Wage and Hour Division Administrator Nominee Advances in the Senate

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Today, the Senate Health, Labor, and Pensions Committee voted 13-9 to advance the nomination of Jessica Looman, who has been serving as the top official of the Wage and Hour Division of the U.S. Department of Labor, to be the permanent administrator of the agency. Looman’s nomination has been held in the committee for several months and likely will now progress to a full vote in the Senate before the current Congressional term expires.

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You are Being Monitored for Electronic Surveillance and Automated Management Practices, Says the NLRB

On October 31, 2022, the National Labor Relation Board’s (“NLRB”) General Counsel, Jennifer Abruzzo issued a potentially spooky memorandum for employers regarding electronic surveillance and automated management. The memo sets out to restrict the “omnipresent surveillance” of employees in the advent of work at home culture. Ms. Abruzzo specifically identifies GPS tracking, video surveillance, and key loggers as potential concerns. The memo also equates automated managing software and artificial intelligence (“AI”) to “surveillance” software.

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For California Electronic and Computing Services Companies, New Processes Required Before Responding to Warrants, Subpoenas and Other Information Requests

In response to the Dobbs decisions, Califoria enacted legislation intended to enhance data privacy and block record requests by other states concerning alleged abortion-related offenses that are lawful in California. In September, California launched a website – abortion.ca.gov – dedicated to abortion access information. The website includes a disclaimer: “California protects your privacy.”

On September 27, California Governor Gavin Newsom signed unique legislation that seeks to protect abortion data privacy by preventing out-of-state law enforcement officers from executing search warrants on California electronic communication and computing services companies for the purpose of investigating another state’s abortion-related offenses. For California-incorporated or -headquartered communications or computer services companies, Assembly Bill 1242 (AB 1242) significantly changes the process for responding to out-of-state law enforcement requests and lawful court orders for records of activity, such as cellphone location or internet usage, and wiretap requests. AB 1242 includes a series of laws with the sole purpose of protecting the privacy of abortion providers and seekers in California.

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Governor Newsom Imposes Greater Pay Transparency Requirements on California Employers

On Sept. 27, Gov. Gavin Newsom signed into law Senate Bill (SB) 1162. As previously reported, SB 1162 significantly expands pay reporting and disclosure requirements for most California employers.

Effective Jan. 1, 2023, California employers must disclose pay ranges in job postings and make pay scale information available to current employees upon reasonable request. The law also extends the California Labor Code’s retention rules to require employers to maintain records of the job title and wage history for each employee for the duration of the employee’s employment and for three years following separation.

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Dobbs on Demand Podcast Series

In response to the recent Dobbs v. Jackson Women’s Health Organization decision in which the Supreme Court overturned Roe v. Wade, BakerHostetler partners have developed a podcast series aimed at providing guidance and addressing questions pertaining to the new legal and business considerations that should be made in this new landscape.

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Washington Employers: Take Caution Before Asking Your Employees To Sign Confidentiality and Nondisparagement Agreements

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For years, employers have insisted that confidentiality and nondisparagement agreements be included in settlement agreements in a variety of employment disputes, such as discrimination, harassment, wage and hour, and others.

The reasoning is straightforward enough: Companies want to protect their reputations, and confidentiality/nondisparagement provisions in settlement agreements have been a way to ensure that unhappy employees do not continue to make disparaging statements about their current or former employers after the parties’ disputes have resolved. However, these provisions became particularly controversial in the wake of the #metoo era, when employees alleged these agreements acted as a manner of silencing employees from disclosing gender discrimination and harassment.

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Not Your Godfather’s Smackdown: Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

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In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released. It’s a two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub.

On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor Relations Board (NLRB) for ignoring the Circuit Court’s earlier directive about the joint employer test. Believe it or not, this case is another chapter in the ongoing Browning-Ferris saga.

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FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair practices that harm workers.” The NLRB Press Release was a bit less definitive, describing it as “a partnership between the agencies that will promote fair competition and advance workers’ rights.” And this week, the Department of Justice (DOJ) Antitrust Division announced its own MOU with the NLRB.

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New DC Law Protects Marijuana Users from Adverse Employment Actions

Dry and trimmed cannabis buds, stored in a glass jars. Medical cannabis

Washington, D.C., employers will soon be prohibited from disciplining, terminating or refusing to hire individuals based on marijuana use or a positive marijuana test. The Cannabis Employment Protections Amendment Act of 2022 will take effect on July 13, 2023, or shortly thereafter.

The law, however, contains a few exceptions. Employers will not be in violation if their actions are required by federal statute, federal regulations, or a federal contract or funding agreement, or if the employee used or possessed marijuana at work or while performing work-related duties. The law also does not cover employees in “safety-sensitive” positions, such as police, security, guards, construction workers, operators of heavy machinery, healthcare workers, caretakers, or gas and power company employees.

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NYS Employers: Updated Sexual Harassment Postings and Policies Are Required!

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Employers should be aware that New York state has passed a law that requires employers to reference an established hotline in any material – including handbooks, policies and workplace postings – they post or provide to employees regarding sexual harassment.

The hotline is intended to enable individuals experiencing workplace harassment to receive pro bono counsel and assistance. Just this week, the New York State Division of Human Rights (DHR) established this toll-free, confidential hotline. Pro bono attorneys will be available to staff the hotline Monday through Friday, 9 a.m. to 5 p.m.

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