Tim Walz signed into law H.F. 37, prohibiting discrimination based on hair texture and hair styles, legislation commonly referred to as the "CROWN Act" (Minn. Stat. Ann. § 363A.03; see also by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Missouri

  • July 7, 2023: Missouri Governor Michael Parson signed Senate Bill (SB) 103, which limits the time and scope of restrictive covenants between businesses and their owners that are presumed to be reasonable under the law.

Montana

Nevada

  • June 15, 2023: Nevada passed Senate Bill (SB) 290, which requires earned wage access providers to obtain a license from the state government and regulates the providers. The law governs entities that provide consumers with an advance of income they have earned or accrued but have not been paid at the time the advance is made.
  • March 24, 2023: The Nevada OSHA announced increased penalties that took effect on January 17, 2023, and on March 24, 2023, released an updated list of establishments it is targeting for programmed inspections (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

New Hampshire

  • August 4, 2023: New Hampshire Governor Sununu signed HB 358, requiring covered employers to provide nursing mothers with an unpaid break of 30 minutes to pump for every three hours of work, effective July 1, 2025.

New Jersey

  • August 15, 2023: The New Jersey Department of Labor (NJDOL) issued proposed rules to implement the Temporary Workers' Bill of Rights Law and provided a 60-day comment period (see by Fisher Phillips). Among other things, the proposed rules:
    • define words and terms used in the law;
    • address the law's notification and recordkeeping requirements;
    • explain the equal pay and equivalent benefits requirements; and
    • address the law's provisions related to post-employment restrictions and payroll deductions.
  • August 14, 2023: In Crisitello v. St. Theresa School, the New Jersey Supreme Court concluded that because the NJLAD expressly provides for an exception where a religious institution relies on the tenets of its faith to adopt employment criteria, the religious tenets exception is an affirmative defense and the party asserting it has the burden of production and persuasion ( (N.J. Aug. 14, 2023), as revised (Aug. 14, 2023)).
  • August 8, 2023: The NJDOL launched the Workplace Accountability in Labor List (the WALL), a publicly available list of businesses with outstanding liabilities for violations of state wage, benefit, and tax laws enforced by the agency. Businesses on the list are prohibited from public contracting. (N.J.S.A. 34:1A-1.16; see also NJDOL Office of Strategic Enforcement and Compliance (OSEC): The Wall.)
  • July 24, 2023: Governor Phil Murphy signed into law A4682/S2389 protecting certain service workers working in covered locations from the sudden and unexpected loss of employment due to changes in ownership. The law takes effect October 22, 2023.
  • July 3, 2023: The NJDOL issued new guidance on the Temporary Workers' Bill of Rights. Among other things, the guidance clarifies that temporary staffing agencies in New Jersey must comply with the law even when assigning workers to a client outside the state (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • May 7, 2023: As the notice and anti-retaliation provisions of the Temporary Workers' Bill of Rights went into effect, the NJDOL issued a "Temporary Laborer Assignment Notification" form. Temporary staffing agencies must complete and provide this form, which is available on the NJDOL's website, to all temporary workers when they are assigned a temporary position (see by Ford Harrison).
  • February 6, 2023: New Jersey Governor Phil Murphy signed into law the "Temporary Workers' Bill of Rights" Bill A1474, giving temporary workers the right to certain information in their native language, including where they will be working, the kind of work to be performed, sick time allocation, the pay rate, and schedule, with certain provisions taking effect on May 7, 2023 and others on August 5, 2023 (see by Seyfarth Shaw LLP).
  • January 10, 2023: Almost three years after signing into law legislation significantly amending the NJ WARN Act, Governor Murphy signed Assembly Bill No. 4768, permitting the amendments to take effect on April 10, 2023 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

