Thomas Purcell: Good morning everyone. Thank you for attending our first live webinar of 2023. I see some familiar names on the call today, so good to have you back this year. There's a couple names I do not recognize, so thank you for attending. For those who do not know who I am, my name is Thomas Purcell. I'm the director of our employee benefits service department here at URL.

URL is a wholesale independent brokerage, so we specialize in individual health under 65, Medicare, group health benefits, life and annuities. So I've been handling the employee benefits division and we've been doing these webinars for three years now. We have a great lineup for 2023.

A lot of cool content that we're going to be reviewing. A lot of great co-presenters that I'm gonna be having join me. So I'm really excited for this year and the content we're gonna be sharing. If you've attended any of the webinars last year, you're familiar with my guest here today TJ from Buchanan, Ingersoll and Rooney.

He's the shareholder and labor attorney, and he's just a wealth of knowledge. In terms of anything related to HR and employment law. So I've had him as a guest on in the past, and we've gotten tremendous feedback. So I wanted to bring him back in 2023. On that note with 2023, there's significant updates and things being discussed that TJ's going to review today that are really important to be at the forefront of your minds, whether you're the business owner or a C level executive or, handling the HR aspect of your business.

So thank you for attending. Just a couple quick house cleaning items before we get into it. On the right hand side of your screen, there is a chat Q&A feature. Feel free to type in any questions as we go along. TJ's going to review how you can apply or at least send over your information for the SHRM and the HR credits that are going to be available to you today.

There's also a handout toggle on the right hand side. If you click on that, you're there's a link that you can download that has all the webinars that URL has scheduled so far for 2023, not just my department. So a lot of great content. Medicare is doing a ton of webinars, Elyse from our health plan options department's going to be doing a ton of webinars.

So a lot of great stuff we're putting out for 2023. Please make sure you take a look at those. My next webinar is Tuesday, March 14th at 10:00 AM. I'll get a little bit into that at the end of the slide, but feel free to type in any Q&A's. Feel free to download the handouts. I think that's it. Without further ado, TJ.

Anthony (T.J.) Andrisano: All right. Thanks Thomas. I appreciate it and welcome everyone here today. As Thomas said, I'm a shareholder at Buchanan, Ingersoll and Rooney. I'm basically primarily out of our Harrisburg office. I'm doing labor and employment stuff for about 18 years now. It's getting a little scary that 20 years is approaching pretty quickly. Nonetheless, we have about 12 attorneys here in Harrisburg. All based in Harrisburg, two paralegals, and two practice assistants as well. So we have a pretty big group here in Harrisburg.

All again, practicing labor and employment. And then we have about 60 attorneys that do labor and employment firm-wide. About 425 attorneys overall, but about 60 of us that are concentrating in labor and employment. We are pretty well versed in labor and employment. We have you know, we're up to date on everything that's going on in the labor and employment space.

And then I think that it's important to note that it includes, you know, immigration, employment law, like wage and hour things. Actual labor union things as well, including avoidance and then benefit. Arisa type issues as well. Anything involving the labor and employment world we're, we're pretty well versed in it.

Today, I just wanted to touch base with you on some things that we're seeing in 2023, some updates. I think it's important to note this isn't, legal advice. Something we say just about all our webinars or presentations it's meant to issue spot.

It's really hard to, anticipate every single factual circumstance that you're going through individually. So it's always important for us to be able to outline, "hey, here's what's going on in the employment space." There might be differences in how these issues are affecting your particular employees.

Anthony (T.J.) Andrisano: So while this is good from a perspective of, "hey, here's what happened in this instance here's the court's outcome here, here's where we think this is going in this case." We're gonna touch base on some Supreme Court cases right now that are pending. you'll. See though, that those factual circumstances are probably gonna be a little bit different. So just remember what we're really hoping you take from here today, is that we're issue spotting. We're seeing what's affecting our employees, so that we're proactive to try to avoid any type of these issues coming up in our workforce.

Here's what we're looking for, from an agenda perspective. As Thomas had mentioned this course is eligible for Sherm, NHRCI credits. At the end of this presentation, there's gonna be a code as well as an email address that you can email.

