NYC wage transparency law to go into effect in May 2022

As we previously reported, the New York City Council passed legislation in December 2021 requiring New York City employers to include a maximum and minimum salary in all job postings (for new jobs as well as internal promotions and transfer opportunities). Mayor Eric Adams returned the bill unsigned to the city council on January 14, 2022, which means the law will become effective in mid-May 2022. We anticipate that the city will issue guidance on the law closer to its effective date.

To ensure compliance with this new law, New York City employers should set salary ranges for all existing positions and be prepared to revise job postings accordingly. In addition, employers should begin reviewing any other related human resources documents (e.g., job descriptions and compensation policies) to ensure that any salary representations are consistent with the salary range set for a given position.

If you have any questions about how this new law impacts your job postings and application process, Reed Smith’s Labor & Employment attorneys are ready to speak with you.

Supreme Court blocks federal vaxx-or-test rule for large employers

The highest court in the land has, at long last, weighed in on the permissibility of the federal government’s November 2021 vaccine-or-test rule for large employers. Specifically, on January 13, 2022, the U.S. Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which had required that private employers with 100 or more U.S. employees adopt either (1) a mandatory vaccination policy or (2) a policy that allows employees to choose between vaccination and submission of weekly COVID tests (as we previously discussed here).

As a result, employers previously covered by the ETS will not have to comply – at least for now – with its requirements. Below we will discuss the Court’s ruling and, equally if not more importantly, what this means for U.S. employers.

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Violations of Colorado’s non-compete statute to become a criminal offense

On March 1, 2022, Colorado Senate Bill 21-271 (SB 21-271) goes into effect. This new law will make the violation of a number of statutes, including Colorado’s non-compete law, C.R.S. § 8-2-113, a criminal offense, specifically a class 2 misdemeanor. See Colorado Senate Bill 21-271, Section 81.

In Colorado, covenants not to compete that restrict the right of any person to receive compensation for the performance of skilled or unskilled labor are void unless one of the following four exceptions are met:

  1. Any contract for the purchase and sale of a business or the assets of a business
  2. Any contract for the protection of trade secrets
  3. Any contractual provision providing for recovery of the expense of educating and training an employee who was employed by the employer for less than two years
  4. Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel

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NYC passes landmark wage transparency bill

Even though 2022 is just underway, the NYC employment law landscape is already red hot. In mid-December, the city council passed a first-of-its-kind bill requiring Big Apple employers to include a maximum and minimum salary in all job postings, which includes new jobs as well as internal promotions and transfer opportunities. For employers that are not certain of the precise minimum and maximum salary for a particular role, the proposed law provides that “the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.”

Other than for temporary help firms, there are no exceptions to this proposed law. This means that virtually all NYC employers will need to comply. The bill is presently before the new mayor, Eric Adams, who has not signaled whether he will sign it. Nevertheless, the bill will become law – and take effect in April 2022 – if the mayor does not veto it by January 14.

We will continue to monitor this new development and update this post if and when the bill officially becomes law.

FAQs regarding OSHA’s workplace vaccine mandate

OSHA issued its Emergency Temporary Standard (ETS) in early November. A series of challenges quickly ensued, resulting in a stay of the ETS and a consolidation of the cases before the Sixth Circuit. On December 17, 2021, the Sixth Circuit lifted the stay. OSHA has indicated that it will delay enforcement of the ETS deadlines until January 10, 2022 (for non-testing requirements) and February 9, 2022 (for testing requirements). In the meantime, an emergency application has already been filed with the U.S. Supreme Court to prevent the rule from taking effect.

While the ETS remains subject to further challenges, employers are currently under January and February deadlines for compliance. Reed Smith’s Labor & Employment team has detailed some common FAQs about the ETS and employer obligations. If you have further questions, contact a member of the Labor & Employment team.

 

BREAKING: Federal Appeals Court reinstates OSHA vaccine ETS

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements and February 9, 2022 for testing requirements. As explained below, however, the “vaccinate or test” ETS is still subject to further challenge. Several petitions to stay the ETS have been filed with the U.S. Supreme Court.

How did we get here?

In early November, OSHA issued an ETS generally requiring that all private employers with 100 or more U.S. employees adopt either: (i) a mandatory vaccination policy; or (ii) a policy that permits employees to choose between becoming fully-vaccinated and submitting to weekly COVID-19 testing. The initial compliance deadline for the ETS as-drafted was December 6, 2021, with employers then having until January 4, 2022 to ensure that employees who were not fully vaccinated were tested for COVID-19 at least weekly. Prior posts concerning the ETS can be found here, here, and here.

Legal challenges to the ETS immediately ensued and, on November 12, the Fifth Circuit Court of Appeals issued a stay of the ETS pending judicial review. Shortly thereafter, on November 16, all of the many legal cases challenging the ETS were consolidated into one litigation to be heard by the Sixth Circuit Court of Appeals, chosen via lottery.