New York

  • December 27, 2023: The New York State Department of Labor (NYDOL) published its notice of adoption increasing the minimum salary thresholds for exempt executive and administrative employees for minimum wage and overtime purposes to $1,200 per week for New York City and its surrounding counties and $1,124.20 per week for the rest of the state, effective January 1, 2024. Under the new regulations, the thresholds will gradually increase each year through 2026.
  • December 22, 2023: Governor Hochul vetoed A.1278, which had been passed by the New York legislature in June 2023. Had it not been vetoed it would have become the most restrictive non-compete ban in the country. For more information, see Practice Note, New York Employment Laws More Favorable to Employees: Prohibited and Restricted Agreements.
  • December 3, 2023: New York City enacted a new law requiring the Department of Consumer and Worker Production to publish by March 1, 2024, a notice of a workers' bill of rights containing information on the rights and protections under federal, state, and local laws that apply to all workers in New York City regardless of immigration status and the right to organize a union. The law was passed by the NYC Council without the mayor's signature. Beginning July 1, 2024, employers must post a copy in a conspicuous location and distribute the notices to current workers and to all newly hired employees on the first day of employment. (Int. 0569-2022, adding N.Y.C. Admin. Code §§ 32-101 to 32-102; see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • November 22, 2023: New York City's rule setting a minimum pay rate for app-based restaurant delivery workers is upheld and allowed to go into effect. New York's Appellate Division, First Department, denied a motion for leave to appeal and for a stay by delivery platform companies (including Uber) and vacated the court's interim relief entered on September 29, 2023, which had granted a request for an interim stay. These proceedings followed a September 27, 2023 lower court decision denying petitions to block the rule and ruling that the new rule can become effective after a July 7, 2023 stay (see Uber Techs., Inc. v. New York City Dep't of Consumer & Worker Prot., 196 N.Y.S.3d 911 (N.Y. Sup. Ct. 2023)). (See by Jackson Lewis, P.C.)
  • November 22, 2023: New York Governor Hochul signed the Freelance Isn't Free Act to protect independent contractors who are hired for services in exchange for at least $800. The law:
    • requires a written contract between the hiring party and the worker;
    • requires the hiring party to pay for the services by the date specified by the contract or within 30 days after the worker provides services if the contract does not specify a payment date; and
    • prohibits retaliation against workers for exercising rights under the law.
    (See by Davis Wright Tremaine.)
  • November 17, 2023: New York Governor Hochul signed S3255, amending the New York State Human Rights Law to extend the statute of limitations for filing complaints about any alleged unlawful discriminatory practices to the New York State Division of Human Rights from one year to three years (see by Jackson Lewis, P.C.).
  • November 17, 2023: New York Governor Hochul signed S4516, amending the state's existing non-disclosure requirements to prohibit any settlement of unlawful discrimination, harassment, or retaliation claims from requiring:
    • the claimant to pay liquidated damages or to forfeit all or part of the consideration for the violation of a non-disclosure or non-disparagement provision; or
    • any affirmative statement, assertion, or disclaimer by the complainant that they were not subject to unlawful discrimination, harassment, or retaliation.
    The law took effect immediately upon signing. (N.Y. Gen. Oblig. Law § 5-336; see by Jackson Lewis, P.C.)
  • November 16, 2023: New York Governor Hochul signed S7551A, enacting the "Clean Slate Act," effective November 16, 2024. The law provides for the automatic sealing of specified criminal history records, rendering those records unavailable to most employers running background checks. The law also imposes new obligations on employers before and after running applicant or employee background checks. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • October 30, 2023: The New York State Department of Labor issued proposed regulations to align the state's industry-specific wage requirements with the upcoming increases in the state minimum wage. The proposed regulations (likely to be adopted) will adjust the New York Wage Orders on various issues, including credits against the minimum wage and the salary threshold excluding executive and administrative workers from "employee" status under the Wage Orders. (See by Jackson Lewis, P.C.)
  • October 17, 2023: In Eisenhauer vs. Culinary Institute of America, the Second Circuit held, interpreting New York Labor Law, that New York's equal pay law requires employers asserting the affirmative defense that pay disparity may be based on any other factor than sex to show that those factors are job-related ( (2nd Cir. Oct. 17, 2023)). The court noted that, "[s]ince January 2016, NY Lab. Law § 194(1) has required the bona fide factor other than sex or status to be job-related with respect to the position in question" (internal quotations removed).
  • September 29, 2023: New York's Paid Family Leave Program will be updated for 2024 so that employees' maximum:
    • weekly benefit is $1,151.16, $20.08 more than in 2023; and
    • annual contribution is $333.25, $66.18 less than in 2023.
    Additionally, the list of family members for whom eligible workers can take Paid Family Leave to care for was expanded in 2023 to include biological, adopted, step-, and half-siblings, including those living outside of NY and outside the US.
  • September 15, 2023: New York Governor Hochul signed A5295 and S5572. With some exceptions, A5295 renders unenforceable agreements that assign an employee's rights in an invention to their employer even where the employee develops the invention entirely on their own time without using the employer's property. S5572 increases the salary threshold for certain wage payment exemptions, including increasing the threshold for exemptions from pay frequency laws for executive, administrative, and professional employees from $900 to $1,300 per week, effective March 13, 2024. (See by Jackson Lewis P.C.; Legal Update, New York Limits Employee Assignment of Inventions Developed Using Own Time and Resources.)
