 By Allegra Lawrence-Hardy and Lisa Haldar Unsurprisingly, our 2022 employer resolutions are generally all tied in some way to the COVID-19 pandemic -- vaccine protocols, remote work and even vacation policies. While these issues are not new, the landscape under which employers are addressing these issues has changed dramatically and continues to do so as the pandemic persists. Indeed, this time last year, vaccinations were not yet available for the general
public, and a different presidential policy was at hand. Employer vaccination policies were more of a theoretical discussion than a reality. One year later, however, vaccines are available for almost all the population, save the under-5 age group; President Joe Biden's administration is in office; mandatory vaccination policies are front and center; and as was expected from the Biden administration, more employee-friendly protections are on the horizon. Managing the constant changes requires employers' flexibility as they consider -- and in some cases, reconsider -- the following issues going into the new year. This article covers our top 10 employer resolutions for 2022. 1. For employers implementing vaccine mandates, treat accommodation requests consistently. We would be remiss not to start the resolutions touching on COVID-19 vaccine policies. All employers have been struggling with them as nationwide litigation continues to play out -- whether they are large private employers subject to the Occupational Safety and Health Administration's emergency temporary standard, which is back in effect, or federal contractor employers subject to Executive Order 14042, which has been stayed nationwide. For employers that are mandating the vaccine, either voluntarily or because they are required to by law, we will focus on measures those employers should be taking into 2022 to mitigate liability regarding vaccine mandate exemption or accommodation requests. First, employers should consider a separate accommodation form for requests relating to the vaccine, rather than relying on a standard accommodation request form. This includes separate sections for disability accommodations and religious accommodations. A specific form can allow an employer to more easily analyze any potential disparate impacts related to which employees are receiving exemptions. It also allows an employer to see whether the number of accommodation requests is so high that collectively allowing accommodations would pose an undue hardship or give rise to a direct threat of harm to others. That said, consistency in treatment of accommodation requests is critical. For example, say an employer receives a few accommodation requests initially and grants them, and then later receives a significant influx of accommodation requests and denies them because of an undue hardship. The employer's denials could be seen as discriminatory unless the employer can document the legitimate business reason for the disparate treatment. To mitigate liability in that particular situation, employers can revisit the initially granted exemptions -- and deny them based on documented changed circumstances causing an undue hardship. On the other hand, they might consider requiring all accommodation requests to be received by a certain date, so the collective impact is clearer before making decisions. Of course, even if an employer waits to decide, an employer will still need to individually consider later accommodation requests and make consistent decisions. As far as requesting documentation, the accommodation request form can indicate that an employer may ask for supporting documentation, but employers need to be careful when putting this practice into action. Again, consistency is critical. If the employer requests documentation for employee A, but not employee B, the employer should be sure it can articulate and document a legitimate business reason why employee A needed documentation and employee B did not. This is particularly important if employee A's request was ultimately denied. While requesting documentation to support a disability accommodation is standard and low-risk -- so long as the treatment of employees is consistent -- the documentation issue for religious accommodation requests is less clear. That is, the U.S. Equal Employment Opportunity Commission recommends employers assume an employee's request for religious accommodation is based on a sincerely held belief, practice or observance. The employer is justified in requesting supporting documentation only if the employer knows facts that provide an objective basis for questioning the religious nature or the sincerity of the employee's belief, practice or observance. Thus, employers would need to have obvious and documented facts justifying any request for documentation. Even then, the standard for employee documentation supporting a religious accommodation request is not high; it can be as simple as the employee's own explanation of their beliefs and practices, or that of their friend or family member. Accordingly, seeking documentation in support of religious accommodation requests imposes risk employers may want to avoid altogether. The better practice for religious accommodations may be asking employees to certify the truthfulness of the information they submit. Finally, the employer should engage in and document the interactive process -- if one is necessary. For example, some employers may not have the time or resources to deal with a vast number of accommodation requests. In that case, the employer may simply decide any request for an exemption from the vaccine mandate will be granted if the employer has already approved the requested accommodation -- such as mask wearing or weekly testing combined with mask wearing. They would then engage in the interactive process only where the employee wants a different accommodation or wants an exemption from the approved accommodations -- e.g., they cannot wear masks due to a disability. But generally, each request should be considered individually and well documented, particularly to explain any apparent differences in the treatment of accommodation requests. To help with consistency, if feasible for your company, one person -- or at least a small team of people -- should review, decide and track requests. 