Anthony (T.J.) Andrisano: It's an individual by name of Pamela Manion, who's great, from my office who will be able to get you the credits that you need. So at the end, you get the code, you email it to her, and then she'll let you know what, if anything she may need to make sure that you get the credits for this course.

It is eligible for Sherman the HRCI credits. First thing I want to go through is the EEOC update and predictions. I think the most recent data that we have now is through 2021 with respect to the EEOC filings.

That's not just charges. I know sometimes a lot concentrate on those charges that are ultimately filed, but interestingly enough, you're gonna see here that those charges are actually down. But what's really up is actually the EEOC's enforcement. So we're seeing them be a lot more active.

For those that don't know when a charge is actually filed, whether the individual who filed that charge is represented by an attorney or not, the EEOC is well within its right to ultimately file an enforcement action. Against you as an employer, based upon their findings during the investigation. So I think it's important to note that while these charges are down, we're really seeing the EEOC be a lot more active.

Anthony (T.J.) Andrisano: And I'm actually in the process of handling a few of those matters now, where the EEOC is actually filed actions against some of my clients. And those are completely different types of litigation. The EEOC brings those actions based upon administrative authority that has been given to them through the legislature.

That's a lot broader, and quite frankly concerning for most employers when they ultimately have an action being investigated significantly by the EEOC. Or that, what's known as an enforcement action, when they actually go ahead and file litigation against you as a client. It's important for you to be aware of that switch because that kind of changes strategy a little bit as you're defending these charges that get filed by employees, even those that aren't represented.

So we're gonna talk about that. Then we're gonna talk a little bit about the religious accommodation test. I think this is important, right now it's up at the Supreme Court, of the United States. They're taking a look at a test that's been put in place since the seventies. And they're looking to make some potential changes to that, which will be a little bit more burdensome on employers.

A little bit more friendly to employees. So we'll talk through that. I also wanna talk about the Pump Act. The Pregnant Workers Fairness Act, I have a lot of client questions that have come through that. Those recent amendments to those really are expanding the law. So there are some additional requirements that we have to deal with there.

Exempt employers are now falling within the Pumped Act, so as we'll talk about, that's gonna be something that you may need to address. Then I also wanna talk about the sexual Harassment Assault, the Arbitration and Non-Disclosure Act. There was an act that was signed into law in 2022 that is essentially prohibiting employers from putting gag type clauses and non-disclosure agreements or provisions, I should say, in their agreements. There was also this week, there was an NLRB decision that was handed out. That also affects the NLRA rights of employees, which even for those employers that are not unionized, that don't have unions, you still need to comply with that.

NLRA sometimes folks don't really understand that. So that's, that's an important thing as well. Then salary transparency laws. This is a really big thing. We're seeing this all across the country. New York is really leading the charge, at least recently with that first having several cities, municipalities putting into place certain salary transparency laws. New York State did as a whole as well. So that's a big issue. Paid sick leave statutes is another issue.

Pennsylvania has something that's pending right now that I think's important. I also think with salary transparency and the paid sick leave laws that's come back to employers that might be based in jurisdictions that don't have those laws yet. However, with our remote workforce that we're seeing, and we're seeing individuals who are working all across the country. Or they may be within those particular territories that have that salary transparency law or those paid sick leave statutes.

Quite frankly, getting upfront and making sure that you've addressed those types of laws and making sure that whether or not they're applicable to your workforce or to your remote employees is important.

If you don't do that up front on the back end, you can be facing some pretty harsh penalties,back pay, and other types of litigation costs. On the, the tail end of that we'll also talk about a labor bulletin that's come out that addresses remote workers and some issues like FMLA type issues.

Anthony (T.J.) Andrisano: Break issues, things like that with a remote workforce are a little harder to address. But things that we have to make sure that we do as employers to try to limit any potential liability. And then lastly, we're gonna talk about the proposed rule to ban non-competes. That's right now I think comment period goes to March 10th. That's something that's on the horizon.

As with several other agency actions that we've seen throughout the last year or so, with the OSHA, vaccine mandates and, and other types. Even when it came to the wage and hour Mandate several years back, it was things that were challenged.

I'm sure there's gonna be some litigation, I think the Chamber has outlined that they're looking to potentially take litigation options should the FDC actually put in place that role. There's a lot going on. With respect to non-competes I think it's important because, some of us are working at places that have legitimate business interests in protecting certain confidential information.

