Top 10 Employer Resolutions for 2023

Employers looking for a respite from the drastic workplace changes of the past few years did not find it in 2022. The year saw multiple judicial, legislative, and executive actions of pivotal and historical proportions, including the Supreme Court’s decision regarding abortion rights and hearings on two related cases regarding affirmative action; and laws passed at the local, state, and federal levels affecting sensitive topics, such as marijuana usage, gun control, pay transparency, and sexual assault and sexual harassment.

This wave of change has placed an even greater responsibility on employers to reevaluate existing protocols, examine fundamental aspects of culture and employee relations, and update or create new policies and guidelines to ensure continued compliance with the law.
 
In 2023, we expect a Supreme Court decision on affirmative action that may require employers to reevaluate their approach to seemingly well-settled issues. Additionally, we can expect to see a variety of legislation specifically aimed at employers, as well as broad legislation with an indirect effect on employers. Thus, employers should stay abreast of changes affecting their workplace and be prepared to devote significant time to adapting to the ever-changing landscape.
 
Employers should resolve to be ready for a turbulent 2023. 
 
1. Review changes to healthcare plans to ensure compliance with state and federal laws.  

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, [1]  many states implemented laws banning abortion. In response, many employers began offering benefits aimed at reducing the effects of the decision, including paid time off to access reproductive care and expanded employer-sponsored group healthcare plans to cover travel for reproductive services.
 
Employers considering similar policies should be aware of the risks associated with supporting abortion-related care.
 
For example, the laws of several states suggest that employers may face civil liability if they cover abortion-related travel costs. Specifically, the Texas Heartbeat Act allows civil actions to be brought against any person who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.”[2] Oklahoma House Bill 4327 contains a similar provision.
 
In assessing potential civil liability, employers who have expanded reproductive health benefits provided through their employer-sponsored healthcare plans should review their plans to determine whether they are governed by ERISA. ERISA plans may reduce the risks posed by laws such as those passed in Texas and Oklahoma because ERISA preempts “any and all state laws insofar as they may now or hereafter relate to” any ERISA benefit plan,[3] which could include civil suits against employers for aiding and abetting.
 
Also, employers should be aware that their policies may result in discrimination claims. U.S. Equal Employment Opportunity Commission (EEOC) Commissioner Andrea Lucus has reportedly initiated discrimination investigations against at least three companies that offer to cover employees’ abortion-related travel alleging the employers discriminated against pregnant and disabled workers by not offering equivalent benefits for those workers’ specialized medical needs.[4]
 
To reduce the risk of similar discrimination claims, employers should ensure any benefits they provide are not limited to abortion care. For example, some employers have implemented provisions allowing their employees to receive benefits for any medical procedure or treatment that is “unavailable locally.”
 
 
2. Implement programs to ensure workplace diversity, given anticipated changes to affirmative action law.  

On October 31, 2022, the Supreme Court heard two cases that may affect whether and how colleges, universities, and even companies use affirmative action plans in their selection processes. As we prepare for a decision in the Students for Fair Admissions cases, employers should consider implementing or strengthening options for attracting candidates from under-represented backgrounds.
 
As the law currently stands, educational institutions may consider race or ethnicity as a factor when making admissions decisions, while most employers are prohibited from considering race or ethnicity when making employment decisions.
 
 
Yet, over 80 major companies signed onto an amicus brief supporting affirmative action in the Students for Fair Admissions cases.[5] The companies were not arguing they should be allowed to rely on affirmative action. Instead, they argued prohibiting universities from considering race would undermine companies’ efforts to build diverse workforces because companies “depend on universities to recruit, admit, and train highly qualified, racially and ethnically diverse students” who later become employees and business leaders.
 
While the implications for employers are uncertain, based on the makeup of the Supreme Court as well as some of the questions asked during oral arguments (i.e., when will the goal of educational diversity be achieved), many are speculating that soon affirmative action will no longer be permissible.
 
