Released January 17, 2023

2022 TOP STORIES: RETROSPECTIVE EDITION

Happy 2023 from your legal and compliance subject matter experts at EVERFI!

This issue of The Brief provides a retrospective of the top stories we covered in 2022, including laws enacted, policies adopted, and industry perspectives. Some articles have been edited and updated since their original publication in 2022.

Highlights 

2022 LAWS  ENACTED

  • S. President Joe Biden signed the “Speak Out Act,” which protects workers who’ve signed certain confidentiality agreements and later speak publicly about sexual harassment or assault they’ve experienced.
  • Chicago now mandates annual sexual harassment training with a two hour seat time for supervisors, one hour for non-supervisory employees, and one hour of annual bystander training for all employees.
  • Illinois, Louisiana, and Massachusettsall enacted versions of the CROWN (Create a Respectful and Open Workplace for Natural Hair) Act.
  • California has proposed a regulation that, if adopted, would mandate workplace violence prevention training for most employers.

2022 POLICY & INDUSTRY PERSPECTIVES 

  • The Equal Employment Opportunity Commission updated an employer-required poster that summarizes the laws against workplace discrimination and notifies employees of their rights under these laws. Employers who fail to display this new poster for employees, including remote workers, could be subject to hefty fines and other legal consequences.
  • A CNBCreport likens pay transparency to a tool for attracting and retaining talent in the era of the Great Resignation; the laws of New York City and the states of Colorado, California, Connecticut, Maryland, Nevada, Rhode Island, and Washington, which require disclosure of certain salary information in job postings or to applicants, reflect a movement toward greater transparency in pay.

Laws Enacted 

“Speak Out Act”  Signed into Law

U.S. President Joe Biden signed the “Speak Out Act,” which will prohibit various types of employee confidentiality agreements intended to prevent survivors of sexual assault or harassment from speaking publicly or making negative statements about the experience or the other party. It doesn’t matter whether the confidentiality agreement was signed before or after the law was enacted. No court will enforce it. The Act allows courts to enforce state laws that provide at least as much protection as the Act (but state courts could not enforce state laws that were less protective of the right to speak freely).

The Speak Out Act is one of many state and federal laws introduced and enacted in the wake of the #MeToo movement. It wasn’t long ago, for example, when H.R.4445 (the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act”) became law in March of 2022. Like the pending Speak Out Act, H.R.4455 restricts agreements related to sexual harassment disputes—specifically, H.R.4455 outlaws arbitration agreements when used to prevent someone from filing a lawsuit alleging sexual assault or sexual harassment.

The enactment of this bipartisan law is a strong reminder that lawmakers on both sides of the aisle remain concerned about workplace sexual harassment and are placing increasing pressure on employers to prevent and address it effectively. This legislation not only brings additional awareness to sexual harassment in workplaces; it underscores the critical need for training to prevent harassment from occurring in the first place (or handle it appropriately if it does).

To read this story as originally published and others like it, please see The Brief of December 6 and October 11, 2022.

New Chicago Training Mandate

Employers of employees in Chicago must provide sexual harassment prevention training as part of a larger obligation to prevent sexual harassment, have a written policy prohibiting sexual harassment, and conspicuously display specified posters informing employees that harassment is prohibited. In the same ordinance enacting the sexual harassment training mandate, the Windy City in the U.S. state of Illinois also inserted a requirement that all employees participate in one hour of annual bystander training.

The state of Illinois currently requires employers to provide annual sexual harassment prevention training to all employees, but the state law does not require either a particular a seat time or bystander training.

The new city training mandates apply to all employers of employees who work within the geographical boundaries of Chicago, and go into effect on July 1, 2022—making the initial training deadline July 1, 2023.

Employers that violate the new policy, posting, and training laws can face fines of up to $1,000 per day that a violation occurs. These fines are separate from and in addition to penalties that may be assessed under the state training mandate.

To read this story as originally published and others like it, please see The Brief of  June 1, 2022.

Three More States Enact the CROWN Act

Illinois, Louisiana, and Massachusetts all enacted versions of the CROWN (Create a Respectful and Open Workplace for Natural Hair) Act. Although definitions vary by state, the Act generally makes it a form of illegal race discrimination to discriminate against someone because their natural hair texture or protective hairstyle associated with their race or ethnicity.

If the CROWN Act sounds familiar, that’s because several states have already enacted similar laws, and the U.S. House of Representatives passed the CROWN Act (H.R.2116).