Trying to protect those interests with employees by, paying them certain amounts so that they don't ultimately end up leaving to compete against you later. After you've taught them the business and gave them access to your clients. All of these types of things I think are extremely important. As you can see, there's a lot. So again, the whole focus of today is mostly gonna be on trying to kind of issue spot, and make sure that you guys are knowing what's affecting the workplace so that you can get ahead of it.

The EESC update and the predictions. So in 2021 they secured more than 485 million dollars in monetary relief for over 15,000 victims of employment discrimination. That's a significant amount of money and it's a lot of individuals for a single fiscal year.

Anthony (T.J.) Andrisano: They really are a lot more active now, 138 merit lawsuits. Were resolved in just one year. That's significant when we're talking about nationwide. But nonetheless, there's still a lot of resources of the government that are being focused on these types of efforts. They've received favorable results in 95.7% of all district court resolutions.

That's it really important because it goes to what I said earlier, which is the EEOC, when they're bringing litigation against you, it's a different set of rules. They have a legislative authority to bring enforcement actions on a very broad basis. And plaintiff's attorneys, those that generally have brought these lawsuits against companies in the past, they didn't have that same authority.

Anthony (T.J.) Andrisano: And quite frankly there's really no other agency that I've seen that has such broad authority. So to me it's a different game, it's a different set of parameters that you have to deal with. And I think these numbers really show that. They secured a reduction of 9.1% of aged inventory, and that's in the appellate cases.

I think that's important because one, I think they're looking to move cases. Sometimes things can pend for quite some time. These are all important statistics because when you get that charge, you really have to understand that this could become something a lot bigger. A lot broader than what you would initially think when you have an employee that you've let go for legitimate reasons.

The EEC ultimately gets, what I always like to say, under the tent, into your business, your policies, into your procedures. Now things have gotten a little bit more broad, or a little bit more out of control from where you thought you initially would end up when this was first filed.

I think these are all important statistics. This is a little bit of a chart that just kind of shows you the types of charges by claim type that we're seeing. Really you can see how big retaliation is. Even as they've all kind of gone down charges wise in the last, five years or so, retaliation has been a big one.

Anthony (T.J.) Andrisano: I always tell employers, clients or individuals that reach out to me after a suit's been filed or after an employee has engaged in some sort of protected activity. Is that the hardest one to defend a lot of times, is that retaliation claim. They end up engaging in some type of protected activity close in time to when an adverse employment action happens. They have the ability to walk into an attorney's office or go to the EEOC and just explain the situation. When there's that close timing aspect, they're generally getting advice to go forward with filing those charges. So you have to be very careful when you have individuals engaged in some sort of protected activity. So be aware of that.

Here's some predictions for the fiscal year 2023. Look at the budget that we're we're looking at here. That's a 60 million increase over the prior year. I mean, that's a large number. They're looking to, take more and more actions against employers. And they have that broad ability to do it. So just be careful about it.

Anthony (T.J.) Andrisano: They're gonna hire more individuals. You're gonna see that there's certain focused areas. What they've come out to state right now, they're really looking at racial justice, systematic discrimination of all protective bases.

They're also looking at pay equity. And then the civil rights impact of the Covid 19 pandemic. The one that I'll add to this because I see it and the one enforcement action that I'm defending right now involves disability discrimination. I feel as though the EEOC's really been focused on that.

Anthony (T.J.) Andrisano: I think that I've seen a lot of additional requests coming from the EEOC investigators when it involves disability type claims. Make sure if you take away anything with respect to this portion of the presentation, is to make sure that you're putting in place good ADA policies.

When your employees have those types of issues come up, you really should take the conservative approach of really trying to engage in an interactive process. See whether or not you're able to accommodate the employee with whatever type of accommodation that they're requesting.

Anthony (T.J.) Andrisano: Make sure that you're interacting with them to get some medical information to the extent necessary through an ADA type questionnaire. Right? Considering all potential accommodations that that could be out there.