Thus, employers should begin to develop programs aimed at attracting and retaining diverse candidates.
 
Over the past few years, many corporations have established partnerships with Historically Black Colleges and Universities (HBCUs) as a pipeline for recruiting diverse candidates. With HBCUs accounting for 50% of Black lawyers, 40% of Black engineers, and 12.5% of Black CEOs, turning to them to recruit candidates from under-represented backgrounds may be a viable option for more employers.[6]
 
When turning to HBCUs or similar institutions for recruiting, employers should take purposeful and calculated steps. For example, employers should consider developing mentorship programs that match employees with students; hosting events on campus with guest lecturers from the company; offering internships and training opportunities; and investing in technology and other resources to ensure students have exposure to the tools and systems used within the company before they are hired. Additionally, employers should identify employees from all backgrounds who represent their company and its values to attend college and university career fairs.
 
Additionally, employers should continue to consider options that allow for a flexible work environment, such as hybrid positions. Through the pandemic, companies saw how hybrid work environments can benefit their workforce, including an increased ability to recruit and retain diverse talent.
 
According to a 2022 report by McKinsey and Company, 71% of HR leaders say remote work has helped their organization hire and retain more employees from diverse backgrounds.[7] And women, especially women of color, LGBTQ+ women, and women with disabilities, reported that when they work remotely, they experience fewer microaggressions and higher levels of psychological safety.[8]
 
3. Review policies for pre-employment and workplace accident drug screenings. 
We continue to see developments in the decriminalization and legalization of marijuana, which may require employers to review and rethink their drug screening policies.
 
According to the New York Times, a decade ago, recreational marijuana was not legal in any U.S. state.[9] This year, Maryland and Missouri legalized adult recreational marijuana use bringing the number of states that allow adult recreational use to 21.[10]  Moreover, according to a 2022 Pew Research Center survey, 88% of adults believe marijuana should be legal for medical and recreational use by adults.[11]
 
Reflecting the people’s sentiments, President Biden issued a proclamation that pardons federal convictions for simple marijuana possession offenses.[12] President Biden also encouraged Governors to follow suit with regard to state offenses.[13]
 
Further destigmatizing marijuana usage, the Council for the District of Columbia passed the Cannabis Employment Protections Amendment Act. Under the Act, an employer may not refuse to hire, terminate from employment, suspend, fail to promote, demote, or otherwise penalize an individual based upon the individual’s use of marijuana. This brings the District of Columbia in line with a handful of states, including Montana and Nevada, prohibiting discrimination based on recreational use. Notably, the Act does not permit employees to be impaired while at work or to distribute, sell, or use marijuana while at work.
 
A law recently passed in New York City goes a step further and prohibits certain employers from requiring employees to submit to a pre-employment screening for marijuana.[14]
 
Because the laws regarding drug screening vary between states and localities, uniformity may be a concern for employers with operations in multiple locations or with various types of employees. For example, some employees may work in New York City, where such testing is prohibited, while others may work in a locality where testing is permitted.
 
And while there may be a temptation to do away with pre-employment drug screenings, safety should remain a top concern. Moreover, employers should be aware that even considering new restrictions on pre-employment drug screening, employers are still permitted to require employees to submit to post-accident and reasonable suspicion testing.
 
Regardless of whether your company requires drug screenings, it should have a written drug and alcohol policy and enforce it consistently.
 
4. Reconsider your organization’s approach to unions.  

In the upcoming year, consider assessing your company’s union strategy. In light of a tightening labor market and rising inflation, employees are demanding higher wages and additional benefits, and more employers are seeing themselves at the bargaining table.
 
As a result, we have seen high-profile union victories for food and drink service employees and warehouse workers. We also watched as flights were delayed and canceled as union pilots demanded better working conditions at airports across the U.S. And, most recently, the rail union made headlines as it worked to reach a deal with the White House and avoid a nationwide strike.
 
