This year saw significant progress in the form of slightly fewer positive COVID-19 cases and/or transmissions and more immunizations. As a result, many of you in the workforce have reopened your offices and invited employees, some enthusiastic and others reluctant, to return to personal work. While the return has restored some sense of normalcy, there are still issues that remain elusive and continue to require flexibility and careful attention to the myriad federal, state, and local labor law developments that impact your workplace. So, before we all sit down around the table and fill our plates and bellies to overflowing as we head into the 2022 holiday season, let us once again find some brightly shining blessings as we review the year. We are grateful to have weathered many of the impacts of the global COVID-19 pandemic, including supply chain disruptions and embarrassing failures from Zoom. We hope for economic stability and a highly satisfied, productive workforce. We are also grateful for the following legal things:
1. The great resignation seems to be slowing down
The US Bureau of Labor Statistics reported that starting in March 2021 and into 2022, the US churn rate reached a peak not seen since the Bureau began measuring job vacancies and turnover in December 2000. The phenomenon has been dubbed “Great Resignation” (coined by Anthony Klotz, a professor at Texas A&M University) and was marked by a dramatic increase in the national termination rate, which the Bureau defines as: (a) employee-initiated terminations (exclusively workers retiring or leaving the labor market and those simply moving to work elsewhere); (b) failure to report for work after being hired; or (c) 3 unauthorized absences from work if the employee was absent for more than seven consecutive days at the end of the month. forbes reported that by the end of 2021, 47.8 million people had quit their jobs for other positions, compared to 37.7 million people who quit in 2017.
Although the trend that started in 2021 has continued into 2022 and is expected to continue into 2023, the rate of job terminations appears to be slowing. The number of layoffs has declined month-on-month over the past six months. Nonetheless, numbers of workers are leaving their jobs — whether it’s due to the aftermath of the pandemic, accepting a better job or position, choosing a remote work opportunity or a hybrid schedule, higher pay and benefits, or simply seeking another life experience – is historically still very high. As a result, companies compete for the best and brightest talent and use creative ways to attract and retain a high-performing workforce.
Although Big Layoff is not strictly an employment law issue, several legal issues are often at the heart of poor employee retention. Many of the experts monitoring the trend and surveying sample populations across industries have advised employers looking to buck the trend to encourage connections through active engagement, adopt remote and/or hybrid work schedules, and allow employees appropriate time off to To prevent burnout and to strengthen oneself Ancillary benefits and maintenance of the corporate culture. You have some tools at hand to limit the impact of the Great Resignation on your workforce, and for that you should be thankful.
2. Employers are subject to fewer vaccination requirements and can make independent decisions about how to deal with the problem
Throughout 2021, your human resources departments likely suffered whiplash from all of the changing immunization regulations and mandates emanating from federal, state, and local governments. Some of you have developed policies that require employees to receive a COVID-19 vaccination, only for your state or local government to prohibit the vaccination requirements. Keeping up with the conflicting policies proved frustrating for you and your employees.
We are therefore grateful that you are now free to choose whether you require vaccinations or booster shots among your employees and applicants (taking into account, of course, provisions for disabilities or religious beliefs) as many of the federal regulations have either been repealed or are mandated and state and local guidelines followed. We all remember OSHA’s temporary emergency standard in late 2021, which would have required all businesses with more than 100 workers to implement a “weekly vaccination or testing program” with a few exceptions. In January 2022, the US Supreme Court was not so quick to say, ruling that the rule exceeded OSHA’s legislative authority. OSHA then withdrew the interim emergency standard in January 2022.
Similarly, in late 2021, President Biden issued an executive order requiring federal contractors and subcontractors to direct employees to be vaccinated against COVID-19. A legal battle ensued, and several attorneys general filed lawsuits alleging that the federal contractor’s vaccination mandate exceeded the president’s statutory authority over the procurement process. A federal district judge in Georgia issued an injunction preventing the federal government from enforcing the federal contractor’s vaccination mandate statewide. Although the injunction was later limited to the plaintiffs in that case, since the injunction the federal government has not taken any action or indicated its intention to enforce the federal contractor mandate, and indeed updated its guidance to direct government agencies to stop soliciting, soliciting or obtaining immunization status documentation and inquiring about the immunization status of contractors, employees and site visitors.
Much of the state and local guidance on these issues has followed federal leadership. So while you should definitely continue to protect workers and maintain a policy that allows sick workers to stay at home and tells them who to tell about illnesses, you now have the freedom to decide whether your policy includes mandatory vaccinations include or not. And that certainty and independence is definitely something to be thankful for.
3. Clarification of misclassification based on DOL’s proposed rule regarding independent contractor status versus employee
The DOL announced on October 11, 2022 the release of a proposed rule that would repeal the rule previously adopted by the Trump administration and replace it with a new analysis for determining the status of an employee or independent contractor under the FLSA. Under the proposed rule, the DOL intends to provide guidance that is more county case law-sensitive and useful for employers when determining an employee’s status vis-à-vis an independent contractor to determine the occurrence of employee misclassification reduce. The DOL identified six factors (that courts have been examining for decades) to consider in determining the parties’ relationship. Although the final rule may differ somewhat from the proposed published rule, you should still expect that the final rule will limit the circumstances in which an individual or entity may properly be classified as an independent contractor and you can get a head start on the review Your maintain practices to ensure compliance.
4. Safe havens for voluntary equal pay reviews
As more states introduce equal pay laws, we hear more discussions and receive more questions about these issues. For many of you looking to close the pay gap between men and women, a first step is to conduct a pay equity audit, as required by law, and immediately and seriously address any issues identified. In the past, companies may have been reluctant to voluntarily engage in fair wage audits because many felt that doing so would make demands or create problems. More recently, there has been a slight shift in perspective, either because the company wants to take advantage of the safe havens offered by some state laws, limit liability risks and ensure legal compliance, respond to stakeholder or employee requests even after payment.” “Gap” analysis or because you want to make sure you reward employees fairly based on values or retention. Whatever the reason, there are more safe havens available for conducting pay reviews, and we expect to see more of these provisions as the number of states enacting their own pay equity laws increases. California, New York, and New Jersey have each enacted comprehensive equal pay laws covering all protected classes of workers, but Rhode Island, Massachusetts, Colorado, and Oregon have each incorporated unique safe harbor provisions for employers to proactively assess their wages and tackle gaps. Massachusetts offers employers who conduct voluntary self-assessments potential relief from liability and penalties, while Rhode Island, Oregon and Colorado offer more limited relief from compensatory, punitive damages or penalties.
These safe havens, and those to come, can provide a powerful defense against liability and/or damages in pay equity disputes – and for that one is to be grateful. However, before initiating a formal audit, we recommend that you consult an attorney, obtain internal leadership approval, and be prepared to address any issues identified.
5. Updates to the EEOC mandatory disclosure requirements
Last month, the EEOC released an updated version of the Know Your Rights poster. The EEOC explained that the updated poster uses simple language and formatting to make it easier to read and understand, clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation and gender identity, adds a QR Code for digital access to the How to File a Discrimination Charge and provides information on equal pay discrimination for federal contractors.
6. All our readers!
We are so grateful to all our readers, followers and subscribers. We do this for each of you, and we’d love to hear from you what’s helpful, or if you share our articles with someone else in your network. Keep reading, liking, following and retweeting us! Now go eat, drink and be merry with your families!
Happy Thanksgiving from Bradley’s Insights into work and employment blog team!