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.)
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.
As we discussed in a previous alert, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) brought new employment protections for job applicants and employees who lawfully use cannabis off-duty. In addition, CREAMMA preserved an employer’s right to conduct drug testing of its workforce, but added a new requirement: testing for suspected use of cannabis must be accompanied by a physical evaluation to determine the employee’s level of impairment while engaged in performing job duties, as conducted by an individual certified to opine on the employee’s state of impairment.
New Jersey recently joined a growing number of states and territories — including Alaska, Arizona, Colorado, California, Washington, D.C., Illinois, Maine, Massachusetts, Montana, Nevada, Oregon, South Dakota, Vermont and Washington — legalizing recreational marijuana or cannabis. New Jersey Gov. Phil Murphy enacted the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA) on February 22, 2021 — legalizing the recreational use of cannabis for adults ages 21 and older — after New Jersey voters overwhelmingly passed a ballot initiative last November. The law comes with new employment protections for off-duty cannabis users that will significantly change how employers screen and conduct drug testing of job applicants and employees.
On June 1, 2020, New Jersey Governor Phil Murphy announced that the state is on track and expected to enter Stage/Phase 2 of the Restart and Recovery Plan on June 15, 2020, which will permit nonessential retail businesses to reopen to the public and permit in-person outdoor dining, so long as required social distancing and other mitigation protocols are followed. Personal care service providers, such as hair salons, nail salons and barber shops are scheduled to reopen on June 22, 2020.
On June 9, 2020, Governor Murphy signed Executive Order No. 153, lifting the stay-at-home order that had been in place since March 21, 2020. Executive Order No. 153 states, among other things, “Paragraph 2 of Executive Order No. 107 (2020), which requires New Jersey residents to remain home or at their place of residence with limited exceptions, is hereby rescinded.”