  • September 15, 2023: New York City's Department of Worker and Consumer Protections adopted amended rules implementing the Earned Safe and Sick Time Act (ESSTA). The rules were amended to align with 2020 amendments to the ESSTA and provide further guidance to employers on compliance obligations. The amended rules are effective October 15, 2023.
  • September 14, 2023: New York Governor Hochul signed S2518A and S4878A. S2518A prohibits employers from requesting or requiring an employee or applicant to disclose access information for a personal social media account or performing other related acts. S4878A requires employers to provide employees written notice of their right to file for unemployment benefits when they are separated from employment (including temporary or indefinite separation) or experience a reduction in hours or other interruption of employment. (See by Jackson Lewis P.C.)
  • September 14, 2023: The New York State Department of Labor issued proposed rules to clarify employers' wage disclosure obligations as New York's pay transparency law became effective on September 17, 2023. Public comments on the proposed regulations are due by November 12, 2023. (See by Fisher Phillips.)
  • September 6, 2023: New York Governor Hochul signed S4982/A6604, modifying N.Y. Lab. Law § 201-d, to prohibit employers from requiring employees to attend employer-sponsored meetings with its primary purpose being to communicate the employer's opinions on religious or political matters, including on joining a labor organization (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • September 6, 2023: New York Governor Hochul signed New York S.B. 2832, adding wage theft to the activities included in the crime of larceny. The law took effect on signing. (See by Jackson Lewis P.C.)
  • August 23, 2023: New York Governor Hochul signed New York S.B. 7382, adding "gender identity or expression" as a protected class for purposes of the state's Human Rights Law prohibition against discrimination against interns. The law took effect on signing. (See by Jackson Lewis P.C.)
  • July 20, 2023: New York S.B. 244, adding N.Y. Gen. Bus. Law § 204, became effective and requires lodging facilities to provide human trafficking recognition training to employees who are likely to interact with guests within 60 days of beginning employment (or within four months for current employees).
  • July 7, 2023: A New York State Supreme Court judge temporarily enjoined the New York City Department of Consumer and Worker Protection from enforcing an increased minimum wage for app-based food delivery workers, which was set to go into effect on July 12, 2023. The court also scheduled a hearing on July 31, 2023, for arguments on a motion to issue a preliminary injunction against enforcement of the law. (See by Jackson Lewis P.C.)
  • July 4, 2023: New York City Local Law 31 became effective. The law amends the NYC Human Rights Law expanding the definition of "victim of domestic violence" to include victims of acts or threats of economic abuse by a committed by a current or former spouse or domestic partner or others in specified relationships with the victim (N.Y.C. Admin. Code § 8-102).
  • June 29, 2023: The New York City Department of Consumer and Worker Protection issued new guidance on the enforcement of the city's law regulating the use of automated employment decision tools (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • June 21, 2023: The New York State Department of Labor's amended WARN regulations took effect, expanding employer coverage by counting remote employees based at the worksite toward the employee threshold, adding new notice content requirements, establishing a new exception eligibility process, and more. (See by Jackson Lewis P.C.)
  • June 7, 2023: The New York State Department of Labor issued a model lactation accommodation policy, which employers must give to employees at hire, annually after hire, and when an employee returns to work after the birth of a child. Employers may include additional accommodations for their workplaces, but must implement the minimum standards set forth in the model policy. (See Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • May 26, 2023: New York City enacted an ordinance amending the New York City Human Rights Law to ban discrimination based on a person's height and weight in employment (as well as housing and public accommodations). The ordinance takes effect November 22, 2023.
  • April 11, 2023: The New York State Department of Labor finalized updates to its Sexual Harassment Model Policy, providing employers with a template to aid compliance with state laws prohibiting workplace sexual harassment. The agency also released an updated training video and new model training presentation slides. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • April 6, 2023: The New York City Department of Consumer and Worker Protection adopted final rules implementing the city's law regulating the use of automated employment decision or AI tools in hiring that takes effect on July 5, 2023 (see by Ogletree, Deakins, Nash, Smoak & Stewart P.C.).
  • March 3, 2023: New York Governor Hochul signed an amendment (S. 1326) to New York's pay transparency law taking effect on September 17, 2023, including removing language extending applicability to jobs that can or will be performed in New York, and instead stating the law applies to postings for jobs that will be physically performed in the state (see by Fisher Phillips).
  • February 16, 2023: Manhattan's District Attorney announced the formation of a Worker Protection Unit, the first of its kind, tasked with investigating and prosecuting wage theft and other forms of worker harassment and exploitation (see by Fisher Phillips).
  • January 23, 2023: Albany County's new pay transparency law takes effect March 9, 2023, and requires employers to disclose expected pay ranges in job postings (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • January 12, 2023: The New York State Department of Labor opened a comment period on a proposed model sexual harassment prevention policy after receiving feedback from workers, employers, and the public. The comment period ends February 11, 2023.

