Employment Law Update: 2023

Employment Law Updates

• Contrary to popular belief, shifts in employment law to address remote work and worker welfare were happening before the pandemic. 
• This is due to the federal government’s reluctance to weigh in on specific situations impacting employers and employees, leaving it to states’ employment and labor departments. 
  • Common examples of employment policy issues left up to the states in 2023 include:
    • Laws that forbid employers from asking questions about if a prospective employee is formerly incarcerated or a felon (Ban the Box initiatives);
    • Medical and recreational marijuana laws; 
    • Independent contractor issues;
    • Non-compete agreements;
    • Pay equity and transparency laws;
    • Laws governing union membership.
• As many of these policies rest at a state-level decision, this can greatly impact organizations with employees or locations across many states.
  • Many employers, while thrilled to be able to hire from anywhere without relocation costs, aren’t necessarily considering the implications of those hiring actions. 
    • Having employees from 30 states is fine, but the HR handbook must reflect each state’s unique employment policies. 
      • This means that HR professionals must increase their familiarity and expertise with employment laws in multiple states. 
      • Sometimes, laws and regulations can vary even from county-to-county. 

Updates For 2023

• There are common themes in employment law updates across states in 2023. These are typically issues the federal government hasn’t provided overarching guidance or regulation.
  • California and New Jersey have implemented a more expansive form of federal WARN Acts (laws that govern how workplaces inform of plant closures and mass layoffs). 
    • Increasing the expansiveness of WARN Acts at a state level could be common in 2023 across the country. 
  • The FTC proposed a rule that would ban non-compete agreements from employers in January of 2023. 
    • The proposed rule change by the FTC has caused a ripple effect in the economy since its announcement.
  • New Jersey also has created a new temporary worker law that Mr. Lessig considers to be encumbering to blue-collar businesses and temporary staffing agencies. 
  • Many states are looking at laws clarifying pay transparency on job postings and what should always be included on employment listings. 
  • Leave issues, such as how PTO is calculated and offering bereavement leave, are common in 2023. 
    • Some states are considering creating pooled state funds for sick leave, similar to unemployment.
  • Finally, states are expanding their focus on employment law updates to include emerging issues such as using artificial intelligence in the workplace and ensuring that employees are paid equitably regardless of gender or race.
• Mr. Lessig believes the biggest new employment law update facing employers in 2023 will be the DOL’s upcoming rules updates to overtime regulations. 
  • It is expected the DOL will likely propose a rule to raise the salary threshold that could re-classify a worker as non-exempt in May of 2023. This proposed rule change does not guarantee it will be enacted. 
  • Additionally, the DOL could revise a rule governing the duties tests that help classify workers as exempt or non-exempt. 
• Additionally, Mr. Lessig believes that all HR professionals and organizational leaders must care about what’s happening in other states’ legislatures. He says this is because of a bandwagoning effect that tends to ripple across state governments in waves.
  • “If your legislature takes a look at what's happening in Trenton and thinks, ‘Wow, that's a really good idea. We never thought about that.’ The next thing you know, it's on your docket as well.”

How Employment Law Updates Impact You In 2023

• In 2023, no matter if someone is an employee, manager, or HR professional, everyone is “doing more with less, and everyone is exhausted.”
• For employers and employees, the response to employment law updates has been mixed. The organizations that have done away with the larger brick-and-mortar operations have been happy, especially as the Department of Labor continues to clarify rules that govern remote work. 
  • For example, DOL says that employment law posters can now be displayed digitally to comply with the law. 
  • But some independent contractors find that the new laws can retroactively classify them as employees when they don’t want those classifications.
• Overall, Mr. Lessig believes that employees hope some laws and rules will improve their lives - and while he is cautiously optimistic these laws will better serve and protect employees, he isn’t confident they will. 
• Organizations need to appreciate the fact that it is going to cost more to remain in operation. These costs can come from the following: 
  • Addressing how an employer can keep and retain top talent by making the organizational and cultural shifts to become an employer of choice. 
  • Complying with alterations to overtime or paid time off requirements dictated by the state or federal government. 
  • Rethinking the workplace regarding hybrid work and how employers cross-train people. 
• Mr. Lessig recommends that HR professionals try to stay on top of shifts in employment law by staying active on LinkedIn or Twitter. 
  • Other resources he recommends are SHRM’s website, the federal Department of Labor, the FTC, and state labor and employment department websites. 

Employment Law Updates’ Impact On Unions And Labor Organizing 

• The Biden Administration rescinded many regulations set in place by the Trump administration. 
• Rulings by the National Labor Relations Board are bleeding into non-labor workspaces. This is likely because President Biden has committed himself to being the most pro-union and pro-labor administration ever. To support Biden’s pro-labor initiative, the federal government has increased the investment of money into the budget to enforce regulations.
• It’s recommended that employers have an honest conversation about the culture that they have currently, where they want to be, and then how they get there.
  • Many employers and unions need to look at their situation practically. Employers need to ask themselves if they can offer the solutions and benefits that make union membership attractive. Unions need to get clear on what unique value they can bring to the membership that isn’t duplicated by employers offering an increase in wages. 
  • Employers are also cautioned against considering voluntary benefits, training, and an investment in culture as “optional”.
    • “We've got to be able to sit down and say, ‘Listen, we are going to take care of you. And it may be a challenge, but we're going to figure out a way through it.’”
  • An organization that is honest with itself about its culture will likely have a group of employees that will not feel compelled to join or form a union. 
  • With a positive workplace culture, organizations should address any concerns related to time off or other benefits without needing collective bargaining or union involvement. 

Mr. Louis Lessig Is “The Employment Law Translator”

• Mr. Lessig loves the opportunity “to be collaborative with clients in getting them from A to B.”
• Louis enjoys not only working with clients as a partner at the firm Brown & Connery, LLP but also speaking at corporate events and HR trainings. 

Louis Lessig Background

• JD, Law from Widener University Law School
• BA, Human Resources with a concentration in entrepreneurial studies from Muhlenberg College
• Mr. Lessig was the Co-Founder and Partner at Pinnacle Employment Law Institute (PELI)
• He served as President of the Muhlenberg College Alumni Board, of the Camden County Bar Association and the National Speakers Association of Philadelphia
• He was the State Director of the Garden State Council SHRM
• At present, he is the Northeast Membership Advisory Council Representative for SHRM
• Currently, Mr. Lessig serves as Partner at Brown & Connery, LLP

Contact

• Louis Lessig on LinkedIn
• Louis Lessig email: llessig@brownconnery.com