2. Consider the demands of your workforce in finally taking a permanent, yet flexible, position on remote work. This past year has brought numerous announcements from big companies regarding their remote workforce model going forward. And indeed, our resolutions for this past year recommended companies decide their long-term remote work philosophies and update their policies. Nevertheless, some employers may still be waiting to decide on their permanent workforce model until vaccines for all ages become available. But vaccinations for people 5 years and up are now available and vaccinations for those under 5 are expected in 2022. Thus, 2022 may be the year to finally implement policies governing whether, going forward, the company will remain fully remote, have optional remote work, have a hybrid remote arrangement, require everyone to return to work, or require only some employees to return to work. Which option a company chooses will depend on various factors, including the company's business needs and industry, what similar companies are doing, and the demands of its workforce. Notably, numerous surveys reflect employees' overwhelming desire to remain remote permanently,[1] asking why they should ever have to return to the office and citing the plethora of studies and surveys that generally reflect the success of remote work, including increased productivity.[2] While these surveys may vary in terms of accuracy, employers may at least want to consider surveying their own workforce before making a decision on a remote work model. Of course, an employer is not legally required to cater to the demands of its workforce. Still, it should at least consider the risks of ignoring its workers -- including decreased employee morale (and with it, productivity), the loss of valuable employees, and the inability to attract top talent. Employers also may face employee complaints of unfairness or even litigation. For example, some employers may have allowed employees to move during the pandemic to states where the employer has no physical office. If the employer allows the relocated employees to continue working remotely while requiring employees in the home state to return to the office in some capacity, the employer should be prepared for complaints of unfairness -- or even a lawsuit if a protected characteristic is involved. In September, the EEOC filed a lawsuit against ISS Facility Services Inc. for allegedly violating the Americans with Disabilities Act when it denied a plaintiff's remote work request.[3] According to the EEOC's complaint, the plaintiff in March 2020 requested to work from home two days a week as accommodation for her chronic obstructive lung disease and hypertension. Around the same time as her request, however, the company placed all its staff on rotating modified work schedules resulting in the plaintiff and other employees working from home four days a week. In June 2020, the company required all staff to return to the workplace five days a week, and the plaintiff made another accommodation request to work remotely two days a week because she was at high risk for contracting COVID-19. The company denied her request but allegedly allowed other employees in her position to continue working remotely. In September 2020, the company terminated the plaintiff for performance issues. While this lawsuit should play out more in 2022, employers transitioning away from remote work should take extra care before denying accommodation requests for continued remote work. Where the requesting employee has previously worked remotely or some employees are permitted to continue working remotely, the employer should be sure it can clearly articulate and document why ongoing remote work would now give rise to an undue burden before denying the request. Once employers decide on their remote work policy, their next consideration should be whether to formalize it. While an unwritten policy or practice may have been sufficient since the start of the pandemic and may continue to work into the future -- particularly for smaller employers with primarily exempt employees such as law firms -- implementing at least a baseline policy is always a good idea. And larger employers should consider a more detailed policy, including revisiting any remote work standards already in place. At a minimum, a remote work policy should address eligibility; expectations such as days and hours an employee should be available; technology and security; and restrictions against working off the clock. Policies other than those allowing across-the-board remote work should also recognize a level of flexibility where standards may apply temporarily in certain situations, particularly where remote work is an approved accommodation. Finally, employers should include language explaining that remote work is not a benefit -- although we discuss the possibility of a legal shift on this issue in part two. And it should be made clear that the remote work policy can be revoked at any time and for any reason. 