Laborsphere

State & Local Employment Law Developments: Q4 2022

The trend of increasing workplace regulations by state and local governments continued throughout the fourth quarter of 2022. Although it is not possible to discuss all state and local laws, this update provides an overview of recent and upcoming legislative developments to help you and your organization stay in compliance. (Please note that developments related to issues such as minimum wage rates and COVID-19 are not included.)

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New Guidance Released for SB 1162 – California’s Pay Scale Disclosure Requirements

As part of California’s ongoing efforts to promote workplace pay transparency, Senate Bill 1162, which amends Labor Code section 432.3 and Government Code section 12999, went into effect on January 1, 2023. On December 27, 2022, the California Labor Commissioner’s Office released FAQs on the new pay scale disclosure requirements. This blog discusses the guidance provided by those FAQs, and provides takeaways for employers faced with the implications of SB 1162 as we ring in 2023.

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Summary of Cal/OSHA’s Non-Emergency COVID-19 Prevention Regulations

On December 31, 2022, the Cal/OSHA Emergency Temporary Standards (ETS), as previously summarized, expire after being in place since November 2020. On December 15, 2022, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to adopt non-emergency COVID-19 regulations to replace the ETS.

The new regulations are set to take effect in January 2023 after the Office of Administrative Law (OAL) completes its review. Once finalized, the new regulations will remain in effect for two years (but the recordkeeping requirements will remain in effect for three years).

The non-emergency regulations contain some of the same requirements as the ETS, but they also include new provisions. According to Cal/OSHA’s updated Fact Sheet, the new provisions are intended to be easier for employers to follow and allow for greater flexibility if changes are made pursuant to California Department of Public Health (CDPH) guidance.

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New York Artificial Intelligence Employment Law Delayed

The New York City Department of Consumer and Worker Protection (DCWP) announced that it will not start enforcing the law regulating automated employment decision tools until at least April 15, 2023. Local Law 144 of 2021 was scheduled to take effect January 1, but the DCWP attributed the delayed enforcement of the law to the high volume of public comments it received addressing its proposed regulations to implement the law. This law is the very first law within the United States squarely and comprehensively addressing the use of AI in making employment decisions. The law requires that before an employer uses an “automated employment decision tool” (AEDT, which is basically AI) that it conduct a bias audit within a year of using the tool, and that certain notices be given to candidates who may be subject to the AEDT, with an option to opt out of the AEDT process.

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Top Noncompete Developments of 2022

2022 was a relatively quiet year in terms of noncompete developments. However, both state legislatures and courts continued to take steps to narrow the circumstances under which noncompetition and employee non-solicitation agreements may be enforced. As such, employers remain well advised to continue to: (1) be selective in identifying those categories of employees required to sign noncompete agreements; (2) rely on choice of law and venue provisions as allowed to maximize the chances of enforceability; (3) keep a keen eye on statutory developments; and (4) avoid no-poach agreements with other employers.

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Busy Before the New Year: Three Recent NLRB Decisions That Will Impact Employers

Last week, the National Labor Relations Board (NLRB) continued its efforts to effectuate a strong national labor policy focused on advancing the organizational rights of workers and encouraging collective bargaining. Three recent decisions take aim at enhancing available remedies in unfair labor practice cases and facilitating organizing among smaller bargaining units.

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