Technology facilitates remote work in ways that, years ago, just were not possible. Take telecommuting. These days, all kinds of jobs that had to be performed at an employer site are now performed remotely. Some call center workers, for example, now work from home using home telephones — no brick-and-mortar call center needed. Some secretaries now telecommute using laptops and the internet. Some teachers now teach remotely using laptops and video links.

The economy has been awash with mixed messages in recent months – throwing a wrench into many employers’ workforce planning.

This complex picture raises a host of important questions for companies: Do they continue hiring as normal? Prepare for a downturn? Implement reductions in force (RIFs) or layoffs?

Two noteworthy developments have occurred since the California Fair Employment & Housing Council released draft revisions to the state’s employment non-discrimination laws on March 15, 2022 that relate to the nascent law surrounding the use of artificial intelligence, machine learning, and other data-driven statistical processes to automate decision-making in the employment context.  

The Fair Credit Reporting Act (FCRA) is a federal law that governs employment-related background checks.  Most lawsuits asserting federal claims proceed in federal court.¹  The FCRA is atypical in that FCRA claims can proceed in either federal or state court.  A new opinion from a California court of appeal in Hebert v.

Earlier this month, Governor Ned Lamont announced the long-awaited implementation of the state’s so-called “Clean Slate Act” – sort of.  According to a recent press release, January 1, 2023 will see the full or partial erasure in some 44,000 cases involving convictions for cannabis possession.  Individuals with eligible convictions for other crimes, including most misdemeanors and certain lesser felonies, will have to wait until the second half of 2023 as a result of implementation delays.

The Clean Slate Law & How it Works

Rod Fliegel co-authors a report that explains negligent hiring, employers’ risks and how they can protect their company. 

Legal Action Center

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Two new laws will take effect next year that restrict how employers may respond to worker off-duty cannabis use.  One law will restrict employers’ ability to ask about prior cannabis use in the hiring process, and the other will limit employer actions based on positive marijuana drug tests.

Dear Littler: You alerted us to some wage & hour and leaves & benefits issues stemming from our “wandering workers” who have scattered across the country during the pandemic, yet continue to work for our Texas-based company.

In Mexico, the fiscal authority has dramatically strengthened all the strategies that allow for better control and collection of employment taxes, and Jorge Sales Boyoli explains what that means for employers.

Forbes Mexico

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On June 30, 2022, the governor of Puerto Rico signed into law Act No. 52 (Act 52-2022), which amended the concept of “engaged in trade or business” under the Puerto Rico Internal Revenue Code of 2011, to address the pandemic-related issue of employees working remotely from the Island for “out-of-state” employers with no business nexus to Puerto Rico.

Pursuant to Act 52-2022, for taxable years commencing after December 31, 2021, businesses with employees working remotely from Puerto Rico will not be deemed “engaged in trade or business,” provided the following conditions are met:

UK Chancellor Jeremy Hunt delivered the Autumn Statement (Medium-term Fiscal Plan) on November 17, 2022. The plan states that the government’s priorities are “stability, growth and public services,” and sets a markedly different tone from the “Growth Plan” published in September, which promised to make “growth the government’s central economic mission.”

Dear Littler: Considering the recent passage of the federal Speak Out Act limiting the use of pre-dispute nondisclosure and non-disparagement clauses involving sexual assault and sexual harassment claims, what impact will this have on our template releases, separation agreements, and litigation settlement agreements? How do you recommend we revise those documents?

                                         —Revising Releases

Dear Revising,

On July 21, 2023, New Jersey Governor Phil Murphy signed Assembly Bill No. S3128/A4694 into law,¹ which implements an aggressive tax treatment of nonresidents who work for New Jersey employers.

The Massachusetts Department of Family and Medical Leave (Department) just announced the 2025 weekly benefit amount and contribution rates for both employers and employees under the state’s Paid Family and Medical Leave benefit program, which is funded through a payroll tax.

Lauren J. Marcus, Amber M. Spataro and Francis A. Kenny discuss New Jersey’s new bill that would require employers to disclose wage or salary ranges and general benefits information in each job posting/advertisement.

SHRM

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Over the years, attempts to arbitrate breach of fiduciary duty claims under the Employee Retirement Income Security Act (ERISA) Section 502(a)(2) have had varying results.¹  One court recently recognized that “whether any benefits plan may agree to submit to arbitration and/or whether an individual employment agreement may compel claims on behalf of a benefits plan to proceed to arbitration are not issues of clearly settled law.”²  This issue is before two circuit courts of appeal this year.  So far, the court rulings in the cases seem to provide some guidance while a

Michael Lotito offers insight on the Protecting the Right to Organize Act (or PRO Act), which includes a change to a standard known as “joint employer.”

Entrepreneur

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Pamela Reynolds’ article discusses whether employers can enforce arbitration of breach of fiduciary duty claims under the Employee Retirement Income Security Act (ERISA) Section 502(a)(2).

Benefits Pro

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Rhonda B. Levy and Douglas Sanderson examine Northern Regional Health Authority v. Horrocks, in which the Supreme Court of Canada decided that in Manitoba, human rights disputes arising from the interpretation, application or alleged violation of a collective agreement fall within the exclusive jurisdiction of a labour arbitrator.

Human Resources Director Canada

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Jay Inman says that vital industries, including healthcare, hospitality and manufacturing, will continue to see significant workplace changes in 2023.