North Carolina

  • September 22, 2023: North Carolina General Assembly approved a budget for the period from July 1, 2023, through June 20, 2025. The budget became law without the governor's signature. Among other things, the budget provides that:
    • the state OSHA commission can only issue citations for violations that occurred within the past six months of the citation, not six months following the opening of an inspection; and
    • municipalities and other local jurisdictions cannot mandate higher minimum wage or more generous leave laws for private employers than under state law.
    (See by Ogletree, Deakins, Nash Smoak & Stewart, P.C.)

Ohio

  • November 7, 2023: Joining 23 other states, Ohio has passed a recreational marijuana law legalizing and regulating the cultivation, sale, purchase, possession, use, and home growth of recreational marijuana. The new law does not require an employer to "accommodate an employee's use, possession, or distribution of adult use cannabis." (See by Jackson Lewis, P.C.)
  • April 19, 2023: The City of Columbus joins Toledo and Cincinnati as the latest Ohio city to prohibit employers from asking prospective employees about past compensation. Effective March 1, 2024, employers operating in Columbus may not ask about a prospective employee's wage or salary history. The new ordinance makes it an "unlawful discriminatory practice" for an employer to ask about an applicant's salary history, which includes current or prior wages, benefits, or other compensation. (See by Jackson Lewis P.C.)