One of the big ones is the reassignment issue. If you have somebody who cannot perform the essential functions of their position with or without a reasonable accommodation. But you have another position that they might be able to be reassigned to, that's open- not asking you to create one. Not saying you need to create light duty or anything, but maybe there's an open position that you're trying to fill. Is that something that you can do as an accommodation? Meaning can you reassign them into that position?

The EEOC is looking for you to at least have that consideration. Again, not saying you need to make unnecessary medical inquiries into employees. What I'm saying is, make sure that you engage in some interactive process with a defined procedures. Make it so that you can look into these types of issues, see if you can accommodate.

Once you don't, you run the risk of potentially having a charge filed against you. Now you have that potential of the EEOC investigation, whether quote unquote, under the tent, looking at all of your processes and procedures. So get ahead of it, make sure you put those in place now. There's the Supreme Court's upcoming decision in the Harvard and North Carolina admission cases. So the North Carolina case, there's an admission program that basically is saying that they favor Black, Hispanic, Native Americans over white and Asian applicants.

Whether or not you know, racial diversity,something like that that's put in place as admissions process is in fact legal. So that's something that's going on in that North Carolina case.

Anthony (T.J.) Andrisano: Harvard case is similar except there, there's some subjective standards that were being utilized that basically gauged, certain traits like likability, courage, kindness, things like that. It's alleged to affect certain racial classifications unfavorably. With the change in the court recently we might see a change in a determination as to whether or not a race conscious admissions policy is actually lawful or not. So again, we should probably see something in 2023, probably, by early summer or so with respect to those cases.

We talked a little bit earlier about religious accommodations. As I mentioned, there's this test from the 1977 Supreme Court decision in transworld Airlines. That has been the test that we've used ever since then. And quite frankly, I was utilizing that test during Covid significantly.

There were a lot of vaccine mandates especially healthcare entities put in place. All employers considered at times and you had to have a religious accommodation as well as a medical accommodation type process as part of those. So there was a lot of different assessments that were done.

Anthony (T.J.) Andrisano: And essentially that undue burden was relatively easy to meet. It's always been hard to meet when it comes to the ADA, but when it comes to, religious accommodation requests it's easier to meet. However, that's now being reviewed. And as I mentioned before, the court appears to be willing to take a more employee friendly interpretation.

We're gonna see where it comes out. In January this year, the justice agreed that they're gonna revisit this legal test.This is what that case is. It actually started here in Pennsylvania, in the Eastern district and the third circuit ultimately had to address the issue.

Anthony (T.J.) Andrisano: So this is something that is close to home for us here. It's the USPS and Amazon coming to an agreement where they were gonna be deliveries made on Sunday by USPS on behalf of Amazon. An individual requested not to work on Sundays as a religious accommodation. There was some back and forth here. I think there was an interactive process that ultimately was engaged in. Whether or not the outcome of that interactive process is ultimately gonna be upheld as being correct. It's gonna be a decision, I think for the Supreme Court, but both the Eastern District and the Third Circuit thought that summary judgment in favor of USPS was appropriate.

We're gonna see what ultimately the Supreme Court thinks of it. I think no matter what, what we're gonna see is a difference in the test that we need to apply when an employee does request in a religious accommodation. I will tell you that I've seen a lot of these types of issues come up a lot.

I think it's coming up in the covid context, as I mentioned, but it's also coming up where we have a lot of a more diverse workforce. When folks are coming in from different countries, they may have different holidays that they celebrate on different days. Things that might not be known to everyone.

Therefore when they're bringing these things to you I've had people come to me after denying those types of requests when in fact it turns out that those are valid religious holidays in the countries that they're from. They're things that we need to go through process-wise to ensure that we're potentially able to, or not able to accommodate them to whether it's an undue burden or not.

As you're doing those determinations, you need to make sure that you're looking at it from the perspective of this standard potentially being changed. So I would make sure that any requests you get for a religious accommodation that you're engaging in that active process. You're looking at any ability for you to potentially be able to accommodate that.

Anthony (T.J.) Andrisano: Is there the ability to give unpaid leave, is their ability to change your holiday policy to allow for individuals to have access to certain amounts of holidays in a year. Then they get to choose those holidays. Does that help maybe your staffing on the holidays that you traditionally have. Again, there's so many different factors that you needed to discuss and see what potentially works for you as an employer.

