Employment

Mintz Antitrust and Government Law attorneys examine an FTC proposed rule that would ban almost all non-compete provisions in employment relationships. They also discuss why employers should consider auditing non-compete policies and practices and exploring alternatives such as non-disclosure or customer non-solicitation agreements.

On December 21, 2022, Governor Hochul signed into law S.9427-A/A.10477, which requires all private sector New York employers to list salary ranges for all advertised jobs and postings.  This law takes effect on September 17, 2023. 

2022 has been an eventful year for New York employers, as the State and City have instituted a variety of new employment laws.  Top of mind are New York City’s Salary Transparency Act and New York City’s sweeping regulation of automated employment decision tools; but we have also seen other laws emerge that may have missed employers’ radars.  As 2022 comes to a close, we highlight below some of these important new developments.

President Biden has signed into law the federal "Speak Out Act" limiting the enforceability of pre–dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes.  The Act takes effect immediately.

As described in more detail in our prior post, the Massachusetts Department of Family and Medical Leave (DFML) recently posted proposed changes to its Paid Family and Medical Leave (MAPFML) regulations.  Mintz attorney Patricia Moran gives updates on these changes which are intended to clarify the employer’s obligation to maintain employment-related health insurance benefits during MAPFML leave. 

In our fifth session, which focuses on employment law, the team is joined by Jen Rubin, a bicoastal Member in our Employment, Labor & Benefits Practice and Chair of our ESG Practice, to discuss best practices related to hiring an executive (hint: consensus is key), managing the executive at the board level, and how to (amicably) negotiate to terminate an executive.

State and city pay transparency laws requiring certain employers to publish “pay scales” in job advertisements also impact employers that sponsor foreign national employees for permanent resident (“green card”) status through the Department of Labor’s PERM process.

Effective January 1, 2023, New York City employers will be prohibited from using artificial intelligence in employment decision-making processes unless they take a number of specific and affirmative steps prior to doing so, including a bias audit of the tool.  These requirements have emerged following the passage of New York City Local Law 144 in December 2021, which creates a specific regime employers must adhere to in order to utilize automated employment decision tools, which the City has referred to as “AEDTs”. Many questions emerged following the passage of Local Law 144  and in response to some of these inquiries, the City’s Department of Consumer and Worker Protection (“DCWP”) has proposed rules that provide some answers, expand upon Local Law 144, and regulate the use of AEDTs.  Mintz attorneys Corbin Carter, Michelle Capezza and Evan Piercey analyze and discuss these proposed rules.

The Boston Celtics recent scandal comes at a time when workplace harassment claims (as reported by the EEOC) are on the rise, yet consensual office romantic relationships remain fairly common.  While most employees do not want their employers placing limits on whom they may seek as a romantic partner, from an employer’s viewpoint, the risks of such romances are clear, as they can easily cause real issues in the workplace: interoffice gossip, lack of productivity, reduced moral, allegations of favoritism, or worse, claims of sexual harassment. Mintz attorney Delaney Busch discusses key takeaways from this scandal and policies to minimize the employer’s risk.

California has now joined New York City and Colorado in requiring employers (for Golden State employers, of 15 or more) to publish “pay scales” in job postings. As with many things California, however, the new law (which becomes effective on January 1, 2023) regulates, but doesn’t guide. Pay transparency may be a worthy goal to effectuate parity, but employers face more questions than the new mandate answers. Mintz attorneys Paul Huston and Jen Rubin developed a field guide for pay “rangers” to help human resource professionals tackle this new law.

On August 19, 2022, the Departments of Health and Human Services, Treasury and Labor (the "Departments") issued final rules (the “Final Rules”) incorporating comments received on the interim rules issued in July and October 2021, clarifying some of the requirements set forth in Title I of Division BB of the Consolidated Appropriations Act, 2021 (the "Act") and the interim rules and accounting for relevant federal court rulings. In particular, the Final Rules primarily address three distinct but related topics: (1) eliminating the “rebuttable presumption standard,” (2) adding new rules regarding “downcoding,” and (3) reminding the arbitrators of their written requirements.  In this post Mintz attorneys Mark Aspis and Alden Bianchi discuss the implication of the Final rules which will be effective on October 25, 2022.

The Department of Homeland Security is seeking public comment on its proposed changes to I-9 document examination requirements, including one which would create a framework allowing DHS to pilot or implement permanent alternatives to in-person I-9 document examination requirements.