Oregon

  • July 31, 2023: Oregon Governor Tina Kotek signed HB 3443, expanding protected leave under the Oregon Family Leave Act (OFLA) to include bias crime victims. These amendments take effect January 1, 2024.
  • June 7, 2023: Oregon Governor Tina Kotek signed a law aligning certain Paid Leave Oregon provisions with the Oregon Family Leave Act (OFLA) (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • June 7, 2023: Oregon Governor Tina Kotek signed SB 907, prohibiting employers from retaliating or discriminating against employees or prospective employees who, in good faith and with no reasonable alternative, refuses to do work that would expose them to serious injury or death arising from a hazardous condition. These amendments take effect January 1, 2024.
  • May 24, 2023: Oregon Governor Tina Kotek signed into law Senate Bill 592, raising the maximum penalties for workplace fatality-related citations in Oregon far above federal limits, effective immediately (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • May 19, 2023: Oregon Governor Tina Kotek signed into law SB 184, modifying employer reporting requirements to the Oregon Department of Justice’s Division of Child Support to include the hiring of employees but also the engagement of independent contractors anticipated to perform 20 or more days of service. Oregon employers must file a report as specified within 20 days of hiring employees or engaging covered independent contractors. The revised reporting obligations are effective January 1, 2024. (Or. Rev. Stat. §§ 25.790 and 25.793.)
  • March 22, 2023: The Paid Leave Oregon Advisory Committee clarified through a docket agenda note that Oregon employers with collective bargaining agreements have until March 31, 2023, to begin deducting employee contributions to Paid Leave Oregon. (See by Ogletree, Deakins, Nash Smoak & Stewart, P.C.)
  • March 10, 2023: OSHA filed a notice, scheduled to be published on March 13, 2023, of the Oregon state occupational safety and health plan's eligibility for determination under Section 18(e) of the OSH Act regarding whether final approval of the state plan over temporary labor camps should be granted. The notice includes a request for written comments and notice of the opportunity to request an informal public hearing.

Pennsylvania

  • February 28, 2023: Philadelphia Department of Labor published the third supplemental regulation regarding the Promoting Healthy Families and Workplaces Ordinance and COVID-19 leave, accrued sick leave during COVID-19, and health care epidemic leave. The regulation clarifies, among other things:
    • which employers and employees are covered by each type of leave;
    • purposes for which covered employees may take each type of leave;
    • amounts of each type of leave to which covered employees are entitled; and
    • documentation employers may require for employees to use each type of leave.

Puerto Rico

Rhode Island

  • June 22, 2023: Rhode Island Governor Daniel McKee signed a bill that increases the penalties for employers that knowingly and willfully violate the wage and hour laws, and specified additional penalties for employers in the construction industry (2023 Rhode Island Senate Bill No. 1079).
  • June 22, 2023: Rhode Island Governor Daniel McKee has signed a bill that prohibits the use of nondisclosure or non-disparagement agreements regarding civil rights abuses "as a condition of employment" (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Tennessee

  • October 23, 2023: The Tennessee Department of Labor & Workforce Development announced upcoming changes to Tennessee's unemployment law. The changes affect areas including mandated indexing, short-term compensation and workshare, employer fraud reporting, and weekly work search activities.

Texas

  • June 30, 2023: The Texas Supreme Court held that morbid obesity does not qualify as an impairment under the Texas Commission on Human Rights Act without evidence that an underlying physiological disorder or condition caused the obesity (Texas Tech Univ. Health Scis. Ctr. - El Paso v. Niehay, (Tex. June 30, 2023)).
  • June 14, 2023: Texas Governor Abbott signed HB 2127, the Texas Regulatory Consistency Act, prohibiting local governments from regulating employment standards, including leave, hiring and scheduling practices, breaks, benefits, and "any other terms of employment that exceed or conflict with federal or state law for employers other than a municipality or county." The law takes effect September 1, 2023.
  • June 14, 2023: Texas HB 915 became effective, requiring all employers to post a notice to employees with contact information for reporting workplace violence or suspicious activity to the state's department of public safety (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).
  • May 27, 2023: Texas Governor Abbott signed into law the CROWN Act (House Bill No. 567), banning racial discrimination based on hair texture or hairstyle in employment (as well as schools and housing). For employment, the CROWN Act amends Chapter 21 of the Texas Labor Code by adding section 21.1095 (see by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.).