The National Labor Relations Board (NLRB) reported union representation petitions increased by 53% in fiscal year 2022–up to 2,510 from 1,638 during fiscal year 2021.[15] And 71% of Americans now approve of labor unions, the highest percentage since 1965, according to a survey conducted by Gallup.[16]
 
In the past, employers tended to fight unionization or engage in “union avoidance.” One alleged union avoidance strategy is holding mandatory meetings, also known as captive audience meetings, where employers express their position and concerns regarding unionization.
 
In April, NLRB General Counsel Jennifer Abruzzo asked the NLRB to find these meetings violate the National Labor Relations Act (NLRA).[17] Accordingly, while captive audience meetings are still permitted, employers should keep abreast of developments in this area of the law.
 
Also, as the industries affected by unionization petitions continue to expand, we are learning that some employers have a different mindset regarding unions–particularly employers with progressive values and policies. Accordingly, it has become more common for employers to quickly sign recognition agreements and move into the bargaining stage.
 
Regardless of your organization’s union strategy, it is essential to have respectful and professional engagements with prospective unions. Conversations surrounding unionization are receiving significant media attention, and in an age when most Americans approve of unions, hostile engagements with a union may harm the business.
 
5. Develop workplace violence prevention plans and consider providing active shooter training.
 
Unfortunately, the U.S. is experiencing yet another record-setting year for mass shootings.[18]  We continue to mourn the loss of teachers and students murdered at Robb Elementary School in Uvalde, Texas; employees and customers gunned down at a grocery store in Buffalo, New York; and employees and clubgoers killed at Club Q in Colorado Springs, Colorado.
 
We would be remiss not to remind employers of the importance of going beyond the standard workplace violence policy. Instead, employers should consider carefully crafted and widely disseminated workplace violence prevention plans.
 
According to The Violence Project, current or former workplaces were the most common sites for mass shootings.[19] The U.S. Bureau of Labor Statistics recently reported there were 392 workplace homicides and 37,060 nonfatal workplace injuries intentionally inflicted by another in 2020.[20]
 
To combat such tragedies, Congress passed the Bipartisan Safer Communities Act in June 2022.[21] The Act provides funding for school safety, mental health, and crisis intervention programs; establishes incentives for states to include juvenile records in their background check system; and expands restrictions on obtaining a gun for individuals convicted of serious relationship violence.
 
At the same time, some states continue to decrease gun restrictions. For example, this year, Georgia passed a law making it legal for Georgia gun owners to carry concealed handguns in public without a license.[22] While the Georgia law and other similar laws allow for unlicensed concealed carry, in most cases, private employers can still implement rules to prohibit employees from possessing a weapon in the workplace. Employers who wish to enforce these restrictions should have a comprehensive no-tolerance policy in their employee handbook and post signs noting the prohibition of guns and other weapons near entries.
 
To help prevent potential workplace violence, employers should ensure their sponsored healthcare plans provide comprehensive coverage for mental health treatment. Certain state laws have made this task more manageable. For example, in July 2022, Georgia passed House Bill 1013, which requires public and private health care plans to cover mental health and substance use disorder treatment equitably with physical health.
 
Employers should also consider providing workplace violence prevention and active shooter trainings to ensure employee preparedness in case of an emergency. And employers should also take complaints of workplace violence seriously and investigate such claims thoroughly.
 
6. Revise workplace agreements to empower sexual assault and harassment victims.
 
The #MeToo movement brought about several changes and protections for workplace sexual assault and sexual harassment victims. One change was that many states passed laws prohibiting the enforcement of forced arbitration agreements and nondisclosure and non-disparagement clauses for workplace sexual assault and sexual harassment claims.
 
Three new states—Maine, Oregon, and Washington—passed #MeToo legislation in 2022.[23] Notably, Washington’s law, The Silence No More Act, is particularly expansive as it goes beyond claims related to sexual assault or sexual harassment and also prohibits employers from enforcing nondisclosure and non-disparagement provisions in claims relating to illegal acts of discrimination, harassment, retaliation, and wage and hour violations.
 