3. Keep tabs on where your employees are working -- and on differing laws that might apply to those employees. Regardless of whether you take heed of resolution 2, employers, at a minimum, should know where their employees are working at all times to manage the various state laws that may apply to out-of-state employees. For example, though subject to some exception, the wage and hour laws that control are usually the state where the employee performs work. Accordingly, when a state's minimum wage changes, employers with employees in those states need to know. In addition to knowing state-level changes, some localities have their own minimum wage rates. For example, effective Jan. 1, 2022, Arizona will increase its minimum wage to $12.80, but Flagstaff has its own local minimum wage rate increasing to $15.50, also effective Jan. 1. As another example, starting on Jan. 1, Maryland will increase its minimum wage to $12.50 per hour for employers with 15 or more employees, and to $12.20 per hour for employers with 14 or fewer employees. However, in Montgomery County, Maryland, the minimum wage will increase on July 1 for employers with 50 or fewer employees -- but not employers with over 50 employees, except as to adjust for inflation. The same generally applies for overtime protections. For example, the California Supreme Court has held that California's overtime law applies to nonresident employees who performed full days and weeks of work in California.[4] That said, some states have issued case authority that may extend a state's wage and hour laws to employees working outside the resident state. For example, in Dow v. Casale, the Appeals Court of Massachusetts found in 2013 that the Massachusetts Wage Act applied to an employee who traveled throughout the country on behalf of a company headquartered in Massachusetts because no substantial relationship to any place but Massachusetts existed.[5] And in 1996 in Friedrich v. U.S. Computer Systems Inc., the U.S. District Court for the Eastern District of Pennsylvania concluded that the Pennsylvania Minimum Wage Act applied to work performed by employees outside of the state because they were deemed to be Pennsylvania-based employees. While they did not reside in Pennsylvania and seldom made appearances in the defendant's Pennsylvania office, they were hired by the defendant's Pennsylvania office, reported daily by telephone to that office, and received their assignments and pay checks from that office.[6] Wage and hour laws are not the only laws at issue for out-of-state employees. Laws concerning taxes, employee leave, anti-discrimination, business expenses, drug testing, background checks, restrictive covenants, and workers' compensation and unemployment benefits are all fair game as well. Ultimately, employers need to know where their employees are working and perform a state-by-state analysis to identify the applicable rules and risks. Where employees work in many states, implementing one companywide policy consistent with the most protective state in which any one employee is working may make the most sense. 4. Review timekeeping policies and practices and consider a wage and hour audit. Employers should also take 2022 to review their wage and hour policies and procedures to mitigate the risk of violations. We could see an increase in overtime lawsuits over the next few years given the dramatic work environment changes many nonexempt employees have experienced during the pandemic: remote access to work email and work systems 24 hours a day. Even where employees have set schedules, they may still respond to work emails after hours or during lunch breaks and fail to report that time, particularly where they work with exempt employees who are accustomed to working at all hours. Beyond a review, 2022 may be a good year to consider a wage and hour audit to determine if your company's changed workforce dynamic requires updated policies or has resulted in practices that do not comport with wage and hour laws. For example, a new timekeeping system may be appropriate so that remote nonexempt employees can accurately and easily track and verify their time. Accurate timekeeping is vital in defending an overtime lawsuit -- otherwise, employees may estimate their hours worked in calculating damages. Training is also key, along with a follow-up acknowledgment for employees to sign. Training and policies should:
Employers can and should explain that any employees working outside their scheduled hours without approval will be subject to discipline, but employers must also express that employees will always be paid for all time worked. It's also important to follow up and make sure employees are actually paid for all time worked. Employers should also ensure they have a clear procedure on how employees can obtain approval for working outside their scheduled hours. Finally, training should not be limited to nonexempt employees. Managers and exempt employees who work with nonexempt employees will need reminders that standard overtime rules apply to nonexempt staff, even though the work environment may have changed. 5. Reconsider your independent contractor and employee classifications. In addition to overtime pay and off-the-clock work issues, misclassification also continues to be a risk for employers despite the Trump administration's attempt to implement a more employer-friendly rule.[7] That rule, which the U.S. Department of Labor withdrew before it ever became effective, would have applied an "economic dependence" test under which a worker is an employee of an employer if that worker is economically dependent on the employer for work and is an independent contractor if that worker is in business for him or herself.[8] The DOL concluded that former President Donald Trump's administration rule was not "fully aligned with the [Fair Labor Standard Act's] text or purpose, or with decades of case law describing and applying the multifactor economic realities test."