Again, it's important to realize that you don't necessarily need to accommodate it, but you have to go through the process. It's an interactive process. That's the key part, that if you don't do, you can find yourself with some liability. Now, again, if you make the wrong determination, there's also potential for liability.

At the very least, you're setting yourself up to understand, okay, this is the position we're gonna take. Here's what it's based upon, here's what we have to support that. If it's challenged, we feel very comfortable. We're in the best position possible to, to ultimately defend that challenge. So again, just, just make sure you guys are, are aware of this potential change.

Providing urgent maternal protection for Nursing Mothers Act. I think this one is a relatively easier issue and that is pretty clear as to what's required. You have the previous law, which covered non-exempt employee reasonable break time to express breast milk up to one year after the child's birth.

Anthony (T.J.) Andrisano: Each time such employee had a need to express milk, requires a place other than a bathroom that's shielded from view and free from intrusion. So that's what the previous law had required. So we all are pretty familiar, with those requirements. Now there's three main changes.

So now you're expanding the workplace protections for lactating workers. You're clarifying employer's obligations, and then you're ensuring that their breastfeeding mothers have access to appropriate remedies. So what's the expansion? Now we're including exempt employees.

Previously it was just non-exempt. Now it also includes exempt employees. Expands to employees who are expressing milk due to other circumstances such as a stillborn child or surrogacy issue. So now there's no real issues with that. We would generally advise in those situations to provide just because it was something that made sense and was under really the purposes of the act previously, but now it's clear.

Now it's up from one year to two years for the time of accommodation. You look here at the time spent expressing milk, if the employee's still working, any break time spent pumping, should be considered hours worked. If it's a non-exempt employee situation. If you're not completely relieved from duty during the break, then they're considered to be working, right?

Anthony (T.J.) Andrisano: So if they're answering emails or if there's something that's occurring work-wisethat's hours worked. Quite frankly, whenever comes to wage and hours issues, it's much less of potential liability to take error on the side of caution and consider things hours worked.

That way you don't have to worry about the potential penalties if something's later considered hours work. Those penalties, are pretty significant. They also include potential attorney's fees as well as interest and things like that. So again, you know, just make sure you understand what these issues are. How they affect your workplace, and that you're putting things in policies and procedures so that it's clear. If there's ever any type of dispute over anything that you have something in writing that details that you were complying with the law.

Anthony (T.J.) Andrisano: Here's some of the remedies. Now there is cure period that is built into this. This kind of does provide employers with the ability to ensure that they're doing what they need to do. If they don't, there is the potential to recover back pay and reinstatement. So again, just be very aware of that.

I have gotten some questions before we move here on to the Pregnant Workers' Fairness Act as to, the exempt employees. Some exempt employees, for instance, in healthcare type entities, they have a certain amount of patients they're supposed to see in a particular day.

Anthony (T.J.) Andrisano: Or maybe there's sales or other types of quotas or things like that. I think it's key that this really does depend on the circumstances, but generally speaking, you don't have to change the job to comply with the Pump Act. However, you may need to accommodate, individuals. Maybe giving them additional time outside of the general working hours for your place of employment.

Maybe there's some other type of accommodation that you can help to ensure that they're getting the protection under the Pump Act. Then also still able to complete the actual requirements of their position. It's another issue spotting type thing I wanted to make sure that I pointed out there.

Anthony (T.J.) Andrisano: Pregnant Workers Fairness Act. So it's gonna provide enhanced protections for pregnant women. Currently the PDA bans discrimination on the basis of pregnancy, childbirth, or other related conditions. But it lacks any requirement that employers provide reasonable accommodations for pregnant workers.

Again, that's arguable as to whether or not that's true. I think from a specific plain language reading of the PDA, that is a true statement. I think from a practical advice standpoint, at least coming from my office, is gonna be more to take the conservative approach of trying to accommodate individuals that were in that type of situation.

It ensures that pregnant workers who work for employers with 15 or more employees, that they receive reasonable accommodations. So additional bathroom breaks, light duty, stool to sit on, if a worker stands all day.