In 2022, the federal government also joined in the efforts to protect sexual assault and sexual harassment victims by passing two acts.
 
First, in February, Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which precludes the enforcement of pre-dispute mandatory arbitration agreements and provisions which prohibit sexual assault and sexual harassment survivors from filing claims in courts.[24]
 
Then, in November, Congress passed the Speak Out Act, which prohibits the judicial enforceability pre-dispute nondisclosure or non-disparagement clauses in cases involving sexual assault or sexual harassment.[25] In passing the Act, Congress found that one in three women has faced sexual harassment in the workplace during her career.
 
In light of recent federal and state legislation, employers should review and update their employment arbitration provisions, severance agreements, settlement agreements, handbooks, and other documents containing pre-dispute arbitration, nondisclosure, or non-disparagement provisions. Additionally, employers should be prepared to litigate any state or federal law claims regarding sexual harassment in court rather than arbitration.
 
7. Prepare to comply with pay transparency laws, even if your company is located in a state without such laws.
 
The time has come for employers to understand and consider their obligations to comply with pay transparency laws. In 2022, more states, including California and Washington, and localities, including New York City, passed pay transparency laws requiring employers to include the pay range in job postings.
 
Specifically, California’s law, effective January 1, 2023, requires employers with 15 or more employees to include the pay scale for a position in any job posting.[26] Washington’s law contains similar requirements and goes further to require employers to also disclose a general description of all the benefits and other compensation in each job posting.[27]
 
New York City’s pay transparency law went into effect on November 1, 2022.[28] The law covers any work performed in New York City and requires employers to include a “good faith” pay range in all job advertisements.
 
Initially, to avoid complying with pay transparency laws, some employers tried to exclude candidates living in states with pay transparency laws from applying for positions with their companies. These efforts, however, were met with pushback.
 
For example, Colorado’s Department of Labor issued guidance clarifying that all Colorado employers’ job postings must comply with the state’s pay transparency laws, whether the work was not to be performed in Colorado or not.[29]
 
Excluding applicants from states with pay transparency laws will be an even less viable option as more states continue to pass pay transparency laws. And even if your company is not located in a state or locality with a pay transparency law, these laws may apply to your company’s virtual positions. 
 
Thus, as employers prepare to include pay ranges and benefits in job postings, they should conduct an internal analysis of employees’ wages and benefits and make adjustments as necessary to address potential pay equity issues.
 
8. Consider whether employees should be reimbursed for remote work expenses.
 
Another issue that remains top of mind is whether employees must be reimbursed for expenses related to remote employment. Remote work expenses may include cell phone/internet plans, computers, printers, office furniture, and other office supplies.
 
Generally, federal law does not require employers to reimburse employees for remote work expenses. And most states do not require employers to reimburse employees for remote work expenses either. Some states, however, have general employee reimbursement laws that have been or can be applied to remote worker expenses.
 
For example, Illinois requires employers to reimburse employees for all necessary expenses and losses, potentially including internet access and phone bills when such tools are used for remote work purposes.[30]
 
California’s general employee reimbursement statute has been expansively applied to remote workers, potentially requiring reimbursement for personal/professional mixed-use items and services.[31]
 
As a result, California serves as the locus of the most active litigation regarding remote employee reimbursement issues, with putative class actions filed against several large companies.
 
For example, in one case, a putative class of pandemic remote workers asserted claims under the California Labor Code seeking recovery for home internet, electricity, and other home office expenses. [32]
 
When determining whether your company must reimburse an employee for remote work expenses, the first step should be to determine the employee’s working location—as each state has different requirements.
 
Employers should also establish a policy for reimbursing expenses and ensure the policy complies with the applicable law. As demonstrated above, state law may require employers to reimburse certain expenses even if no reimbursement is requested. Additionally, policies that provide a one-time or monthly stipend may not be sufficient to comply with the law.
 
