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Employment Law Update- 1/31/2022

By January 31, 2022No Comments

CONTENTS:

  • OSHA EMERGENCY VACCINE MANDATE WITHDRAWN
  • CONGRESS POISED TO PRECLUDE ARBITRATION FOR HARASSMENT CLAIMS
  • BROAD CONFIDENTIALITY AGREEMENTS MAY VIOLATE CALIFORNIA LABOR LAW
  • REMINDER—UTAH LEGISLATIVE SESSION STARTS THIS MONTH
  • JONES WALDO TO PROVIDE ANNUAL EMPLOYMENT LAW UPDATE 

OSHA EMERGENCY VACCINE MANDATE WITHDRAWN: After a recent the United States Supreme Court decision enjoined it, the Occupational Safety and Health Administration (OSHA) officially announced the withdrawal of its COVID-19 vaccination and testing Emergency Temporary Standard (ETS), effective January 26, 2022. According to the national SHRM, “OSHA’s withdrawal of its COVID-19 vaccination and testing ETS, which required employers with 100 or more employees to ensure their workers were vaccinated against COVID-19 or underwent weekly testing, nullifies employers’ obligations under the standard. The withdrawal would also discontinue the OSHA ETS case before the U.S. Court of Appeals for the Sixth Circuit because OSHA is unlikely to pursue merit finding for a withdrawn regulation. However, employers must continue to comply with state or local government vaccination and/or testing requirements, which are not affected by the ETS’s withdrawal. While no longer defending against legal challenges to the temporary standard, OSHA is continuing rulemaking efforts for a proposed permanent COVID-19 standard.” Stay tuned.

CONGRESS POISED TO PRECLUDE ARBITRATION FOR HARASSMENT CLAIMS: In what news reports are calling “a rare collaboration between conservatives and liberals,” Congress seems poised to pass legislation that would end the forced use of arbitration for on-the-job sexual harassment. The bill would allow victims to decide whether they want to take their sexual harassment or assault claims to court instead. See S.2342 – Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, found at: https://www.congress.gov/bill/117th-congress/senate-bill/2342?s=1&r=87.

BROAD CONFIDENTIALITY AGREEMENTS MAY VIOLATE CALIFORNIA LABOR LAW: California has long-favored open competition and employee mobility. Section 16600 of California’s Business and Professions Code makes plain that unless a contractual restraint fits into one of three exceptions (sale of goodwill or interest in a business, dissolution of a partnership, or dissolution of a limited liability company), the restraint is void. In this respect, California courts have repeatedly held that non-competes in employment contracts are per se invalid under California law. Now, confidentiality provisions that similarly limit employee mobility have also been found to run afoul of Section 16600. On January 13, 2022, in a case brought by current and former Google employees against Google pending in the Superior Court of California in the County of San Francisco, the Court ruled that Google’s broad confidentiality provision requiring employees to “hold in the strictest confidence and take all reasonable precautions to prevent any unauthorized use or disclosure of Google Confidential Information” amounted to a de facto non-compete in violation of Section 16600. The Court explained that because Confidential Information in the agreement is defined as “any information in any form that relates to Google or Google’s business and that is not generally known” and because employees cannot “disclose Google Confidential Information to any third party without [ ] prior written authorization,” this provision would prohibit any employee from finding new employment because the employee would not be able to speak about their skills or experience at Google, thereby barring the employee from working in their chosen profession indefinitely. This finding could prove problematic for employers who have removed non-competes and non-solicit from their California agreements, but still, have broad confidentiality provisions that function in practice like a non-compete. It is not yet known whether Google will appeal this decision. You can read more about this decision here. (Written by Jones Waldo lawyer Liz Butler, who helps business clients deal with non-compete and related issues. You can contact Liz at lbutler@joneswaldo.com.)

