The City Council of Atlanta, Georgia recently passed an ordinance that amends its existing anti-discrimination law to include protection on the basis of “criminal history status” as well as “gender expression.”  The ordinance is effective immediately.

With regard to gender expression, the law simply amends existing law to include “gender expression” as an additional protected characteristic.

Rachel P. Kaercher, Wendy Buckingham and William J. Simmons examine a new ordinance passed by the Atlanta City Council that amends its existing anti-discrimination law to include protections on the basis of criminal history status and gender expression.

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Updated July 31, 2023: The Council’s Modifications to Employment Regulations Regarding Criminal History discussed in this Insight have just been approved by the Office of Administrative Law, and the modified regulations will go into effect on October 1, 2023. Key changes from the initial proposal include:

Rod M. Fliegel and Alice H. Wang discuss the Civil Rights Council of the California Civil Rights Department’s latest revisions to the Fair Employment and Housing Act (FEHA) regulations that govern employers' use and consideration of criminal history in employment decisions.

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Alice Wang and Rod M. Fliegel say the Fair Chance Act of 2023, a California bill under consideration in the state senate, “would more or less upend the ordinary hiring process for just about every employer in California,” if passed.

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Rod Fliegel discusses California’s proposed Fair Chance Act of 2023, which would further restrict how employers can use information about the criminal histories of job seekers and employees, and offers tips for complying with the current Fair Chance Act.

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The California Civil Rights Council previously issued draft revisions to the Fair Employment and Housing Act’s regulations governing inquiries into and consideration of a job applicant’s criminal history in making hiring decisions.  On July 24, 2023, the Office of Administrative Law approved the Council’s proposed modifications to the regulations. 

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.

Illinois state and local legislatures kept busy in 2023 with the enactment of numerous new labor and employment laws, including significant changes to paid and sick leave for employees and new protections for temporary laborers and independent contractors. While some laws took effect during 2023, implementation of others was pushed to 2024. These are some significant employment law changes requiring employer compliance in the new year.

IL Paid Leave for All Workers Act

Companies that hire employees and engage independent contractors in California should brace themselves for an even greater slowdown in background checks that include criminal record searches in Los Angeles County.¹ This will result from the drastic impact of the court of appeal’s 2021 opinion in All of Us or None v.

On March 14, 2024, the Massachusetts House of Representatives passed legislation that would add a new provision to the Massachusetts Consumer Protection law and would bar the use of true credit reports for employment purposes, i.e., for the purpose of evaluating an individual for employment, promotion, reassignment, or retention as an employee.  The legislation, entitled An Act Reducing Barriers to Employment Through Credit Discrimination (H.1434), is expected to be adopted by the Massachusetts Senate and promptly signed into law by Governor Maura Healy.  Once adopted, th

Employers with operations in California are all too familiar with how state and local officials continue to restrict the access employers have to public records, including criminal history information.¹ For example, lengthy delays in completing standard criminal background checks are now routine in California.² Apart from criminal background checks, many employers rely on motor vehicle record checks (MVRs) to vet candidates for positions that require driving as part of the job.  In Doe v. California Dept.

Devjani Mishra discusses Littler’s Executive Employer survey, which found that most employers are planning to implement a hybrid work model.

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Damon Ott discusses some options that trucking companies in the state may pursue when the old way of doing business is no longer open to them. 

FreightWaves

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Hinna Upal discusses things employers should consider in the post-pandemic workplace, including employees’ work-from-home arrangements.

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Effective October 1, 2021, the New Jersey Division of Taxation (the “NJDT”) ended the temporary relief period with regard to employers’ obligation to withhold income taxes for teleworking employees who work in New Jersey.¹  Employers must therefore stop basing their obligation to withhold and remit income taxes on the employer’s jurisdiction, and instead should do so based on where the employee’s service or employment is performed. If that location is New Jersey, employers should withhold New Jersey taxes from such wages.

On January 7, 2022, Mexico’s National Institute of Statistics and Geography (INEGI by its acronym in Spanish) published the new values for the Updated Metric Unit (Unidad de Medida y Actualización or UMA) that will take effect on February 1, 2022, as provided by Article 5 of the Law to determine the value of the UMA. The UMA serves as the basis for calculating the payments, obligations, or penalties that are owed to the government, whether under federal or state law. Its updated value is published on an annual basis.

The values of the UMA for 2022 will be as follows:

On June 9, 2022, the Internal Revenue Service issued Announcement 2022-13, increasing the optional standard mileage rate for the final six months of 2022 from 58.5 cents per mile to 62.5 cents per mile.  The new rate will be effective for traveling beginning on July 1, 2022, through December 31, 2022.  The old rate of 58.5 cents per mile will remain in effective through June 30, 2022.

2022 is coming to a close, and the new year will be here before we know it.  While many states, cities and counties seem to be willing to pass employment laws and regulations at any time, the first day of a new year is still the number one day for new employment laws to take effect. 2023 will be no exception. 