9. Evaluate employee monitoring programs to ensure compliance with laws and increase employee morale.
 
Since the beginning of the pandemic, some employers have questioned the productivity of remote workers. A Stanford University study found, however, that in the summer of 2020, remote workers were 5% more productive than in-person workers and 9% more productive by the spring of 2022.[33]
 
One possible explanation for the increased productivity is that employers have found ways to monitor and surveil employee productivity. But employee monitoring presents many concerns employers should consider before using these methods to gauge productivity.
 
For starters, the Electronic Communications Privacy Act of 1986 prohibits an employer from intentionally intercepting the oral or electronic communications of employees, absent a “legitimate business purpose” or consent. Thus, employers should be transparent about employee monitoring programs and receive consent from employees when possible.
 
In an October 2020 memorandum, NLRB General Counsel Jennifer Abruzzo explained employers are increasingly using new technology, such as key loggers and software that takes screenshots or audio recordings throughout the day, to monitor and manage employees.[34]
 
She expressed concern that these tools may interfere with an employee’s rights under Section 7 of the NLRA to self-organize, form, join, or assist labor organizations, bargain collectively, and engage in other protected activities.[35] 
 
Abruzzo encouraged the NLRB to “zealously” enforce existing laws and adopt a new framework for protecting employees from employer surveillance and management practices. Specifically, she has asked the NLRB to embrace a balancing test that weighs the employer’s legitimate business interest in monitoring against the employee’s rights to engage in protected activities. Accordingly, employers should ensure that any such program has a legitimate business purpose.
 
Furthermore, a study by the American Psychological Association found that using employee monitoring programs can contribute to employees having problems with emotional and psychological well-being at work and feeling tense and stressed during the workday, amongst other negative feelings about the workplace and their industry.[36]
 
Employees may be more amenable to monitoring programs intended to reward hard work, identify areas for further employee training, or evenly distribute the workload.[37]
 
10. Review algorithmic decision-making tools used in hiring processes.
 
Technology is assisting employers in more areas than employee monitoring. Specifically, employers use algorithmic decision-making to assist with screening and hiring workers. Although tools may prove efficient, they raise various employment law concerns.
 
Algorithmic decision-making uses data and statistical analyses to classify people and assess their eligibility for a benefit or a penalty.[38] Common examples of algorithmic decision-making in the workplace include resume scanners that prioritize resumes that use certain keywords and software that determines an applicant’s fitness for a particular job based on a test that evaluates the prospective employee’s personality or cognitive skills.
 
While technology screening may help eliminate bias, the EEOC has expressed that such tools may disadvantage job applicants and employees with disabilities in violation of the Americans with Disabilities Act (ADA).[39] Accordingly, the EEOC released guidance in May 2022 to assist employers in complying with the ADA while using algorithmic decision-making tools.[40]
 
As explained by the EEOC, an employer could violate the ADA if it requires a prospective employee with disability-related manual dexterity limitations to complete an evaluation without providing a reasonable accommodation, such as offering extended time or the option to provide verbal responses. Thus, employers should provide reasonable accommodation to all qualified applicants.
 
An employer could also violate the ADA if it uses tools, such as resume scanning software, to screen applicants. Specifically, suppose the tool screens out a prospective employee with a gap in their employment history, but the individual had an employment gap because they were seeking treatment related to their disability. In that case, using the tool could violate the ADA.
 
And notably, even if a third-party vendor administers the program, the employer may still be liable.
 
Along the same lines, New York City passed a law regarding automated employment decision tools, which is effective January 1, 2023.[41] Employers must notify candidates that an automated employment decision tool will be used and the job qualifications and characteristics that the automated employment decision tool will be used to access.
 
While New York’s law is the first such law in the U.S., we will likely see additional laws as algorithmic decision-making tools become more commonplace in hiring practices.
 