[9] Accordingly, the rule under the Biden administration continues to be the traditional totality of the circumstances test, with the significant factors being: The nature and degree of the employer's control over the work; the permanency of the worker's relationship with the employer; the degree of skill, initiative, and judgment required for the work; the worker's investment in equipment or materials necessary for the work; the worker's opportunity for profit or loss; whether the service rendered by the worker is an integral part of the employer's business; and the degree of independent business organization and operation.[10] Biden reportedly supports the even more employee-friendly ABC test, which, according to the U.S. Court of Appeals for the Ninth Circuit's June 2021 ruling in Lawson v. Grubhub Inc., requires employers to show all of the following for an individual to be considered an independent contractor: (A) that the worker is free from the control and direction of the hiring entity in performance of the work; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established business of the same nature as the work performed.[11] For now, however, the DOL indicated adoption of the ABC test was outside the scope of its rulemaking,[12] so the totality of the circumstances test remains applicable for most employers -- unless an employer has individuals working in states that have adopted the ABC test. For example, California, Connecticut, Massachusetts, Nebraska, New Jersey and Vermont have adopted the ABC test for wage and hour laws, as well as workers compensation and unemployment insurance laws. Employers not operating in ABC test states should still take some time to consider the classifications of their independent contractors and, particularly, individuals who may have been reclassified as independent contractors during the pandemic, since working arrangements may have changed. In some situations, such as employees wanting to work less or have more control over their schedule, employers have considered reclassifying the employees as independent contractors. However, paying an employee under an IRS Form 1099 and an IRS Form W-2 in the same tax year is a common trigger for a payroll tax audit. Employers considering such changes should ensure they can definitively point to a genuine change in the working relationship, confirm the totality of circumstances factors, and ensure they can articulate how the analysis has changed before and after the reclassification. 6. Mitigate an increased risk of discrimination claims by the remote workforce. Moving on from wage and hour issues, another challenge precipitated by the remote workforce is an increased risk of discrimination claims. This includes disparate impact and disparate treatment, particularly for employers offering anything but an all-remote policy -- e.g., hybrid or optional remote work policies, or remote work policies that apply to only certain categories of employees. For example, if an employer has an optional remote work policy, more women than men may choose to remain remote, or a higher proportion of older employees or disabled employees may likewise choose to remain remote. Or, where an employer's remote work policy allows only certain individuals to work from home, the policy may exclude a disproportionate number of employees of color. Historically, such demographic differences alone would not support a discrimination claim, because courts have generally found that the inability to telecommute is not an adverse employment action, and that telecommuting is not an employee benefit. But, at least some courts appear to have left open the possibility for a plaintiff to show otherwise,[13] and as more companies decide on their remote work policies, the issue may be less settled than it seems. Regardless of whether we see a shift in how courts view the inability to telecommute, demographic differences will become a problem when an employee's inability to work remotely or an employee's decision to remain remote has a negative impact, even an unintentional one, on their employment. For example, employees excluded from a remote work policy may quit or be terminated for refusing to return to the office, or remote workers may be excluded from impromptu meetings with managers -- meetings that may factor into raises, promotions or assignment upgrades. As another example, if an employer has an optional remote work policy, and the employees who choose to return to the office are predominantly male, such a situation could lead to a perceived boys' club atmosphere from which women feel excluded or treated differently. Accordingly, the first step in mitigating the increased risk of discrimination claims is tracking the baseline demographic makeup of the workforce working remotely as compared to the overall workforce. Where an employer sees demographic differences, it could consider making a change in the policy at that point to preemptively address the disparity. As another option, the employer could track additional data -- specifically, its employees' raises, promotions, bonuses, demotions and terminations, at least for the next year and ideally more -- and analyze the numbers to determine whether one group of employees is experiencing more of these actions or obtaining them more quickly. Not every employer situation will be so cut and dry. Many employers will have employees working remotely only in part, so employers in that situation can include the actual amount of time remote workers spend in the office in their data tracking. If, after additional data tracking, an employer sees a difference in employment actions between the