Anthony (T.J.) Andrisano: Now they still have the undue hardship aspect of it. It goes back to the same thing I've been saying a lot, which is this interactive process, you have to engage and document that interactive process. Especially if you're gonna take the position that it is in fact, an undue hardship. The other thing I'll point out here is that a lot of times employers to address workers' compensation issues. They'll put in place some sort of a light duty type program, to get those workers into the workplace. From a worker's comp perspective, they ultimately have to be paying them anyway. You have to remember, if you're gonna put a program like that in place, with respect to those that are pregnant that might require light duty.

Light duty is something that you may have to address, given the PDA and the changes here that have been made. If you're also providing light duty to those that are on worker's comp, we see a lot of clients and companies getting in a little trouble for not making sure that they're addressing things equally. That you're not treating those who are on worker's comp more favorably than those who, who are pregnant.

As I mentioned earlier to president Biden signed the ending forced arbitration of sexual assault and sexual harassment act of 2021. It passed with bipartisan support and it amends the FAA and renders unenforceable at the claimant's option. So we are employee's option predis dispute arbitration agreements, and joint action waivers regarding sexual assault and sexual harassment disputes.

Anthony (T.J.) Andrisano: So effective December 7th at the end of last year, courts, cannot enforce a non-disclosure clause or a non-disparagement clause agreed to before a dispute arises involving sexual harassment. It essentially renders unenforceable, non-disclosure and non-disparagement clauses related to allegations of sexual assault or sexual harassment.

Even if they were entered into before, like the dispute arose. So you just need to make sure that you're aware that those types of agreements that we may have signed severance agreements are the big ones. Where you have certain quote unquote gag orders.

Now they're basically stating that those aren't. That's something that I think is extremely important for us to realize. There are other ways that you can address these types of issues.Certain language can be included in certain severance agreements or settlement agreements that are reached to ultimately try to ensure that there is some confidentiality related to those types of issues.

Anthony (T.J.) Andrisano: For instance, if you understand the releases that are generally in severance agreements they'll contain certain language with respect to wage and hour releases and things like that. Which aren't technically enforceable unless approved by a court or by an agency. Generally when you are having an employee leave and they're getting some sort of a severance, you don't look for court approval or an agency to approve it.

You do include certain language in there about them asserting, or confirming that there are no outstanding wages that they're entitled to or owed other than what's outlined in that agreement. Things like that ultimately help, should there end up being a challenge later to them receiving the wages that they're entitled to.

If they bring that suit later on, you'll not only be able to point to that release, which again may not be held enforceable, but you will be able to point to the affirmative statements and admissions that they've made. Now, is that gonna be an ironclad defense to a case like that? Maybe, maybe not.

Anthony (T.J.) Andrisano: Depends on the circumstances, but I think it's similar here when you're addressing sexual harassment or sexual assault type issues. Can you put some language in there that maybe get them to assert that these aren't issues that exist. Or they don't know any facts or circumstances like that, that exist at the time.

Just certain things that you should think about, maybe talk with an attorney. Should you think about wanting to ultimately revise or address this issue when it comes to your severance agreements. Which again, I think you need to do.

I mentioned early on that there was a recent NRB decision that's similar to this. It's the McLaren decision. Essentially they're saying that these confidentiality and non-disparagement provisions, they may violate the NLRA, which again applies to all employers, whether they have a unionized workforce or not. You need to make sure that you're also looking at your severance agreements or settlement agreements. You're taking a look at it from these recent decisions and these recent legislation that's been enacted to make sure that you're addressing them.

If not, you could find, one, yourself ultimately in a position where you violated one of these newer laws that have come out. Or two, not getting the protection that you thought you were getting. Issue spot make sure that you're looking to get these addressed.

Anthony (T.J.) Andrisano: Salary transparency laws. This is a major issue in 2023. A lot of places have remote employees now, where are they located? Are they located in an area that has a salary transparency law that's in place.

If they are, does it apply to them? What requirements do you need to have? Now that these salaries are gonna be more widely known and advertised. What is that gonna have with respect to pay equity issues with respect to your workforce? Meaning, sometimes you may have to pay a little bit more to get somebody else to come into a position where you already have two or three other employees there.

Depending on who you hire, who comes into that position, other factors including experience and things like that, do you now have to do a pay equity analysis. Potentially address the salaries of those that you have currently working for you? So this is a major issue.

