This Annual Report on EEOC Developments—Fiscal Year 2022 (hereafter “Report”), our twelfth annual publication, is designed as a comprehensive guide to significant Equal Employment Opportunity Commission (“EEOC” or “the Commission”) developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also analyzes the EEOC’s successes, setbacks, changes, and strategies. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.

The Decent Work Agenda (DWA) 2023 is the most important Portuguese legislative package dedicated to labor and employment law enacted over the last 10 years. The DWA entered into force on May 1, 2023, and has modified more than 70 aspects of the Portuguese Labor Code and other employment-related legislation (e.g., social security, temporary work law, Portuguese Labor Code of Procedure, and the Act for Services of Inspection by the Portuguese Labor Administration).

This Annual Report on EEOC Developments—Fiscal Year 2023 (hereafter “Report”), our thirteenth annual publication, is designed as a comprehensive guide to significant Equal Employment Opportunity Commission (“EEOC” or “the Commission”) developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also analyzes the EEOC’s successes, setbacks, changes, and strategies. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.

The Wisconsin Fair Employment Act (WFEA) prohibits employers from discriminating against applicants and employees on the basis of their arrest and conviction records.¹  Generally, an employer cannot make decisions on the basis of an arrest or conviction record unless the crimes “substantially relate” to the circumstances of the job at issue.²  For many years, the state agencies responsible for enforcing this law—the Wisconsin Department of Workforce Development (DWD) and the Labor and Industry Review Commission (LIRC)—have taken the view that crimes of domestic violen

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.  

California state and local governmental bodies—our state legislature, and counties and cities—were active again this year in their efforts to regulate the workplace. Littler Workplace Policy Institute has been tracking these bills as they worked their way through the legislature. Some were signed into law by Governor Newsom earlier this year and have already gone into effect.

A May 2021 court decision in California, All of Us or None v.

Rod Fliegel, William Simmons and Wendy Buckingham discuss the current limitations on the use of background checks for employment in California.

SHRM Online

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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.

SHRM Online

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Updated March 24, 2023: The CFPB has edited its updated Summary of Rights document to include the correct contact number. 

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UPDATE: Governor Hochul signed this bill on November 16, 2023, which will take effect one year from signing.

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Michael Paglialonga and Stephen Fuchs discuss New York’s new Clean Slate Act, which will prohibit employers from inquiring about sealed records or discriminating against applicants or employees based on sealed records.

SHRM Online

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Pennsylvania and Philadelphia recently enacted changes that impact employer criminal background screening.

State Law

Enacted on December 14, 2023, and effective February 12, 2024, Pennsylvania’s House Bill No. 689 amends Pennsylvania law relating to the expungement of certain criminal record information and employer immunity when hiring individuals with expunged records. 

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.

The Lehigh County Human Relations Ordinance was enacted February 26, 2024, establishing county-specific non-discrimination requirements for employment, housing, education, health care and public accommodations.  The ordinance also creates a Lehigh County Human Relations Commission charged with investigating and enforcing claims of discrimination.  The ordinance becomes effective June 1, 2024.

Expanded Protected Characteristics and Employer Coverage

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

Reuters

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The pandemic seems not to have slowed down state and local lawmakers.  Indeed, over 100 new labor and employment laws and ordinances are scheduled to take effect between July 1, 2021 and November 1, 2021.

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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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.

The federal Internal Revenue Service (IRS) has announced that certain employers can claim federal tax credits when employees use emergency paid leave to accompany an individual to obtain a COVID-19 vaccination and/or to care for an individual recovering from an injury, disability, illness, or condition related to the vaccine.

On November 10, 2021, the IRS released Revenue Procedure 2021-45, which contains its annual inflation adjustments for over 60 tax provisions, including not only individual income tax rates and deductions, but also many employer-provided benefits.

El 7 de enero de 2022, el Instituto Nacional de Estadística y Geografía (INEGI) publicó los nuevos valores para la Unidad de Medida y Actualización (en adelante “UMA”) que entrará en vigor el 1 de febrero de 2022, de acuerdo con lo establecido en el Artículo 5 de la Ley para Determinar la Unidad de Medida y Actualización.

