Labor & Employment Law Update

The long-awaited SECURE 2.0 Act of 2022 (“SECURE 2.0”), containing sweeping changes to workplace retirement plans, was signed into law on December 29, 2022 as part of the Consolidated Appropriations Act of 2023. SECURE 2.0 builds on the revisions to retirement plan rules enacted by the Setting Every Community Up for Retirement Enhancement Act of 2019 (the original SECURE Act), and makes even more aggressive changes. 

While we continue to absorb the impact of the National Labor Relations Board’s recent expansion of its authority to include awards for consequential damages in unfair labor practice (ULP) cases, there are  other significant pro-union decisions and directives that need to be on your radar. 

Non-compete agreements – contract clauses, usually in employment agreements, that ban an employee from working in a certain industry, or in a certain geographic area for a period of time following termination of employment – have been under increasing scrutiny by state legislatures over the last several years. Many states, including Illinois, have banned their use for workers below certain income thresholds, for example. 

On December 21, 2022, New York Governor Kathy Hochul signed into law a statewide pay transparency bill, Senate Bill S9427A, that will take effect September 17, 2023. New York’s Pay Transparency Law requires employers with four or more employees to disclose compensation or range of compensation to applicants and employees when posting any opportunities for hire, promotion, or transfer. The law defines “range of compensation” as the minimum and maximum annual salary or hourly range of compensation for a job, promotion, or transfer opportunity that the employer in good faith believes to be accurate at the time of the positing of an advertisement.

As labor unions continue to target banks and credit unions – employers that, as mentioned in our previous blog, unions historically avoided – employers in the financial industry must be aware of labor law developments.  It is critical that employers know and understand the rules of engagement in traditional labor law --- particularly as the law develops under the current administration.  What now will trigger an unfair labor practice charge or the ire of the National Labor Relations Board (NLRB) is much different than a few years ago.  Additionally, the rules and procedures surrounding a union organizing drive is changing dramatically and evolving into a very pro-union process.

On November 21, 2022, New York State Governor Kathy Hochul signed Assembly Bill 8092B, amending the state's labor law to clarify that employers cannot retaliate against employees for “any legally protected absence pursuant to federal, local or state law.” 

To strengthen enforcement and improve compliance with workplace safety standards and reduce worker injuries and illnesses, the U.S. Department of Labor is expanding the criteria for placement in the Occupational Safety and Health Administration’s Severe Violator Enforcement Program (“SVEP”).

In another pro-union decision, the National Labor Relations Board (“NLRB” or “Board”) recently held that employers are responsible for all “direct or foreseeable pecuniary harms” sustained by employees as a result of an unfair labor practice.  While such remedies have been ordered sparingly in the past on a case-by-case basis, the Board now mandates such an award in every successful unfair labor practice charge.

A 2019 study conducted by the U.S. Department of labor found that food production workers in Illinois and Ohio had significantly higher injury rates than the overall rates for manufacturers in the private sector. To try and correct this trend, OSHA started the Local Emphasis Program focused on more than 1,400 manufacturing facilities in both Illinois and Ohio.

With the holidays upon us, companies are assessing year-end to-do’s and considering what 2023 will bring. For companies employing California residents, compliance with the new California Privacy Rights Act (CPRA) should be at the top of their list. Indeed, to date, companies that employed California residents had a reprieve from the consumer-facing rules and requirements of the California Consumer Privacy Act (CCPA). The CCPA, which is, essentially, a data privacy “bill of rights” for Californians, even impacted many companies based outside of California but only as to their consumer-side relationships.