On August 25, 2022, the United States Securities and Exchange Commission adopted a final rule requiring new disclosures for public companies regarding the relationship between executive compensation and company performance. Among other things, companies are now required to develop a new table that discloses multi-year compensation data side-by-side with prescribed financial performance metrics and a company-specified metric that the company views as the “most important” financial measure used to link executive compensation to corporate performance. Our Securities & Capital Markets colleagues published this alert discussing the new rule and how companies might approach compliance in their next proxy statement. The alert will be of interest to corporate secretaries, executive compensation professionals, securities and disclosure counsel, controllers, and other related stakeholders.
The City and County of San Francisco (the “City”) has significantly amended its Family Friendly Workplace Ordinance (“FFWO”), which gives employees the right to make a written request for a flexible or predictable working arrangement to allow them to balance family caregiving responsibilities. The amended FFWO, which took effect on July 12, 2022, loosens employee eligibility requirements and expands employer obligations, including by providing that employers must provide a flexible or predictable work arrangement upon request unless the arrangement would impose an undue hardship on the employer. The FFWO continues to cover employers that have 20 or more employees and maintain a physical business location in San Francisco.Continue Reading San Francisco Expands Flexible and Predictable Workplace Requirements
Starting November 1, 2022, New York City employers will be required to post salary ranges on advertisements for internal and external job listings. This new law, which amends Section 8-107 of the New York City Administrative Code, provides that it is an “unlawful discriminatory practice” for employers and employment agencies to list a job, promotion, or transfer opportunity in an advertisement without including the maximum and minimum salary range for the position.
After the City Council passed amendments on April 28, which were signed into law by Mayor Eric Adams on May 12, the New York City Commission on Human Rights (the “Commission”) published updated guidance for employers on the amended law.Continue Reading New York City’s Amended Salary Transparency Law to Take Effect on November 1
A new law signed by President Biden brings significant changes to employers’ ability to require arbitration of certain disputes with employees and could lead to an increase in sexual assault and sexual harassment claims against employers in court. On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”). The Act amends the Federal Arbitration Act (“FAA”) to provide that predispute arbitration agreements and predispute joint-action waivers relating to sexual assault and sexual harassment disputes are unenforceable at the election of the person or class representative alleging the conduct. The Act took effect immediately upon signing.
In a development that will sound familiar to employers, California has reinstated the requirement, which had expired last fall, to make available to employees up to 80 hours of COVID-19 supplemental paid sick leave (“Supplemental Sick Leave”). The new measure, Senate Bill (“SB”) 114, was signed by Governor Newsom on February 9, 2022, and the requirement to provide the new sick leave went into effect on February 19. Employees may use the new sick leave retroactive to January 1, 2022.
Governor Newsom has signed a number of workplace laws that take effect on January 1, 2022. Here’s a rundown on key provisions: Continue Reading New California Workplace Laws for 2022
Pursuant to a new Order issued by New York City’s Commissioner of Health and Mental Hygiene, beginning December 27 workers in New York City who perform in-person work or interact with the public in the course of their work must provide proof of at least one dose of a COVID-19 vaccination before entering the workplace. Workers then have 45 days to show proof of their second dose if they received either the Pfizer or Moderna vaccine. The Order requires employers to exclude from the workplace any worker who has not provided proof of vaccination or been granted a religious or medical accommodation to the vaccine mandate, as well as workers who do not provide proof of a second Pfizer or Moderna dose within 45 days of submitting proof of the first dose.
Governor Newsom recently signed into law SB 331 to impose a number of new restrictions on employment settlement, separation, and nondisclosure agreements. Here’s an overview of the new requirements, which apply to agreements entered into on or after January 1, 2022:
First, for settlement agreements involving claims of harassment or discrimination based on any protected class or retaliation, the new law bars confidentiality provisions that prevent an employee from disclosing information regarding the claim. This is an expansion of current law that prohibits such confidentiality clauses in settlement agreements pertaining to claims of sexual assault, sexual harassment, or sex discrimination. Consistent with existing law, employers can still prevent the disclosure of amounts paid in settlement. Also, at the employee’s request, an agreement may include a provision that shields their identity and facts that could lead to the discovery of their identity, except if a government agency or public official is a party to the settlement agreement.
Second, SB 331 prohibits confidentiality and non-disparagement provisions in employment separation and nondisclosure agreements that have the purpose or effect of restricting disclosure of information about harassment, discrimination, or other workplace conduct the employee believes is unlawful. Furthermore, employers must include the following language in a non-disparagement or other contractual provision that restricts an employee’s ability to disclose information related to conditions in the workplace: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” These requirements do not apply to a negotiated settlement agreement to resolve an underlying claim filed by an employee in a court, administrative agency, alternative dispute resolution forum, or the employer’s internal complaint process.
Third, the new law requires that for all employment separation agreements (except negotiated settlement agreements as noted above), the employer must (1) notify the employee that the employee has a right to consult an attorney regarding the agreement, and (2) provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign the agreement prior to the end of the five-day period if the decision to do so is knowing and voluntary and not induced by the employer through fraud, misrepresentation, a threat to withdraw or alter the offer, or by providing different terms if an employee signs prior to the expiration of such time period.
In light of these new provisions, employers should promptly review template agreements to ensure compliance as of January 1, 2022. Agreements that do not comply may be unenforceable.
The recently enacted coronavirus economic relief package, the American Rescue Plan of 2021 (“ARPA”), contains the most significant changes in fifteen years to the funding rules of single employer pension plans. These changes have largely has fallen under the radar of the national press – an outcome disappointing perhaps only to ERISA nerds. The little press addressing the pension provisions of ARPA mostly has been focused on the financial relief the legislation provides to troubled multiemployer pension plans — which, as we discuss elsewhere, have major implications for employers that participate, or are considering whether to participate, in a multiemployer plan.
Nevertheless, the significant changes to the single-employer plan funding rules warrant the attention of any employer that sponsors a single-employer defined benefit plan. While the new law may significantly reduce the amount of contributions to pension plans that are required by law, reducing contributions may have other consequences that employers may wish to weigh.
Effective March 29, 2021, California employers with more than 25 employees must provide up to 80 hours of paid sick leave for certain COVID-19-related reasons. The new law, Senate Bill 95 (adding Labor Code Sections 248.2 and 248.3), is retroactive to sick leave taken beginning January 1, 2021. The law will expire on September 30, 2021.
Last year, California enacted a COVID-19 paid sick leave law that applied to employers with 500 or more employees, and which expired on December 31, 2020. The new California COVID-19 supplemental paid sick leave law (“Supplemental Sick Leave”) requires any business with more than 25 employees to provide Supplemental Sick Leave that is in addition to paid sick leave that the employee is already entitled to under other applicable laws (or previously took under the prior California COVID-19 sick leave law).
Full-time employees are entitled to 80 hours of Supplemental Sick Leave, and part-time employees are entitled to an amount of leave that correlates with: (1) the number of hours the employee regularly works over a two-week period, or (2) if the employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took Supplemental Sick Leave.