Los valores de la UMA para el 2022 serán los siguientes:

On January 14, 2022, the Puerto Rico Department of the Treasury issued Internal Revenue Circular Letter No. 22-01 (CL IR 22-01) announcing the applicable 2022 limits for Puerto Rico qualified retirement plans.

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.

On September 17, 2022, Puerto Rico Governor Hon. Pedro Pierluisi issued Executive Order No. OE-2022-045, declaring a state of emergency due to the passing of Hurricane Fiona through the Island. Likewise, on September 21, 2022, President Joseph Biden authorized a disaster declaration for Puerto Rico, opening up additional relief and assistance for Puerto Rico's recovery process after the devastation left by the hurricane.

After two years of dealing with a pandemic, European countries are now shaken by record levels of inflation and flagging growth. To help households cope with this situation, which currently shows no sign of improving, governments and employers across Europe are adopting evolving policies.

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 December 14, 2022, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) signed and published a Memorandum of Understanding for Employment Tax Referrals (the “MOU”). The MOU establishes a system for referrals from the DOL’s Wage & Hour Division (WHD) to the Small Business/Self Employed Specialty Employment Tax unit (“SB/SE”).

The Puerto Rico Department of the Treasury recently issued Internal Revenue Circular Letter No. 23-01 (CL IR 23-01) announcing the applicable 2023 limits for Puerto Rico qualified retirement plans.

The U.S. Department of the Treasury has released a document to explain the revenue proposals included in President Biden’s FY 2023 proposed Budget.

In March, the UK government announced changes to the tax regime surrounding pensions as part of the annual Budget.

In this piece, we take a deep dive into what these changes are, who they affect, what employers should be doing in response and ask: is this really a big deal?

What is changing?

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

Dear Littler,

We are a small company based in Milwaukee, Wisconsin that allowed some of our employees to work remotely during the pandemic. When we recently announced our plans to call employees back to home base in Milwaukee, we received feedback that some employees did not plan to come back—they want to continue working remotely. We anticipated this, and we’re working with them to navigate their individual situations, but we were surprised to learn that some of our employees have actually relocated to different states!

On January 31, 2024, the Puerto Rico Department of the Treasury issued Internal Revenue Circular Letter No. 24-01 (CL IR 24-01) announcing the applicable 2024 limits for Puerto Rico qualified retirement plans.

Bradford J. Kelley and Maria Malaver-Reyes discuss how Loper Bright will impact federal and state administration of AI statutes, regulations and guidance.

Westlaw Today

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Bradford Kelley says the U.S. still lacks comprehensive AI legislation, but C-suite executives are taking note of a sharp rise in regulatory activity to address AI use in the workplace.

International Employment Lawyer

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Kerry E. Notestine, Chad J. Kaldor, Shawn Matthew Clark and Garrick D. Josephs compare and contrast the Maryland WARN Act and its federal counterpart, the Worker Adjustment and Retraining Notification (WARN) Act.

SHRM

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Bradford Kelley, Sean O’Brien and Alice Wang discuss a new AI framework from the U.S. Department of Labor and what it means for employers. (Subscription required)

Law360

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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”).

Kerry Notestine, Chad Kaldor, Shawn Matthew Clark and Garrick Josephs discuss the Maryland WARN Act and compares and contrasts it with its federal counterpart, the Worker Adjustment and Retraining Notification (WARN) Act.

Wolters Kluwer

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Jim Paretti offers his opinion on how things have gone in interactions with the U.S. Equal Employment Opportunity Commission during the pandemic.

Law360 Employment Authority

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Michael Lotito writes about unions and their allies’ attempts to sneak parts of the Protecting the Right to Organize (PRO) Act into the budget bill.

The Wall Street Journal

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On April 4, 2022, in Fraser Health Authority v British Columbia General Employees’ Union, 2022 CanLII 25560, Arbitrator Koml Kandola of the British Columbia Labour Relations Board dismissed the union’s grievance respecting the dismissal of the grievor because she was ineligible to work under the order issued b