Anthony (T.J.) Andrisano: Those pay equity analysis, I have said for a long time need to be done. However, now with the information out there, there's really no closed compensation anymore. If there's no closed compensation, now people are gonna know who's making what. Now these issues are gonna come to the forefront.

So you have to really take a look at these salary transparency laws, see if they're applicable to you, if they're applicable to anybody in your workforce. If so, what do you need to do to address them? Have we done a pay equity analysis to our workforce and where are we? Are we comfortable with that?

Are we comfortable that if we have, a female employee that's been working for us for quite some time. Then we bring in a male employee and we had to pay more to get that person to come over. Are we comfortable keeping the female employees, Sally, where they're at, when they're gonna be performing the same functions. If we are, well then we better have a valid reason for it considering maybe, experience or some other legitimate business factor that we have to look at.

Maybe there's additional schooling, certifications or experience just based on years of experience. So you wanna look at all those types of issues, as you're addressing salary transparency laws. Again, this should have been done for a long time. It's definitely gonna be brought to the forefront now that people are gonna know what individuals are making in certain types of positions.

New York State recently signed into law, salary transparency law. You have to put a minimum, maximum, annual salary, hourly wage, it includes internal promotions or transfers. You also must disclose the job description up front as well.

This is really just examples. But you're looking at California, Colorado, Connecticut, Maryland, New Jersey, New York, Nevada, Rhode Island. Then you can see like, Cincinnati, Ohio, Westchester County, New York, Ithaca, New York, Jersey City, New Jersey. They all are starting to get their own, city or municipality type laws that are being enacted. Sometimes you may have to comply with the New York City law as well as the overall New York law. You may have to comply with Jersey City, New Jersey's law, as well as New Jersey. You really have to look at what the requirements are.

Anthony (T.J.) Andrisano: I will tell you that most of them, seem to be the same or similar. That said, you really wanna look at each of them. And if you have remote employees, you need to find out where are they, where are they operating out of. We start talking about the remote employees labor bulletin that came out.

It's important that if you're allowing remote employees, you need to have paperwork in place. Establish, one, where they are physically located. Then two, what location of ours are they assigned to. You need to make sure that we're addressing those types of issues. There's a lot of different laws that you're gonna need to make sure that you are looking to see whether or not you need to comply with them.

Anthony (T.J.) Andrisano: Do they apply to you? One, and then two, do your standard policies, actually address them appropriately or do you need to expand upon them? If you do need to expand upon them, is that something you wanna do across your whole workforce, or are you gonna limit it to those individuals that are within the territories that have those additional protections?

So again, issues spotting, and getting ahead of these types of issues before they come to the forefront. So, key takeaways evaluate, comply with the obligations under the current crop of pay transparency laws. Then consider engaging counsel to conduct that pay equity analysis because you may have to make some modifications there.

You only need one person. So to be clear, you only need one person for a plaintiff to point to. So if you have one female employee who can point to one male employee that's making more for the same job, that's all you need to potentially sustain a claim. At that point, now the burden's gonna be on you to establish, well, why is that that male employee being paid more?

The women's National Soccer team was, in the news. They were paid less, right? For the same work. And then US Soccer came out and said, well, it's because the revenue, even though the women's team is better and has better results than the men's national team is. They get paid more from the World Cup finishes, from other types of tournaments, sponsorships, ticket sales. That's why they were ultimately getting paid less than what the men's team, whether you agree from that or not, that was the argument that they brought forth. Ultimately, and thankfully they were able to come to some sort of a resolution.Especially on a going forward basis, but also going backwards.

That highlights just a need to make sure that you're doing this pay equity audit. You're understanding what the data is, you're detecting and resolving any disparities. You want to do this before it becomes an issue. Once it becomes an issue, you have the publicity and then you have the penalties. So again, something that I think you just need to make sure you get ahead.

Also important for things that you want to do if you find yourself in a location where there's a salary transparency law, or if you want to just start getting ahead of it now. You just want to start just putting out there what these laws generally require from a minimum of maximum salary.

Develop those job descriptions, for the external applicant positions and for the internal promotion or transfer opportunities. If there are gonna be differences, let's make it so that we can see that. Maybe that there's gonna be a position one and a position two. I think the state does that for attorneys. They have like an attorney position one, then they have an attorney position two. An attorney position three. Then each of those have their own salary ranges.

