It’s that time of year we’re honored to have Amy Beckstead, employment attorney at Beckstead Terry Ditto PLLC, join us for a helpful, productive (and dare we say fun?) luncheon covering the latest employment law updates. The program has grown over the years to become a valuable way for HR professionals to receive credit hours through the HR Certification Institute® (HRCI®). This year, Beckstead brought along her partners and colleagues Jana Terry and Connie Ditto for an even deeper dive into employment law updates affecting Texas employers.
Here are 11 of the federal and state employment law updates and proposals they’re watching closely:
Federal Law Updates for Pregnant and Nursing Workers
PWFA: The Pregnant Workers Fairness Act (PWFA) was passed in late December 2022. The bipartisan legislation applies to employers with 15 or more employees and expands federal law regarding accommodating pregnant employees.
“This is a different standard than the Americans with Disabilities Act when it comes to accommodating pregnant workers,” says Beckstead. “It provides greater accommodations than even someone with a disability would have. I encourage HR folks to pull out their employee handbooks, look at their accommodation policy (if they have one) and consider any changes that could be made in light of this legislation.”
PUMP Act: A similar, cleverly acronymed bit of bipartisan legislation also passed in December called the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act. It expands workplace protections for lactating employees who need time and private space to express breast milk during work hours. It includes exempt and non-exempt employees (previously, the federal law only applied to non-exempt employees).
Other Federal Employment Law Updates and Proposals
Non-Competes: Early this year, the Federal Trade Commission (FTC) proposed to end the use of most non-compete agreements (both existing and future). Of course, such a law could affect employers to varying degrees if it passes. We write more about it here.
EEO-1 Reporting: The 2022 EEO-1 Component 1 data collection is tentatively scheduled to open in mid-July 2023. Reporting applies to all employers with 100+ employees and federal contractors with 50+ employees meeting certain criteria. The U.S. Equal Employment Opportunity Commission (EEOC) has proposed streamlining the process for large employers with multiple establishments.
Use of technology in hiring: As part of its strategic plan announced in January 2023, the EEOC is focusing on the use of artificial intelligence (AI) and other technology in hiring and employment processes. Especially, the EEOC will be looking for job advertisements that exclude or discourage certain demographic groups from applying, restrictive application processes or systems that are difficult for individuals with disabilities or other protected groups to access, and screening tools or requirements that disproportionately impact workers based on their protected status.
NDAs and Release Agreements: The EEOC also indicated it would focus on “overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements” as well as “unlawful, unenforceable, or otherwise improper mandatory arbitration provisions.” Based on this focus area, companies would be wise to review their existing agreements to see if tweaks should be made so as to not run afoul of this focus area by the EEOC. Some carve-outs are especially important, one being that nothing within the release prohibits the worker from filing a claim with the EEOC.
DOL Independent Contractor Changes: It’s that time in the presidential administration cycle when a new Independent Contractor Test is unveiled. If the currently proposed rule is adopted, it will replace the more employee-friendly test announced by the U.S. Department of Labor (DOL) in January 2021. The rule isn’t as stringent as California’s notorious ABC test, which, as Beckstead points out, is relatively challenging to meet as an independent contractor. That being said, Beckstead recommends HR departments consider putting a process in place to review and approve any “vendor” relationship to ensure they are genuinely business-to-business. She also suggests that working with a staffing company that employs individuals could alleviate many headaches when it comes to “try before you buy” employment arrangements that could result in misclassification.
NLBR Changes: The National Labor Relations Board (NLRB) is again scrutinizing “neutral” policies as it did during the Obama administration. In a nutshell, says Beckstead, if a neutral policy could be interpreted in such a way as to chill employee rights under the statute, then that could be a violation of rights. Overly broad wording like “insubordination” could cause problems with the NLRB, because speaking out against a manager, for instance, could be interpreted as insubordination. “This affects the same areas we were talking about six years ago: non-disclosure agreements, confidentiality during investigations, social media policies, no camera rules, discipline rules, and confidentiality in arbitration agreements,” she points out, adding, “ if you didn’t update your employee handbook six years ago with these issues in mind, do it now.”
Monitoring software: Like the EEOC, the NLRB is looking at technology rights this year. Specifically, the agency is targeting employer use of monitoring software and other technologies as Section 7 violations. “It’s a good idea to notify employees of the use of tracking software anyway, but now it’s an even better idea, given statements made by NLRB General Counsel about the possibility that the technology could be used to see who is conducting union activity,” Beckstead says.
State Law Highlights Outside Texas
California Consumer Privacy Act: Before scrolling past this one, it’s important to note that the California Consumer Privacy Act (CCPA) affects more than just California businesses and those who have California employees. Even businesses that don’t hold much data on California residents may be subject to the CCPA if they have worldwide annual gross revenues in excess of $25 million. Additionally, the types of data that are governed by the CCPA have expanded. A recent amendment to the law eliminated the exemption for employee and business contact data. A “consumer” is, really, any California citizen—it no longer matters whether the data seems “consumer”-related. So, if you have the personal information of a California business contact or employee, for example, any identifying information or data on that person must meet minimum standards for collecting, notifying, storing, and deleting. One reason that’s a big deal is that California is now the only state to give individuals a private right to sue. “If there’s a breach of unencrypted data, the person can bring a private right of action even if it’s just their username and password that are compromised—even if the account at issue contains only non-sensitive, innocuous information. And the thing is, the data breach plaintiffs don’t have to prove that they were actually damaged – damages are presumed, and the per-person amounts they can recover are in the statute,” explains Terry.
Employees from Out-of-State: Workations and destination workplaces are popular, but employers need to be careful about where their employees are working. Even working across state lines can be problematic. You may need to register to do business or to have an employee in that state, in addition to other sales nexus, corporate tax, wage-and-hour, and payroll/insurance considerations. And, if the worker is traveling overseas, you may suddenly realize you’re violating immigration and other laws.
We’re grateful for the tips and wisdom that Beckstead and her colleagues at Beckstead Terry Ditto PLLC continue to bring us. Every year the luncheon grows and brings in new HR folks in addition to our favorite attendees. To be in the know for the next luncheon presenting employment law updates, be sure to reach out to us and ask to be added to our communications. We also promote the event on LinkedIn, so be sure to follow us there.