One week later, OSHA asked the Sixth Circuit to dissolve the Fifth Circuit’s stay. The agency simultaneously issued a statement on its website noting that, “while OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

On December 17, 2021 (just two days after denying requests for initial hearing en banc), the Sixth Circuit dissolved the stay placed on the ETS, which opened the door for OSHA to renew its plans to enforce the ETS in the coming year. Continue Reading

OSHA ETS: Sixth Circuit denies initial hearing en banc

As noted in our prior post regarding the Sixth Circuit handling the challenges to the OSHA Emergency Temporary Standard (the ETS), several of the parties targeting the OSHA ETS filed or joined various petitions requesting an initial hearing en banc. On December 15, 2021, the Sixth Circuit denied the various petitions for initial hearing en banc because there was not majority support of the active judges. It appears that it was a very close call – of the 16 active judges, eight were for en banc and eight were against it. As a result, the case will proceed before the typical three-judge panel. The three judges have been assigned; however, we do not know who they are at this point.

Judge Moore issued a concurring opinion recognizing the inefficiencies that go along with an en banc hearing. The concurrence noted that the case “require[s] focused consideration by a devoted panel,” and that an en banc hearing “would have strained the resources of the sixteen active judges.”

There are two dissenting opinions. Chief Judge Sutton’s dissent recognizes that, with respect to the initial hearing en banc, “[t]his is an extraordinary case, suitable for an extraordinary procedure.” But he also notes that the Sixth Circuit “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”    Continue Reading

NYC guidance addresses intersection of vaccine policies and workplace laws

In conjunction with New York City’s recent employer vaccine mandate, the New York City Commission on Human Rights (NYCCHR) issued enforcement guidance on the equitable implementation of COVID-19 vaccine requirements for employees, independent contractors, and interns.

Non-discriminatory application of vaccine policies

In its guidance, the NYCCHR underscored that employers must ensure their policies and practices treat all employees evenly, regardless of protected class status, when implementing vaccine requirements. Specifically, the guidance advises that employers should not (i) scrutinize proof of vaccination more closely when it is provided by employees of a particular race, national origin, or religion based on the perception that people in those groups are less likely to be vaccinated; (ii) require proof of vaccination only for older employees or employees with disabilities based on the belief that COVID-19 is more dangerous for them; or (iii) refuse to accept certain types of valid proof of vaccination, such as official immunization records from other countries or photographs of Centers for Disease Control and Prevention (CDC) vaccination cards.

The guidance reiterates that employers are prohibited from retaliating against employees because they requested an accommodation, opposed discrimination, or filed or assisted with a claim under the New York City Human Rights Law (NYCHRL).

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Everything you need to know about NYC’s employer vaccine mandate

As we previously reported, effective December 27, 2021, all private sector employers in New York City will be required to implement a mandatory vaccination policy for their workers. Today, guidance was issued clarifying this new mandate and related employer obligations. We have summarized what you need to know about this guidance below.

Clarification on the vaccination requirement

By December 27, employers must require all workers to provide proof that they have received at least one dose of a COVID-19 vaccine. (For the purposes of this mandate, a “worker” is a full- or part-time staff member, employer, employee, intern, volunteer, or contractor of a covered entity.) Employers will be required to verify and maintain a record of each worker’s proof of vaccination. In addition, by December 27, employers must complete an affirmation of compliance with this requirement and post it in a public place.

By February 10, 2022, employers must require that all workers provide proof that they have received a second dose of a COVID-19 vaccine (for Pfizer or Moderna vaccines). If such proof is not provided, the worker must be excluded from the workplace until they can provide such proof, unless an exception applies (as detailed below).

In addition, the guidance confirms the following critical points:

  • The mandate pertains to New York City workplaces and a worker’s residence is not relevant to its applicability.
  • Employers are not required to fire or discipline workers who refuse to comply with this mandate. Rather, the guidance indicates that “[a]s long as you keep the worker out of the workplace, it is your decision whether to discipline or fire such worker, or if the worker can contribute to your business while working remotely.”
  • Employers with multiple business locations must post the affirmation of compliance in a conspicuous location in each business location. However, vaccination and reasonable accommodation records may be stored in one central location, provided that each business location has contact information available to offer to City inspectors to put them in touch with the business representative who is centrally storing such records for the business.
  • Employers may adopt a vaccination policy that is stricter than the requirements of the New York City order, as long as it is not discriminatory or otherwise unlawful.
  • Coworking spaces must comply with this mandate vis-à-vis their renters.

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New York issues guidance on its latest mask mandate

As we previously reported, effective today, masks must be worn in New York State in “all indoor public places unless businesses or venues implement a vaccine requirement.” On Friday, December 10, 2021, the State issued guidance on the measure, clarifying the following key points:

  • Definition of indoor public placeAn indoor public place is defined as “any indoor space that is not a private residence.” This includes indoor entertainment venues, concert halls, indoor sports stadiums, recreational spaces, restaurants, office buildings, shopping centers, grocery stores, pharmacies, and houses of worship.
  • Offices must comply This requirement applies to office spaces. If an office does not require proof of vaccination as a condition of entry, masks must be worn at all times regardless of vaccination status except when eating, drinking, or alone in an enclosed room.
  • Inability to “mix and match” requirements – The guidance confirms that a business or venue must choose whether it will implement a vaccine requirement or a mask requirement for its patrons and employees, which must be followed in its entirety throughout the facility at all times each day.
  • Interplay with existing COVID-19 protocolsThe guidance confirms that employers must continue to comply with the HERO Act, as well as any locality-specific requirements (e.g., New York City’s “Key to NYC” program), in addition to complying with this latest mask mandate.

We will continue to monitor for new developments on this measure.

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