groups, a policy change should be seriously considered unless an employer can provide a legitimate business reason for the difference. Finally, data cannot always provide the complete picture and will not catch issues such as work atmosphere, exclusion from meetings, or the types of assignments remote workers are receiving as compared to nonremote workers. To capture those issues, regular employee surveys and employee check-ins with remote workers and supervisors of remote workers, along with ongoing communication and training, will also be key. Employers with remote work policies should remind or otherwise communicate to employees that the decision to remain remote will not negatively affect their employment, and that the company embraces a culture of inclusion regardless of where employees are working. Employers should also remind remote workers that the employer's complaint procedures apply to them and ensure they know how to report complaints. Where these additional measures reveal complaints or issues about alleged unfairness involving the remote work policy, be sure to address them quickly and consider whether a change in the remote work policy is appropriate. 7. Confirm LGBTQI employee inclusion. Almost two years ago, the U.S. Supreme Court issued its ruling in Bostock v. Clayton County, finding any employment decision premised in whole or in part on an individual's sexual orientation and/or sexual identity implicates an individual's gender and, therefore, violates Title VII of the Civil Rights Act. This past year, on his first day in office, President Joe Biden issued an executive order aimed at fighting gender identity and sexual orientation discrimination. The order relied on Bostock's interpretation of Title VII to include sexual orientation and/or sexual identity protection in all other federal laws that prohibit sex discrimination.[14] And in October, Biden and Vice President Kamala Harris issued a National Strategy on Gender Equity and Equality that includes the LGBTQI community, explaining they will work to help implement policies and laws within the workplace by eliminating gender-based restrictions.[15] The I in the expanded acronym generally stands for intersex. In addition to the federal push on LGBTQI inclusion, several local and state laws have already been providing at least some levels of protection for LGBTQI employees. And as discussed in resolution 3 in part 1, employers are generally subject to the laws of the states (and localities) in which their employees are working. For example, 22 states and the District of Columbia have prohibitions against discrimination on the basis of sexual orientation or gender identity in employment; Wisconsin prohibits discrimination in employment based on sexual orientation. Locally, New York City has made it illegal since 2000 to discriminate against someone on the basis of gender identity or expression, including denying access to bathrooms. Given Bostock, the temperature of the current administration, and the increase in remote employees, 2022 may be the year for employers to address LGBTQI employee inclusion -- if they have not already. Companies should ensure they have updated policies to explicitly include both sexual orientation and nonbinary gender designations as protected categories and use inclusive pronouns and language in policies and employee communications. Employers might also consider allowing employees more flexibility on gender identification in applications and personnel records, such as allowing them to select "prefer not to say," offering and option to write in their gender, or providing a nonbinary option. For record-keeping purposes, the nonbinary option is the easiest but may also result in underreporting or over-reporting on the Equal Employment Opportunity Commission workforce data form known as EEO-1. The current recommendation from the EEOC is that employers can include additional information in the comment dialogue box on the electronic EEO-1 report portal to explain if any employees identify as nonbinary -- without providing too much specificity that risks an employee's anonymity. But, with the current administration, a third nonbinary option on EEO-1 forms may be forthcoming. Bigger changes, at least for employers returning their workforces to physical offices, could include gender-neutral restrooms for employees. Well before Bostock, the U.S. Occupational Safety and Health Administration issued guidance explaining to employers that transgender employees should be permitted to utilize restroom facilities consistent with their gender identities for their safety and health.[16] And, several states and localities also have all-gender or gender-neutral bathroom requirements when a single-user bathroom is at issue, such as California, Vermont and Illinois. While Bostock did not resolve the restroom issue, the EEOC issued guidance a year after the ruling, taking "the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee's gender identity."[17] Under the EEOC's current guidance at least, an employer would need to allow a transgender female to use a woman's restroom regardless of their sex assigned at birth or any particular sex reaffirmation procedure. These areas of inclusion are just some possibilities; others include dress codes and grooming standards, benefits programs, and employment practices liability insurance. Every employer's situation is unique, so you should develop measures that work best with your business needs and reflect the company's desire to eradicate discrimination of LGBTQI employees. 