Updates: The federal CROWN Act did not make it out of the Senate in 2022. While Congress does not generally carry over bills from 2022 into 2023, lawmakers may re-introduce a similar bill in 2023 in response to a popular trend by more and more states to enact similar laws. Additionally, Pennsylvania regulations pending lawmakers’ approval would, among other things, interpret the state-law-protected category of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles, such as braids, locks and twists,” according to a blog post by the law firm Duane Morris.

To read this story as originally published and others like it, please see The Brief of August 3, 2022.

Golden State Might Mandate Training on Workplace Violence 

Cal/OSHA, the agency that regulates and enforces workplace safety in the U.S. state of California, has proposed a regulation to mandate workplace violence prevention training for employees of most employers (notable exceptions include healthcare, corrections, and law enforcement).

The proposed regulation would, if adopted, require employers to establish and provide training on an employer-specific “Workplace Violence Prevention Plan”  (how to obtain a copy, how to participate in the Plan’s development and implementation, and how to report workplace violence incidents or concerns to the employer without fear of reprisal). The regulation would also require employers to provide additional training upon identifying any new or previously unrecognized workplace violence hazard. Finally, the regulation would require employers that had a workplace violence incident in the past five years to provide additional training on job-specific workplace violence hazards, corrective measures implemented, and other employer- and worksite-specific topics related to the incident and preventing future hazards.

Employers would need to maintain certain records, including training dates, contents or a summary of the training sessions, names and qualifications of persons conducting the training, and names and job titles of all persons attending the training sessions. Employers would be required to maintain these records for a minimum of one year.

Cal/OSHA remains in the process of revising the proposed regulations, so the specifics described above may change. The agency accepted public comments through July 18, 2022. We will provide updates of proposed rule’s future progress.

Policy & Industry Perspectives 

EEOC Updates Mandated Poster

The U.S. federal government requires most employers to display a number of workers’ rights posters at a conspicuous physical location or in some cases online (or both). On Thursday, October 20, 2022, the Equal Employment Opportunity Commission (EEOC) updated the agency’s own employer-required poster that summarizes the laws against workplace discrimination and notifies employees of their rights under these laws.

The new poster, “Know Your Rights,” replaces the previous “EEO is the Law” poster. What’s new? The inclusion of a QR code employees can use to access online instructions for filing an EEOC charge, the addition of discrimination based on gender identity and sexual orientation to a list of types of illegal employment discrimination, and more user-friendly formatting and verbiage are among the main additions.

The agency says that employers must place the posters “in a conspicuous location in the workplace where notices to applicants and employees are customarily posted,” and encourages employers to “post the notice digitally on their web sites in a conspicuous location.” While online posting is generally not required, it is required if applicants and employees “do not visit the employer’s workplace on a regular basis” (e.g., for hybrid and remote workers).

While the EEOC did not set a deadline for displaying the poster, the agency can fine employers who fail to do so up to $612 for each separate offense. The law firm Littler Mendelson  explains that a “separate offense” means “per location,” and that courts have seen noncompliance as an act of “bad faith,” driving up the costs and consequences of litigation for employers. Rather than take these risks, smart employers will display the mandated poster ASAP.

To read this story as originally published and others like it, please see The Brief of  October 2, 2022. See archive link, top.

Pay Equity and Transparency Trends in Talent Acquisition

Pay equity is close kin to pay transparency—and younger workers are increasingly buying into both concepts. According to Payscale equity analyst Ruth Thomas, “pay transparency is more about having the structures and frameworks in place that ultimately help to reduce bias, and reducing bias helps you to close pay gaps,” as quoted by CNBC.

The same CNBC report likens pay transparency to a tool for attracting and retaining talent in the era of the Great Resignation, citing the findings of a Glassdoor survey that “63% of employees prefer to work at a company that discloses pay information over one that does not, … however, only 19% of employees said their company discloses salary ranges internally among all employees.”

The laws of certain U.S. states and localities are beginning to reflect this trend. For example, New York City and the state of Colorado require job postings to include salary information. States that require employers to disclose pay ranges to individual applicants include California, Connecticut, Maryland, Nevada, Rhode Island, and Washington. Most pay transparency laws also prohibit or limit employers from inquiring about or basing job decisions on an applicant’s salary history.

Update: Effective January 1, 2023, California’s SB 1162 now requires most employers to include pay scale information in job postings, in addition to providing the information to individual applicants who request it.

Disclaimer: this information is not intended as legal advice. Please consult with legal counsel to ensure your organization’s compliance with applicable legal requirements.