Virginia

Washington

  • December 14, 2023: The Washington State Department of Labor & Industries finalized and adopted new rules focused on protecting workers from wildfire smoke hazards that take effect on January 15, 2024. The new rules largely incorporate the emergency rules adopted in June 2022 but also have a new exemption, revised definitions, and additional clarifications on employer obligations. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • October 24, 2023: A Law Firm Publication describes the September 29, 2023 Washington Department of Labor and Industries announcement of increases to state and local minimum wage and exempt salary thresholds for 2024. The increases are effective January 1, 2024. (See by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.)
  • June 8, 2023: Washington Governor Jay Inslee signed SB 5586, effective January 1, 2024, which allows employees, an employer, and third parties acting on behalf of the employee or employer to request access to records related to paid family or medical leave claims.
  • May 15, 2023: Governor Inslee signed HB 1570, which creates a pilot program to allow certain transportation gig workers access to paid family and medical leave benefits as self-employed individuals.
  • May 9, 2023: Governor Inslee signed SB 5123 into law, which will prohibit employers from making hiring decisions based on off-duty cannabis use or a positive pre-employment drug test result detecting nonpsychoactive cannabis metabolites. The new law takes effect on January 1, 2024. (See by Jackson Lewis P.C.)
  • May 4, 2023: Governor Inslee signed SB 5111, which amends the minimum wage law and requires employers to pay out standalone unused paid sick and safe time to certain short-term or temporary construction workers.
  • May 4, 2023: Governor Inslee signed a new Washington law aiming to protect warehouse employees by setting certain requirements for employers and warehouse staffing agencies regarding production quotas, effective July 1, 2024 (see by Fisher Phillips).
  • April 18, 2023: In an unpublished opinion, the Court of Appeals of Washington, Division 2 held that Wash. Rev. Code Ann. 39.12.015(3) renders a straightforward determination of the scope of rights or duties under Washington’s prevailing wages law, RCW 39.12.026(1), erroneous, and therefore violates article II, section 37 of the Washington Constitution (Black v. Cent. Puget Sound Reg'l Transit Auth., 195 Wash. 2d 198, 205, 457 P.3d 453, 458 (2020)). RCW 39.12.015(3)(a) required that if multiple collective bargaining agreements (CBAs) exist within a county, the industrial statistician must adopt the highest collectively bargained wage and benefits rate as the prevailing rate instead of considering, as it is otherwise statutorily required, the number of employees covered by that CBA or the hours worked under that CBA, among other things. The Court of Appeals remanded the matter to the Washington Superior Court for further proceedings. (Assoc. Gen. Contractors of Washington v. State of Washington, (Apr. 18, 2023).) For further background, see 2022 Labor & Employment Law Developments Tracker: Washington (Nov. 1, 2022).
  • April 6, 2023: The Washington State Department of Labor & Industries recently released a draft administrative policy regarding tips, gratuities, and service charge requirements for employers. The new policy primarily contains examples to help answer employee questions and help employers comply with the Washington Minimum Wage Act's requirements. (See by Jackson Lewis P.C.)
  • March 29: The Seattle City Council passed an ordinance, effective May 1, 2023, providing for permanent paid sick and safe time for app-based, gig economy workers.
  • March 7, 2023: The Ninth Circuit certified three questions to the Washington Supreme Court regarding application of the Washington Minimum Wage Act (MWA) to federal civil immigration detainees held and working in a private detention center, including whether the detainees are employees under the MWA (Nwauzor v. GEO Grp., Inc., (9th Cir. Mar. 7, 2023)).
  • February 23, 2023: The Seattle City Council passed a first-of-its-kind ordinance prohibiting discrimination based on caste in employment, amending Seattle's anti-discrimination law to include caste as a protected classification. Seattle's mayor approved the ordinance on February 23, 2023, and the ordinance takes effect March 25, 2023. (See by Jackson Lewis P.C.)

Wisconsin

  • June 8, 2023, In Wingra Redi-Mix Inc. v. Labor and Industry Review Commission, the Wisconsin Court of Appeals held that a formal diagnosis at the time of an employee's request for accommodation is not required to raise the protections of the Wisconsin Fair Employment Act (see by Ogletree Deakins).