8. Revisit your vacation policy. Many employees are burned out, working more than ever and not taking vacations. And mental health continues to be a prominent issue, with 2021 seeing high-profile athletes, such as Simone Biles and Calvin Ridley, stepping away from their respective sports to focus on mental health. Employees are taking note. Surveys are showing they are increasingly seeking companies that support a work-life balance and a focus on employee mental health.[18] One way to signal your company's support of employee well-being is revamping your vacation policy. A revamped vacation policy can range from the more extreme, such as unlimited vacation, to much simpler additions. For example, an employer could consider allowing employees to work with each other to cover and trade shifts. Alternatively, an employer could have employees sign up to be on call during times when most employees are out on vacation and reward those employees with bonus compensation -- and their regular wages -- if they are called to work. As to the more extreme unlimited vacation model, it is generally viewed as a very attractive benefit for employees and also offers advantages to employers, including higher employee morale, employee retention, and attracting higher quality job applicants. And at least one study has found that an unlimited vacation policy causes employees to take fewer vacations.[19] To that end, employers who encourage vacation time might consider the required vacation option discussed below. These plans are often seen -- and work best -- with companies whose employees are primarily remote and project-based, rather than those that need to perform their duties at a worksite during certain hours. For example, recent reports show that law firms are offering this unlimited vacation benefit for their attorneys. So long as attorneys are meeting their billable hour requirements and completing their work, they can take as much vacation as they want. Although often subject to criticisms from the attorneys themselves, this policy can theoretically work well for law firms because most attorneys are prone to respond to or otherwise manage email even when on vacation.[20] Of course, an unlimited vacation policy comes with risks -- both practical and legal. Unlimited vacation could be abused by some employees, so companies should carefully consider their workforce culture before implementing an unlimited vacation policy. Such policies can also lead to staffing shortages. And where a company's employees have accrued vacation time under a traditional vacation policy, the company should either allow employees to use all that time before transitioning them, set a reasonable date by which the employees need to use their accrued hours before they are eliminated, or consider paying those employees out for the time they have accrued, which could be costly. As compared to a traditional vacation policy, unlimited vacation does not accrue and therefore never becomes deferred compensation to which employees are entitled when they leave employment. This theory may be tested, however, and in fact has been tested, in states where employers must pay employees for any accrued but unused vacation at termination. For example, in McPherson v. EF Intercultural Foundation Inc., the California Court of Appeal's Second Appellate District determined in 2020 that even though the employer purported to have an unlimited vacation policy, certain employees still accrued unused vacation days to which they were entitled at the time of termination under California Labor Code Section 227.3.[21] The court limited its ruling, however, to the facts of that case: Namely, the employer's unlimited vacation policy was only an informal one, not in any written policy or agreement, and never communicated to the affected employees. The court suggested specific elements that a written unlimited vacation policy should include to potentially avoid application of Section 227.3:
Under this model, for example, some employers will pay employees extra to go on vacation -- something tech company FullContact Inc. introduced in 2012[23] -- and others might require employees to take vacations at certain times. Some employers have taken this type of policy to the extreme: If they see a work email or call during an employee's vacation, the employee does not get paid. Of course, not paying an employee in that situation may run afoul of wage and hour laws, as well as state laws requiring payment of accrued vacation time. Accordingly, ensure any change to your vacation policy is not overshadowed by legal risk. 9. Stay abreast of potential increased federal protections for nursing mothers. Employers should already know that state and federal protections exist for nursing mothers. On the state side, for example, Georgia employers with more than one employee -- unless subject to the undue hardship exception -- must provide reasonable, paid break periods to nursing mothers to express breast milk. Additionally, employees must be able to express breast milk in a location that offers privacy, other than a restroom.[24] Moreover, Georgia employers cannot require an employee paid on a salary basis to use paid leave during the break time or have their salary reduced as a result of taking the break to express breast milk.[25] Employers in New York must provide reasonable, but not paid, break time -- at least once every three hours and at least 20 minutes for each break and more time if needed -- for expressing breast milk for up to three years after the birth of a child.[26] New York employers also have to make reasonable efforts to provide a room or area in close proximity to the work area where employees can express breast milk in privacy.[27] In addition, some localities, like New York City and San Francisco, have their own rules. For example, in New York City, employers with at least four employees must provide lactation rooms and a refrigerator in reasonable proximity to the employee's work area.