Since October 1, 2020, Oregon employers have operated under the Workplace Fairness Act (“OWFA”), which restricts employers from including confidentiality, non-disparagement, and no-rehire provisions in settlement agreements and separation agreements unless the employee specifically requests them. In March 2022, Governor Kate Brown signed Senate Bill 1586 into law, which amends the OWFA effective January 1, 2023, and clarifies many of the provisions of the original OWFA.

In an opinion issued on June 20, 2023, the United States Court of Federal Claims reminded taxpayers that they must obtain a certificate of coverage in order to claim an exemption from Social Security and Medicare taxes (FICA) under a totalization agreement.

On June 15, 2023, Nevada Governor Joe Lombardo signed SB 290, which requires early wage access (EWA) providers to obtain a license from the Commissioner of Financial Institutions. This is the first EWA law enacted by any state. 

Early Wage Access Generally

The IRS recently updated its guidance for completing Form 1099-K, used primarily by “gig” companies providing compensation using payment apps or online marketplaces and for individuals selling goods on online marketplaces such as Etsy. As background, in order to promote greater tax transparency and compliance, in 2008 Congress enacted Internal Revenue Code section 6050W to require that certain “third party network transactions” be reported on the then-new Form 1099-K.

Andrea M. Kirshenbaum discusses how Johnson v. NCAA is noteworthy beyond the realm of college athletics for its expansive discussion of the FLSA.

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Sarah Bryan Fask says a decision clarifying when employers can exit union-brokered pension plans “potentially opens up the floodgates for a lot of employer uncertainty.”

Bloomberg Law

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Joy Rosenquist discusses what California employers should watch for after the state’s AI bias bill failed and its Civil Rights Department continues work on proposed regulations that could be game-changing.

Law360 Employment Authority

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Rebecca Goldstein talks about new workplace violence prevention laws in California and New York.

Bloomberg Law

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To support personnel transitioning from the military to the civilian workforce, the U.S. Department of Defense (DOD) in 2011 instituted the SkillBridge internship program, which provides service members with valuable civilian work experience through unpaid internships during their last 180 days of service, while the military continues to pay their wages and full benefits.

Starting in January 2025, California’s Fair Employment & Housing Act (FEHA) will prohibit employers from including a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license unless the employer “reasonably” anticipates driving to be an essential job function that cannot be comparably performed by alternative means. The stated purpose of the new FEHA amendment is to help facilitate employment for non-drivers who rely on ride hails, public transportation, biking, and walking as their primary means of transportation.

Adam Fiss and Sebastian Chilco review updates to California’s paid leave law.

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Bradford Kelley and Britney Torres predict politics in the workplace will remain an issue beyond the election and so California employers need a long-term plan measures for issues that include voter intimidation and discrimination and employees taking time off to vote.

Law360

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Bradford J. Kelley and James A. McGehee discuss mandates for employers involved in the SkillBridge internship program, which provides military members with civilian work experience.

Westlaw Today

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Adam Joshua Fiss and Sebastian Chilco discuss a new California law that will eliminate employers’ ability to require employees to use up to two weeks of company-provided vacation before they start receiving paid family leave benefits.

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Rod M. Fliegel discusses California legislation that further amends the Fair Employment and Housing Act to prohibit discrimination in the hiring process based on the applicant’s lack of a driver’s license.

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Following other states and cities across the nation, California Governor Gavin Newsom signed Senate Bill 988, the Freelance Worker Protection Act (FWPA), into law on September 28, 2024. This new law aims to provide greater protections to freelance workers (e.g., “independent contractors”).

Employers concerned about the risks and expenses associated with employment litigation have increasingly required their employees to agree to arbitration in the event of a dispute.  Even upon the issuance of the arbitrator’s final decision, however, a court’s intervention may still be necessary.  At the very least, the court can actually enforce an arbitration award, whereas the arbitrator cannot.  Moreover, the losing party in the arbitration may seek to vacate the arbitrator’s decision on limited grounds, or seek further review of the district court’s decision by filing an appeal with th

Libby Henninger weighs in on several wage and hour bills that will be prevalent in the next six months.

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George Vassos explains new rules that broaden and clarify British Columbia’s ability to investigate employment compliance matters and tighten rules for hiring children younger than 16 years old.

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In Aponte Valentín v. Pfizer Pharmaceuticals, CC-2018-748,¹ the Puerto Rico Supreme Court reinforced the strong public policy favoring arbitration agreements in Puerto Rico, validating continued employment as implicit consent for such agreements.

On July 8, 2022, in Gist v. ZoAn Management, Inc., the Oregon Supreme Court affirmed the decisions of the trial court and court of appeals granting the defendants’ motion to compel arbitration.  The court concluded that because nothing in the arbitration agreement prohibited the plaintiff from being awarded any relief he might be entitled to under Oregon’s wage and hour statutes, the arbitration provision was not unconscionable and therefore enforceable.

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