REMINDER—UTAH LEGISLATIVE SESSION STARTS THIS MONTH: The annual regular 45-day session of the Utah Legislature starts on January 18, 2022, and ends on March 4, 2022. Many employment-related bills are on file already. Here is a list of the bills we are tracking:

SB129- State Prevailing Wage Requirements:  requires workers on a state construction project to be paid a prevailing wage.                 https://le.utah.gov/~2022/bills/static/SB0129.html

HB 192- Former Offender Employment Amendments: when hiring a mental health professional, prohibits a public or private employer from considering certain arrests or criminal convictions, denying employment based on certain criminal convictions; and denying certain employment based on the mental health professional’s participation in substance use treatment. https://le.utah.gov/~2022/bills/static/HB0192.html

SB 117 – Utah Antidiscrimination Act Amendments: amends the Utah Antidiscrimination Act to provide protection for a trait historically associated with race, including a protective hairstyle. https://le.utah.gov/~2022/bills/static/SB0117.html

HB202- Employment Selection Procedures Act Amendments: amends the Employment   Selection Procedures Act to prohibit an employer from inquiring into an applicant’s compensation history.https://le.utah.gov/~2022/bills/static/HB0202.html

SB95- Limitations on Employer Liability: addresses liability of an employer in certain industries for negligently hiring, or failing to adequately supervise, an employee that has been previously convicted of an offense. https://le.utah.gov/~2022/bills/static/SB0095.html

HB 32- Health Care Worker Protection Amendments: enacts enhanced penalties for assault or threat of violence against an owner, employee, or contractor of a health facility. https://le.utah.gov/~2022/bills/static/HB0032.html

SB 63- Bereavement Leave Amendments: requires public employers to implement rules that will provide bereavement leave for employees who suffer the loss of a child as a result of a miscarriage or stillbirth. https://le.utah.gov/~2022/bills/static/SB0063.html

HB 60- Vaccine Passport Amendments: with certain exceptions, prohibits immunity passports and makes it unlawful discrimination for an employer to require proof of immunity status. https://le.utah.gov/~2022/bills/static/HB0060.html

HB 63- Covid-19 Vaccine Exemptions: requires an employer to relieve an employee or a prospective employee of a COVID-19 vaccination mandate if the employee or prospective employee submits a physician’s note stating that the employee or prospective employee was previously infected by COVID-19.  https://le.utah.gov/~2022/bills/static/HB0063.html

JONES WALDO TO PROVIDE ANNUAL EMPLOYMENT LAW UPDATE FOR SALT LAKE SHRM ON FEBRUARY 8:  On February 8, 2022, the Employment Law Team from Jones Waldo—i.e., the authors of these updates—will present a 2022 employment law update at Salt Lake SHRM’s Professional Development Meeting.  Salt Lake SHRM’s tentative plan is to hold the presentation live at Gardner Village on February 8, from 10:00 am to 1:00 pm, with an option to participate remotely via live stream. We will cover all the latest COVID-19 developments, including a roundup of the Biden Administration’s various vaccination mandates, who pays for COVID testing (including the time spent waiting to be tested), the CDC’s latest isolation and quarantine guidelines, whether a COVID-19 infection may be considered an ADA-covered disability, and current OSHA safety recommendations. But rest assured, the law has changed in other ways that have nothing at all to do with COVID-19. The Jones Waldo team will cover these topics too, including a Utah legislative update, the latest EEOC and UALD enforcement data, key new federal court decisions, the Biden Administration’s wage hike for employees of federal contractors, and its apparent plans to limit non-compete agreements. For additional information, or to register, please visit Salt Lake SHRM’s website at Annual Legal Update (slshrm.org).

 

 

Mike O’Brien | mobrien@joneswaldo.com
Mark Tolman | mtolman@joneswaldo.com
Marci Rechtenbach | mrechtenbach@joneswaldo.com
Paul Smith | psmith@joneswaldo.com
Michael Judd | mjudd@joneswald.com
Elena Vetter | evetter@joneswaldo.com

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