The Lane Report

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Jim Paretti says several new bipartisan laws focused on issues women experience in the workplace may move employers to work on preventing instances that would violate the new measures.

Bloomberg Law

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Theodora Lee said overall case filings in the San Francisco state trial court have been down significantly compared to pre-pandemic levels, but she’s seeing an uptick in labor and employment law cases.

The Recorder

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William H. Foster and Katie E. Towery examine the impact President Biden’s “America’s Jobs Plan” might have on South Carolina’s growing businesses and workforce. 

Association of Corporate Counsel South Carolina

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On July 22, 2021 the Puerto Rico Department of Health (PRDOH) issued Administrative Order No. 2021-509 (AO) providing that, in order to physically attend school, post-school educational institutions, or universities, personnel and students age 12 and older must be vaccinated against COVID-19. According to the PRDOH, the vaccination requirement for in-person school attendance will play an essential role in controlling the pandemic and providing a safer educational environment for students.

Puerto Rico Governor Pedro R. Pierluisi recently issued back-to-back executive orders (EO) regarding COVID-19. It appears that the third EO was stuck in holiday traffic. This latest EO, like her sisters, amends November’s EO-2021-075 to curtail COVID-19 infections.

On February 5, 2024, the NLRB’s Regional Director for Region 1, Laura Sacks, issued a written decision finding that Dartmouth’s men’s basketball players are employees under the National Labor Relations Act. Based on their status as employees, Regional Director Sacks found, Dartmouth’s men’s basketball players are eligible to vote in a union election petitioned for by Local 560 of the Service Employees International Union, a labor union that already represents several other more traditional employee groups at Dartmouth.

Tyler Sims discusses the potential wage-and-hour implications of Dartmouth College’s men’s basketball team voting to form what may become the NCAA’s first-ever athlete labor union.

HR Dive

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Colleges and universities that employ their own students face conflicts about how to protect student information, as required by the Family Educational Rights and Privacy Act (FERPA), while disclosing information about student-employees who seek to unionize, as required by the National Labor Relations Act (NLRA).

On August 6, 2024, the National Labor Relations Board’s general counsel issued a memorandum with her advice about how higher education institutions should handle this dilemma.

On August 9, 2024, the NLRB denied Pardee RAND Graduate School’s (“RAND”) request for review of a regional director’s Decision and Direction of Election (DDE) finding that a petitioned-for unit of graduate policy researchers was an appropriate bargaining unit. The Board found that RAND’s request raised no substantial issue warranting review.

On November 24, 2022, Bill 41 – 2022: Workers Compensation Amendment Act (No. 2), 2022 (Bill 41), which introduced changes to British Columbia’s Workers Compensation Act, received Royal Assent. Effective January 1, 2024, Bill 41 imposes certain duties on employers and employees following a workplace injury.

In a significant decision about workplace drug use, the Connecticut Appellate Court backed an employer’s right to terminate a worker who was impaired on the job by medical marijuana. The decision also clarified the factual basis an employer must possess to justify ordering a drug test based on suspicion of impairment.

Felicia Watson discusses three concerns about a proposed OSHA rule that would protect indoor and outdoor workers from heat illness.

SHRM

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Connecticut and Rhode Island construction industry employers are facing a significant increase in government scrutiny of their labor and employment practices over the next several years. On November 30, 2011, the Hartford office of the U.S Department of Labor's Wage and Hour Division ("U.S. DOL") issued a press release announcing a "multiyear enforcement initiative" aimed at improving what it sees as "widespread noncompliance with minimum wage, overtime and record-keeping provisions of the Fair Labor Standards Act" in the construction industry in both Connecticut and Rhode Island.

Connecticut has passed a new law regulating electronic nicotine delivery systems and vapor products in various venues, including numerous places of employment.  Effective October 1, 2015, Public Act No. 15 206 (the Act) supersedes and preempts any relevant provisions of municipal laws or ordinances regarding the use of these products. 

The Law

The Act prohibits the use of electronic nicotine delivery systems and vapor products in:

1. buildings owned or leased and operated by the state or its political subdivisions,

Mark Phillis discusses the practice of looking to HR professionals to testify in court and conduct workplace investigations.

Bloomberg BNA Human Resources Report

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(December 1, 2023) – Littler, the world’s largest employment and labor law practice representing management, earned the top score of 100 on the Human Rights Campaign Foundation’s 2023-2024 Corporate Equality Index (CEI) for the 15th consecutive year. The firm joins the ranks of 545 major U.S. businesses who also earned top marks in this year’s benchmarking survey and report, which measures corporate policies and practices related to LGBTQ+ workplace equality.

(January 10, 2024) – Littler, the world’s largest employment and labor law practice representing management, has released its Inclusion, Equity and Diversity (IE&D) C-Suite Survey Report, completed by more than 320 C-suite executives across the United States.

In a letter sent to Congress today, the Coalition expresses support for legislation that would modernize America’s workforce development and education system

Update: On August 2, 2024, Illinois Governor J.B. Pritzker signed SB 2979 into law, reforming the liability guidelines under the Illinois Biometric Information Privacy Act.

CHICAGO (April 11, 2024) – Today, the Illinois Senate passed SB 2979, which would reform the liability guidelines under the state’s Biometric Information Privacy Act (BIPA). The bill marks an important milestone in the broader effort to resolve BIPA’s vague statutory language and courts’ expansive interpretations of the law, which have posed a threat to businesses that capture biometric information.