There has been a recent expansion of employee rights across the country in the areas of pay transparency, paid leave, noncompete agreements and required training. The explosion of remote work has changed the compliance landscape and requires employers to know not only the laws of the jurisdictions in which they operate, but also the laws in each state and locality where remote workers are located to ensure compliance in each triggered jurisdiction. These latest trends are identified below with takeaways for employers to consider.

Trending: Pay Transparency and Pay Reporting

Pay transparency requires disclosure of information regarding compensation. The required disclosures can include publication of salary information upon request by an applicant, as well as in the job posting itself. As of August 2023, eight states have pay transparency laws with more on the horizon. This does not include local jurisdictions which also are enacting pay transparency laws. Some jurisdictions, including California, Colorado, Connecticut, and Rhode Island require compliance even if employers have only one employee in the jurisdiction. These laws have teeth too. Violations can result in penalties of up to $10,000 per violation. Knowledge of these requirements is especially important for remote positions without geographic limitations since the potential applicant pool could reach into all jurisdictions. 

California, Illinois, Minnesota, and the District of Columbia currently require employers to submit pay data to the state that includes race, ethnicity, sex and pay information. Expect additional states to enact similar reporting requirements.

Takeaways: Employers should review compensation policies, job postings, and offer letters to ensure they comply with new laws. In addition, employers should conduct pay equity audits to minimize any negative effects arising from mandatory disclosures.

Trending: Outlawing Noncompete Agreements

Noncompete agreements are under attack on a national level with some states, including California, Minnesota, North Dakota, and Oklahoma issuing outright bans, while other states have limited the availability of restrictions on competition on the basis of professions and/or compensation. On a federal level, the Federal Trade Commission issued a proposal to prohibit noncompetition provisions as being unfair competition, while the National Labor Relations Board has taken the position that some noncompetition agreements violate the National Labor Relations Act.

Takeaways: Historically, it has been important to ensure that noncompete agreements are narrowly tailored, though jurisdictions differed on what was considered a lawful restraint on trade. Based on the current trends, employers using noncompete agreements should have the agreements carefully reviewed by counsel and ensure that use of the agreements is limited to higher level and higher compensated positions. In addition, employers should consider other ways to protect their proprietary information through the use of Commercial Protection Agreements which define and restrict the use of confidential information and contain narrowly tailored non-solicitation provisions, which may prove to be more enforceable than overboard noncompetition agreements, while protecting valuable rights.

Trending: Paid Family, Sick and Safe Leave Laws

In addition to the Family Medical Leave Act that requires employers with fifty or more employees to provide eligible employees with unpaid leave for up to twelve weeks, fourteen states and the District of Columbia had implemented paid family leave laws and many local jurisdictions have enacted their own requirements. The maximum duration of paid family leave typically ranges from four to twelve weeks. In addition, eighteen states and the District of Columbia have enacted state-wide paid sick leave laws. Several of those states allow paid leave to be taken for any reason – not just sick leave – and require carry over of unused sick leave. 

Takeaways: Employers should review their current paid time off policies to determine if existing policies are in compliance in all applicable jurisdictions, including expanding the allowed uses for such leave. Mandated sick leave may be broader than the sick leave offered; however, often times, there are ways to tailor existing policies to comply across all jurisdictions without a major overhaul of the policy.

Trending: Mandatory Sexual Harassment Training

Multiple jurisdictions mandate sexual harassment training for employees including California, Connecticut, Delaware, the District of Columbia (currently limited to tipped wage workers), Illinois, Maine, New York, Virginia (certain government contractors), and Washington (for certain categories of employees). Training requirements vary by jurisdiction based upon size of employer. For example, New York requires training for all employees working any portion of their time in New York, while Washington applies to employers in the covered areas having one or more employee. In addition, some jurisdictions require different training for supervisors.

Takeaways: Employers should ensure they are compliant with training requirements in each jurisdiction where they employ staff and expect additional states and locales to mandate training. Best practices dictate that harassment training should be conducted annually, regardless of jurisdiction. Employers who already conduct annual training should ensure that the training complies with the mandates for each applicable jurisdiction.

If you have questions, please contact Jennifer Jackman or another member of the Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.