Conclusion
 
As the landscape regarding controversial issues continues to change, employers should focus on establishing policies and building a workforce that reflects that company’s vision and values. 
 
 
*Lawrence & Bundy also wishes to thank Lovita Tandy, Partner, for her assistance with this article.


[1] Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).

[2] Tex. SB 8.

[3] 29 U.S.C. §1144(a).

[4] J. Edward Moreno, Bloomberg Law, EEOC Official Quietly Targets Companies Over Abortion Travel (Nov. 14, 2022), https://news.bloomberglaw.com/daily-labor-report/eeoc-official-quietly-targets-companies-over-abortion-travel-20. 

[5] Brief for Major American Business Enterprises as Amicus Curiae Supporting Respondents, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and University of North Carolina, Nos. 20-1199 & 21-707 (2022).

[6] Thurgood Marshall College Fund, Historically Black Colleges and Universities (HBCUs), https://www.tmcf.org/about-us/member-schools/about-hbcus/.

[7] McKinsey & Company, Women in the Workplace – 2022, https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2022.pdf.

[8] Id.

[9] German Lopez, New York Times, Marijuana Majority (Nov. 23, 2022), https://www.nytimes.com/2022/11/23/briefing/legal-weed-marijuana.html?unlocked_article_code=AAAAAAAAAAAAAAAACEIPuonUktbfqYhlSVUZACbfR9kqoByAir_LzbM1gjrhISWZDDNL1eUXHoGG8gHNea9nLZMV7giseeVgYvUpVeAgiahWJVBsQA2l5cHYyclfKSw47NLiV2lzgpuUBPUxrTLgKzaycLgmme3u7hiMPnL4G_CKiQ1XLwZlpptlcFusyCZIkv-DSrgpr4E4ifQxBZl6RiMDZD2KvZTrCBZ-O9aHbHLM1V8GrEZCXyIw4nqu_9Xex5SCFnGUHt__W85jdtcM9gXN6z5RAUy3DZlZkmT0LT1THjEp8OGZA&smid=nytcore-ios-share&referringSource=articleShare.

[10] Md. HB 837; Mo. Const. Amend. 3.

[11] Ted Van Green, Pew Research Center, Americans overwhelmingly say marijuana should be legal for medical or recreational use (Nov. 22, 2022), https://www.pewresearch.org/fact-tank/2022/11/22/americans-overwhelmingly-say-marijuana-should-be-legal-for-medical-or-recreational-use/.

[12] White House, A Proclamation of Granting Pardon for the Offense of Simple Possession of Marijuana (Oct. 6, 2022), https://www.whitehouse.gov/briefing-room/presidential-actions/2022/10/06/granting-pardon-for-the-offense-of-simple-possession-of-marijuana/.

[13] White House, Statement from President Biden on Marijuana Reform (Oct. 6, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/06/statement-from-president-biden-on-marijuana-reform/.

[14] NYC Department of Citywide Administrative Services, Pre-Employment Testing for Tetrahydrocannabinols or Marijuana – Local Law 91 of 2019, https://www.nyc.gov/site/dcas/employment/pre_employment_testing_for_tetrahydrocannabinols_or_marijuana.page#:~:text=New%20Subdivision%2031%20of%20Section,of%20any%20tetrahydrocannabinols%20(THC)%20or.

[15] National Labor Relations Board, Election Petitions Up 53%, Board Continues to Reduce Case Processing Time in FY22 (Oct. 6, 2022), https://www.nlrb.gov/news-outreach/news-story/election-petitions-up-53-board-continues-to-reduce-case-processing-time-in.  

[16] Justin McCarthy, Gallup, U.S. Approval of Labor Unions at Highest Point Since 1965 (Aug. 30, 2022), https://news.gallup.com/poll/398303/approval-labor-unions-highest-point-1965.aspx.

[17] National Labor Relations Board, NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings (Apr. 7, 2022), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and.

