Employers face new challenges in navigating state and local pay equity laws. New York City joins a number of other jurisdictions that now require employers to disclose pay ranges when advertising job postings – including for incumbents as well as new hires. This law is set to take effect on May 15, 2022 (unless delayed by pending legislation discussed below). The New York City Commission on Human Rights (the “NYCCHR”) recently published a fact sheet providing guidance with regard to Local Law 32 of 2022 (the “NYC Law”). The NYC Law requires all covered employers to include a minimum and a maximum salary in any advertisement for a job, promotion, or transfer opportunity.
The first quarter of 2022 continued the trend of increasing regulation of the workplace by state and local governments. 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.)
California is among the first states to propose expressly regulating employers’ use of algorithms and artificial intelligence. In a March 25, 2022 virtual public meeting, the California Fair Employment and Housing Council discussed proposed regulatory changes that would address employers’ and third parties’ use of artificial intelligence in employment practices. While the proposed regulations remain a work in progress, they provide a glimpse into how policymakers are approaching these issues — and they could prove influential to other states (and even, potentially, the federal government) contemplating their own regulations in this space.
On March 14, 2022, the 9th Circuit affirmed the U.S. District Court for the Central District of California’s decision in DePuy Synthes Sales, Inc. v. Howmedica Osteonics Corp. and Stryker Corp., that invalidated the New Jersey forum selection clause in the employment contract of Stryker’s former sales associate as a matter of California law and denied Stryker’s motion to transfer the litigation to New Jersey. Though forum selection clauses are generally enforceable under federal law, the 9th Circuit reasoned that deference must be given to state law in determining the validity of a forum selection clause before considering whether the clause is enforceable under 28 U.S.C. § 1404(a).
The case involved a former Stryker medical device sales associate, Jonathan Waber, who was employed by Stryker in California and who signed an employment contract with Stryker without legal representation. The agreement included non-competition and non-solicitation provisions, and also included forum-selection and choice-of-law clauses requiring adjudication of contract disputes in New Jersey. After less than one year of employment with Stryker, Waber left Stryker to work for one of its competitors, DePuy. After receiving a cease-and-desist letter from Stryker, DePuy and Waber preemptively filed a declaratory judgment action in the U.S. District Court for the Central District of California against Stryker and its subsidiary, Howmedica.
On March 3, 2022, President Joe Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the Act) into law. Upon signing the bill, which had bipartisan Congressional support, President Biden proclaimed, “[w]hen it comes to sexual harassment and assault, forced arbitration shielded perpetrators, silenced survivors, enabled employers to sweep episodes of sexual assault harassment under the rug and it kept survivors from knowing if others have experienced the same thing in the same workplace, at the hands of the same person.”
On February 9, 2022, California Gov. Gavin Newsom signed Senate Bill 114, which provides COVID-19 supplemental paid sick leave (SPSL) for covered employees who are unable to work or telework due to COVID-19 related reasons from January 1, 2022 through September 30, 2022. SB 114 is nearly identical to Assembly Bill 84 (AB) which was passed by the California Legislature on February 7, 2022. SB 114 takes effect on February 19, 2022, (10 days after the bill is signed by Gov. Newsom) and adds Sections 248.6 and 248.7 to the California Labor Code.
Among other things, SB 114:
- Applies to employers with more than 25 employees.
- Establishes a new bank of COVID-19 related SPSL.
- Broadens the reasons employees can take COVID-19 SPSL
- Permits employers to request proof of a positive COVID-19 test as to the employee or the employee’s family member.
- Requires retroactive payment if an employee would have been eligible for SPSL since January 1, 2022.
- Will remain in effect until September 30, 2022.