California companies with more than 15 California-based employees will have to disclose hourly or annual salary ranges for all job postings by January 1, 2023. According to this HR Brew article, McDermott Partner Michelle Strowhiro said she recommends HR professionals review job descriptions with business leaders and legal counsel (preferably, under legal privilege). The goal is to identify and resolve overlap between rules and adjust salary bands accordingly.
The 411 on Employment Background Checks in Stock and Asset Transactions
Employment background checks help employers hire individuals with integrity whom they can trust, and who do not present a risk to the business, other employees, or the customers and clients that the business serves. Buyers in transactions may view target businesses that run background checks as lower risk for employee performance and retention issues. Background checks also constitute an important area for employment diligence in transactions because an employer or background check vendor’s failure to follow the hypertechnical disclosure and authorization requirements of the Fair Credit Reporting Act (FCRA) and other applicable state and local laws risks potentially material class action exposure and $1,000 penalties per violation. This article explores mitigation strategies that buyers may use in due diligence to identify and valuate potential FCRA exposure.
Round Up of 2021 Legal Issues for US Remote Workers
In a global interview panel sponsored by Lexology, McDermott Partner Carole A. Spink discusses the most critical US legal issues for remote workers. Spink explains how US employers can best prepare for the continuation of remote work and its corresponding legal complexities.
Need a Do-Over? IRS Expands and Updates Qualified Plans Correction Guidance
The Internal Revenue Service (IRS) recently issued Revenue Procedure 2021-30, which provides an updated version of the Employee Plans Compliance Resolution System (EPCRS).
EPCRS is the IRS’s comprehensive program for plan sponsors to correct tax-qualified plan errors. This EPCRS update expands plan sponsors’ ability and methods to correct overpayments and to self-correct certain plan failures without filing a Voluntary Compliance Program (VCP) application, which can be costly and time-consuming. However, the IRS also eliminated the ability of plan sponsors to submit an anonymous VCP application, replacing anonymous VCP submissions with a pre-submission conference option.
Labor and Employment Policy to Watch in 2021’s Second Half
As US Congressional Democrats continue their advocacy for a pro-worker agenda, multiple bills and rules could bring about sweeping changes to the civil rights and labor protections for millions of workers. These include:
- The Equality Act
- The Protecting Older Workers Against Discrimination Act
- The Pregnant Workers Fairness Act
- The Protecting the Right to Organize Act (PRO Act)
- The US Department of Labor’s Overtime Rule
According to McDermott partner Ellen Bronchetti, the PRO Act, for example, would enshrine a strict ABC test into federal law that would analyze whether workers qualify as independent contractors.
“I think that because Biden has promised to strengthen worker protections and strengthen workers’ right to organize, I think employers need to keep a real close eye on this legislation or versions of the legislation or pieces that might get pulled out and put elsewhere,” Bronchetti said in an article published in Law360.
New York State Department of Labor Publishes Standard for Prevention of Airborne Infectious Diseases
On July 6, 2021, the New York State Department of Labor (NYSDOL) published its Airborne Infectious Disease Exposure Prevention Standard (Standard), as required under the New York Health and Essential Rights (HERO) Act. Under the Standard, employers with worksites located in New York are required to either adopt the NYSDOL’s model exposure prevention plan or develop their own alternative prevention plan no later than August 5, 2021, and circulate their plan to employees no later than September 4, 2021.
According to McDermott’s Lindsay Ditlow, Christina S. Dumitrescu and Abigail M. Kagan, employers must adopt a prevention plan but are not required to implement the plan until the New York State Commissioner of Health (Commissioner) designates an airborne disease as a “highly contagious communicable disease that presents a serious risk of harm to the public health.” As of the date of this alert, the Commissioner has not issued any such designation so employers need not implement their plans just yet.
Q&A: What Will the Future World of Work Look Like?
As governments around the world move to end lockdown restrictions, employers are examining how—and if—to bring their employees back to work. In this video, McDermott partner Carole A. Spink provides insight into the challenges facing both employers and employees.
“The issue here in the US is a pragmatic one,” Spink notes. “How do you do that and get buy-in from employees and return them in a reasonable way?”
Employers and Artificial Intelligence: Six Pitfalls to Watch Out For
As governments lift COVID-19 pandemic restrictions, employers are turning to artificial intelligence tools to accelerate their hiring processes.
However, these AI-based tools can open businesses up to discrimination claims if they are not careful, according to McDermott partner Brian Mead.
“[The technology] could decide that certain words [are] unlikely to [yield] successful candidates, and then it’s prescreening out members of protected classes and categories of applicants in a discriminatory way,” Mead said in a recent Law360 article.
California’s “Right to Recall” Law: What You Need to Know
On April 16, 2021, California Governor Gavin Newsom signed Senate Bill (SB) 93 into law, a rehiring and retention law which requires employers in certain industries to make written job offers to employees who were laid off because of the impact of COVID-19. The law takes immediate effect and will remain in effect until December 31, 2024. Previously, some California cities adopted their own versions of local ordinances providing for a right to be recalled, including Carlsbad, Long Beach, Los Angeles, Oakland, Pasadena, San Diego, San Francisco and Santa Clara.
VIDEO: The COVID Vaccine – Understanding What’s Next
Employers have questions about the COVID-19 vaccine and how to update their employment policies. In this video, McDermott partners, Chris Braham, Chris Foster and Michelle Strowhiro answer questions about vaccine requirements in the workforce, additional considerations and more.