COVID-19 and the rise of remote work forced companies everywhere to take a hard look at many corporate policies and bylaws, including aspects of employment contracts and severance agreements.
These changes could impact your rights, your health or even your ability to a file a lawsuit against your employer. Here’s a brief summary of the changes or practices you should be aware of heading into 2022.
Shot or Test Mandate
While most employment laws are set at the state level, the emergency temporary standard (ETS) is a federal law that will impact everyone employed by a company with at least 100 workers.
Unless it is overturned, workers will need to submit proof of a COVID-19 vaccination by January 10, or submit to weekly testing and wear face coverings beginning February 9. SCOTUS heard oral arguments on the case on January 7, so stay tuned.
Mandatory Arbitration/Jurisdiction Clauses
If you work remotely for a business located in a different state, watch out for jurisdiction clauses and/or mandatory arbitration clauses in employment agreements. These terms determine which sets of laws govern your relationship with an employer, and may restrict your ability to request a jury trial for employment disputes, explained Joyce Smithey, a labor and employment attorney.
Arbitration tends to favor the employer so be careful about what you sign, advised Supreeta Sampath, who exclusively represents employees as principal of the Sampath Law Firm. She also advised technologists to keep tabs on the progress of AB 51, which bans mandatory arbitration agreements in California.
Paid and Unpaid Leave
After most states expanded paid leave in 2021, four states (as well as Washington, D.C.) are either adding paid leave, modifying existing leave laws, or making changes to unpaid leave legislation in 2022.
“The trend is toward expanding paid leave, with several states considering mandatory bereavement leave,” Smithey said.
For example, California just added protected leave for the care of parents-in-law for both private- and public-sector employees, while in Oregon, employees can take leave during a public health emergency if they worked an average of 25 hours per week for at least 30 days.
While California and Oklahoma outright ban enforcement of non-compete agreements, several states have recently taken steps to limit the scope of non-compete agreements by restricting the time frame and the qualifying salary level. In Oregon for example, non-compete agreements longer than 12 months will be unenforceable effective January 1, 2022, and last year, the state prohibited them for workers earning less than $100,533 per year. Similarly, Washington State has set a qualifying limit of about $100,000 for an employee and $250,000 per year for an independent contractor, and Illinois implemented a $75,000 ceiling on January 1.
Some states have gone even further by requiring something called paid “gardening leave,” where employees who either resign or are laid off are paid all or a portion of their salary during the period that they will be subject to a non-compete.
While being discriminated against by a hiring manager due to age, race, gender and so forth continues to be illegal, Illinois is making it more difficult to discriminate against applicants who haven’t been interviewed by a human being.
Beginning January 1, an employer that relies solely on artificial intelligence for selecting candidates for in-person interviews must report data about the race and ethnicity of applicants who are and are not offered in-person interviews, as well as race and ethnicity data for applicants who are hired. Look for other states to follow suit.
There are even more changes in store in 2022 in the anti-discrimination landscape. Oregon and parts of North Carolina have amended their anti-discrimination statute to include natural hairstyles as a protected characteristic. Further South, Texas now prohibits an employer from inquiring about an applicant’s criminal history on an initial job application for most positions.
Protections for whistleblowers have been expanded on both coasts.
New York has extended whistleblower protections to independent contractors and former employees in 2022. California enacted the “Silenced No More Act,” which expands the prohibition of disclosure provisions in settlement agreements from sexual harassment to include acts of workplace harassment or discrimination not based on sex, Sampath said. In other words, employees who accept a settlement will be able to share their experiences publicly. The law further restricts non-disparagement agreements as a condition of bonuses, raises, employment or as part of a severance plan.
Freedom of Expression
While there haven’t been any major legal changes to freedom of speech, workers are gaining more clarity about what they can and can’t discuss about work on social networking sites.
For instance, The National Labor Relations Act protects employees’ rights to discuss conditions of employment, such as safety and pay. However, you can’t complain about something in the workplace that doesn’t violate a law, Smithey warned. As the NLRB puts it, “personal gripes” are not protected.