[18] Ian Thomsen, News @ Northeastern, In Wake of Colorado Springs Massacre, 2022 is Deadliest Year for Mass Shootings, Northeastern Expert Says (Nov. 21, 2022), https://news.northeastern.edu/2022/11/21/mass-shootings-record-year/.

[19] The Violence Project, Search the Database, https://www.theviolenceproject.org/mass-shooter-database/.

[20] U.S. Bureau of Labor Statistics, Workplace violence: homicides and nonfatal intentional injuries by another person in 2020 (Nov. 21, 2022), https://www.bls.gov/opub/ted/2022/workplace-violence-homicides-and-nonfatal-intentional-injuries-by-another-person-in-2020.htm.

[21] Bipartisan Safer Communities Act, S. 2938, 117th Cong. (2021-2022).

[22] Ga. SB 319.

[23] Me. HP 711; Or. S.B. 1586; Wash. HB 1795.

[24] Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, H.R. 4445, 117th Cong. (2021-2022).

[25] Speak Out Act, S. 4524, 117th Cong. (2021-2022). 

[26] Cal. SB-1162.

[27] RCW 49.58.110.

[28] NYC Human Rights, Salary Transparency in Job Advertisements, https://www.nyc.gov/site/cchr/media/pay-transparency.page.

[29] Colorado Department of Labor and Employment, Interpretive Notice and Formal Opinion (“INFO”) #9: Equal Pay for Equal Work Act, Part 2: Transparency in Pay and Opportunities for Promotion and Advancement, https://cdle.colorado.gov/sites/cdle/files/INFO%20%239%20Equal%20Pay%20Transparency%20Rules%20%28revised%207-21-21%29.pdf.

[30] 820 ILCS 115/9.5.

[31] Labor Code, § 2802.

[32] See Williams v. Amazon.com Svcs., LLC, No. 22-cv-01892-VC, 2022 WL 1769124 (N.D. Cal. June 1, 2022).

[33] Dr. Gleb Tsipursky, The SHRM Blog, Does Remote Work Contribute to Inflation (Nov. 2, 2022), https://blog.shrm.org/blog/does-remote-work-contribute-to-inflation#:~:text=A%20Stanford%20University%20study%20found,into%20more%20remote%2Dfriendly%20technology.

[34] National Labor Relations Board, NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices (Oct. 31, 2022), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-issues-memo-on-unlawful-electronic-surveillance-and.

[35] Jennifer A. Abruzzo to All Regional Directors, Officers-in-Charge and Resident Officers, Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights (Oct. 31, 2022).

[36] American Psychological Association, APA’s 2022 Work and Well-being Survey results, https://www.apa.org/pubs/reports/work-well-being/2022-mental-health-support#:~:text=Workplace%20monitoring%20is%20common%E2%80%94and%20sometimes%20harmful&text=Working%20in%20environments%20with%20electronic,psychological%20well%2Dbeing%20at%20work.

[37] See e.g. Chase Thiel, Julena M. Bonner, John Bush, David Welsh, and Niharika Garud, Harvard Business Review, Monitoring Employees Makes Them More Likely to Break Rules (June 27, 2022), https://hbr.org/2022/06/monitoring-employees-makes-them-more-likely-to-break-rules; Michael M. Moon, IHRIM, In Employees We [Must} Trust: Using Employee Monitoring Software for Good and Not Evil, https://www.ihrim.org/2021/06/in-employees-we-must-trust-using-employee-monitoring-software-for-good-and-not-evil-by-michael-m-moon-phd/.

[38] Mark MacCarthy, Brookings, Fairness in algorithmic decision-making (Dec. 6, 2019), https://www.brookings.edu/research/fairness-in-algorithmic-decision-making/.

[39] U.S. Equal Employment Opportunity Commission, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees (May 12, 2022), https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.  

[40] Id.

[41] NYC LL 144.