[28] According to the NYC Administrative Code, the room must be a sanitary and private place, other than a restroom, "that includes at minimum an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water." Employers in New York City are also required to develop, implement and distribute to new employees upon hiring a written policy regarding the provision of a lactation room.[29] On the federal side, the Affordable Care Act amended the Fair Labor Standards Act in 2010 to require employers provide nursing mothers with reasonable break time and private space for expressing breast milk for one year after a child's birth. The law does not apply to any employees exempt from the overtime requirements of the FLSA, however, with the House Committee on Education and Labor reporting that 8.65 million women are currently excluded from nursing mother protections.[30] The Providing Urgent Maternal Protections, or PUMP, for Nursing Mothers Act, which the U.S. House of Representatives passed in October, seeks to expand breastfeeding protections to those nearly 9 million exempt employees. Like the current federal law, employers would still not be required to pay employees for breastfeeding break time unless required by a state or local law, and the location for the breastfeeding break must not be a bathroom and be shielded from view and free from intrusion from coworkers and the public.[31] The PUMP Act also retains the same exception in the current law -- employers with less than 50 employees may exempt themselves from the requirements by showing the requirements of the act "would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business."[32] Although the PUMP Act must still be approved by the U.S. Senate and signed by the president, employers may consider increasing their protections to nursing mothers now rather than continuously tracking the bill's progress, particularly to the extent the employer already has employees working in states with protections. 10. Prepare to address employee political activity. This next year is another election year, and with it, more employer questions about disciplining employees for political activity could arise. The answer to those questions, of course, has not changed for 2022: It always depends on the circumstances. For example, employees at private workplaces generally have no constitutional rights protecting their political expression as compared to public employees, but this rule is subject to the particular state in which the employee works. Employers in Connecticut cannot discipline employees for exercising any rights guaranteed by the First Amendment.[33] California law prohibits employers from taking any action against employees for engaging or participating in politics or tending to control or direct the political activities or affiliations of employees.[34] California employees can also bring a claim for loss of wages as the result of a demotion, suspension or discharge for lawful off-duty conduct, such as political activity.[35] In addition to assessing the applicable state law, a particular employee's expression should be considered on a case-by-case basis to evaluate questions like whether the expression is objectively offensive, whether the expression constitutes harassment of a coworker, or whether the employee is using work time to engage in political expression. Where the answer to any of these questions is yes, discipline will often be appropriate even in states with specific protections. To prepare for these types of issues, employers should consider implementing a new policy, or even sending out an informal companywide communication, reflecting the company's support of a diverse workforce and the expression of political activity while reminding employees that certain policies, such as anti-harassment, anti-violence, anti-bullying and social media, still apply. Indeed, employee political activity is often interrelated with social media. For example, an employee's personal social media page might represent their affiliation with the company and include a political message that can be connected with the company. Accordingly, another avenue of preparation includes updating a company's social media policy to require employees include a disclaimer on their personal social media pages when they can be tied to the company. The disclosure might read: My opinions do not reflect those of my employer. Conclusion Given the changes between this year and last, we have no doubt the issues will continue to evolve so that by 2023, we will be looking at an even newer new normal. However, employers need not look too far ahead and for now, should focus on their 2022 employer resolutions with an attitude of flexibility and a willingness to adapt as more changes emerge. _________________________________________________________ Allegra Lawrence-Hardy is a founding partner and Lisa Haldar is a senior attorney at Lawrence & Bundy LLC. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] For example, a survey conducted by FlexJobs between July and August 2021 reported that "58% of respondents would 'absolutely look for a new job if they cannot continue remote work.'" Emily Courtney, Remote Work Statistics: Navigating the New Normal, FlexJobs, https://www.flexjobs.com/blog/post/remote-work-statistics/ (last visited Nov. 15, 2021). Another survey by Growmotely of "entrepreneurs and professionals" reported only 3% wanted to work full time at a physical office after the pandemic, and 61% preferring a fully remote environment. The Future of Work Is Here, and It's Remote, Growmotely, https://www.growmotely.com/future-of-work (last visited Nov. 15, 2021). [2] Nicholas Bloom, How Working From Home Works Out, Stan. Inst. for Econ. Pol'y Rsch. (June 2020), https://siepr.stanford.edu/research/publications/how-working-home-works-out; PwC's Remote Work Survey, PwC (Jan. 12, 2021), https://www.pwc.com/us/en/library/covid-19/us-remote-work-survey.html; The Conference Board, Survey: Amid Higher Productivity, 43 Percent of US Workers Question Need to Return to Workplace (July 1, 2021), https://conference-board.org/press/Return-to-Work-Survey-June2021; Rebecca Stropoli, Are We Really More Productive Working From Home?, Chi. Booth Rev. (Aug. 18, 2021), https://review.chicagobooth.edu/economics/2021/article/are-we-really-more-productive-working-home. [3] Complaint, EEOC v. ISS Facility Servs., Inc., No. 1:21-cv-3708-SCJ-RDC (N.D. Ga. Sept. 7, 2021). The company filed its answer on November 22, 2021. [4] Sullivan v. Oracle Corp., 254 P.3d 237, 243 (Cal. 2011). [5] Dow v. Casale, 989 N.E.2d 909, 914 (Mass. App. Ct. 2013). [6] Friedrich v. U.S. Comput. Sys., Inc., No. CIV. A. 90-1615, 1996 WL 32888, at *8 (E.D. Pa. Jan. 22, 1996). [7] Independent Contractor Status Under the Fair Labor Standards Act (FLSA): Withdrawal, 86 Fed. Reg. 24303 (May 6, 2021). [8] Id. at 24306. [9] Id. at 24307. [10] Id. [11] Lawson v. Grubhub, Inc., 13 F.4th 908, 912 (9th Cir. 2021). [12] Independent Contractor Status, supra note 7. [13] Compare Williams v. PMA Co's., No. 5:19-CV-0557 (GTS/ATB), 2021 WL 4477287, at *11 (N.D.N.Y. Sept. 30, 2021) ("[T]he denial of an ability to work remotely was not an adverse action because it did not change the terms and conditions of his employment or deny him any benefit."), and Allbritain v. Tex. Dep't of Ins., No. A-12-CA-431-SS, 2014 WL 272223, at *4 (W.D. Tex. Jan. 23, 2014) ("Federal courts have repeatedly held denying an employee's request to telecommute is not an 'adverse employment action' for the purpose of Title VII." (citation omitted)), with Mompoint v. Dep't of Elementary & Secondary Educ., No. 18-cv-11094-DJC, 2019 WL 1921631, at *4 (D. Mass. Apr. 30, 2019) ("As to the telecommuting policy, even if the inability to telecommute were considered an adverse employment action, Mompoint acknowledges that in February 2015, once she gave Peske a doctor's note, she was permitted to telecommute for medical reasons. Although Mompoint alleges that she was prohibited from telecommuting in June 2015, she does not allege that she provided a doctor's note at that time or that any white employees were permitted to telecommute without providing a doctor's note." (citation omitted)), and Beckham v. Nat'l R.R. Passenger Corp., 736 F. Supp. 2d 130, 149 (D.D.C. 2010) ("Being denied the ability to work from home on, at most, three occasions is a minor annoyance, not an adverse action." (emphasis added)). [14] Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021). [15] The White House, National Strategy on Gender Equity & Equality 12-13 (2021), https://www.whitehouse.gov/wp-content/uploads/2021/10/National-Strategy-on-Gender-Equity-and-Equality.pdf. [16] OSHA, A Guide to Restroom Access for Transgender Workers (June 2015), https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf. [17] EEOC, Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity (June 15, 2021), https://www.eeoc.gov/laws/guidance/protections-against-employment-discrimination-based-sexual-orientation-or-gender#_ednref6. [18] Chris Kolmar, 21 Important Work-Life Balance Statistics [2021], Zippia (Nov. 1, 2021), https://www.zippia.com/advice/work-life-balance-statistics/; Yancy Berns, Best Work-Life Balance 2021, Comparably (Oct. 6, 2021), https://www.comparably.com/news/best-work-life-balance-2021/. [19] Namely, Inc., HR Mythbusters: The Reality of Work at Mid-Market Companies Nationwide 21-23 (2017), https://cdn2.hubspot.net/hubfs/228948/Namely%20HR%20Mythbusters%20Report.pdf. [20] Gayle Cinquegrani, Lawyers Need Vacations. Case Closed., Bloomberg Law (May 25, 2016, 6:16 AM), https://news.bloomberglaw.com/business-and-practice/lawyers-need-vacations-case-closed/ (estimating approximately forty percent of associates at large firms have unlimited vacation days); Joe Patrice, Law Firm Steals Future Unused Vacation Pay By *Generously* Offering Unlimited Vacation!!!, Above the Law (Dec. 8, 2021, 12:33 PM), https://abovethelaw.com/2021/12/law-firm-steals-unused-vacation-pay-by-generously-offering-unlimited-vacation/. [21] McPherson v. EF Intercultural Found., Inc., 47 Cal. App. 5th 243, 267-68 (2020); Cal. Lab. Code § 227.3. [22] Id. at 268-69. Going back to our discussion in resolution number 3 about state laws applying to remote workers, however, the court determined that California Labor Code §227.3, unlike California's wage and hour laws, did not apply to work a different employee performed in California because she performed most of her work outside of California (she spent about twelve to thirteen weeks a year working in California). Id. at 274- 75. [23] Paid Vacation? That's Not Cool. You Know What's Cool? Paid, PAID Vacation, FullContact (July 10, 2012), https://www.fullcontact.com/blog/2012/07/10/paid-paid-vacation-2/. [24] O.C.G.A. § 34-1-6. [25] Id. [26] N.Y. Lab. Law § 206-c (McKinney); see also N.Y. State Dep't of Labor, Fact Sheet: Your Right As a Nursing Mother to Pump Breask Milk at Work (2021), https://dol.ny.gov/system/files/documents/2021/03/fact- sheet-your-right-as-a-nursing-mother-to-pump-breast-milk-at-work-p708.pdf. [27] Id. [28] NYC Administrative Code §§ 8-102, 8-107(22). [29] Id. § 8-107(22). [30] H.R. Rep. No. 117-102 (2021). [31] H.R. 3110, 117th Cong. § 18D (2021). [32] Id. [33] Conn. Gen. Stat. § 31-51q. [34] Cal. Lab. Code § 1101 (West). [35] Cal. Lab. Code § 96(k) (West). Comments are closed.
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