Anthony (T.J.) Andrisano: So if you are going to potentially be looking to add additional positions. Does it make sense for you to potentially say, those that are in this job for periods one through four, they're gonna be getting whatever the position name is one. Then for those five through eight, they're gonna be whatever the position name is, two.

You obviously need to make sure that you're appropriately putting individuals in each of those boxes. But at least there is something there that details, okay, here's why somebody who might be in position one is getting paid less than somebody who might be in position two.

That's gotta be supported by certain job descriptions and the reality as to what those individuals are doing on a day-to-day basis. Paid sick leave statutes in 2023. I won't spend too much time going through every single element of these. The important part here is making sure that you've looked at where your employees are located and that includes the remote employees. Whether or not there's these paid sick leave laws that are applicable to you, given that you have employees in jurisdictions where they have these types of laws.

I think it's also important we'll get to in a second to realize that Pennsylvania is considering enacting one as well. Historically, having to, provide holiday pay or PTO might not necessarily be required under the law. People and companies have done that because it helps to attract talent and it's just become the norm.

Anthony (T.J.) Andrisano: Here, however, now you're looking at actually having protections for those that need paid sick leave. So you need to look at your policies. Maybe they're already comply with these, but again, issue spot. Find out where your employees are, find out if there's any additional requirements there. If so, are current policies in compliance with those?

Here's the Pennsylvania proposed sick leave law. Allegheny County is another one that we included in here because it's an enacted law. You can see some differences. It's one hour for every 30 hours work compared to one hour for every 35 hours worked. There's some differences here from employees or family members as opposed to just being existing health condition, preventative care.

There are differences between them, but if you have employees are in Allegheny County, look at the fact that this is enacted. Pennsylvania, it's something that's being proposed at this time.

Anthony (T.J.) Andrisano: Some additional changes.I'm not gonna go through each and every one. It's important just to show you that there's gonna be disparities. You really wanna look at where your employees are and then where or how many different types of laws might be applicable.

If Pennsylvania's does get enacted. Well, for those in Allegheny County, you've gotta comply with both of those laws. So that's the same in other jurisdictions as well.

Thomas Purcell: TJ, how close is Pennsylvania to enacting a law like that? I realize a lot of our surrounding states like Maryland Are we close to the finish line in that regard or is this very preliminary stages with PA implementing.

Anthony (T.J.) Andrisano: I don't know. I'd have to touch base with our government relations folks to see where we're at with it. I will tell you I can see a trend across the country of these being enacted. I would be surprised if, at this time next year and we're not seeing something close to being implemented if it hasn't already been implemented.

You never know, these things can sometimes get held up. But that said, there's a lot of bipartisan support. I do think that this is something that will be enacted at some point in the coming years.

Thomas Purcell: Yeah, I didn't know priority wise where it was with the legislation. Thank you for that. Hey, we just to give you a time update, we got about 10 minutes too.

Anthony (T.J.) Andrisano: Okay, perfect. Thank you. These are just some requirements. San Francisco, Michigan, some things that I thought were worth noting here. You can, use sick leave for any reason. Not all state localities allow leave to be utilized for time off due to reasons related to domestic or sexual violence and stalking. Some are, and I'm really seeing a lot of these states are really looking to address those issues in this type of a law as well.

If you haven't put these policies in place and these issues do come up, that should be something that should kind of say, okay, this is an issue I should look into. Maybe it's something I am required to provide to them, given it's a remote employee and where they're working at. Make sure you're keeping an ear out for these types of issues.

Anthony (T.J.) Andrisano: Here we're looking at some wage and hour division issues, field assistant bulletin that came out. The issues that were addressed in this were short breaks, longer breaks and off-duty time. The break time for pumping breast milk and privacy to pump. Telework and FMLA. It's a bulletin done by the Wage and hour division. Always look to comply with these bulletins because obviously they've felt this to be an enforcement issue. So it's something I thought was good to kind of go through just from an issue spotting perspective.

Short breaks if it's 20 minutes or less, regardless whether they're working in the office or teleworking offsite. It's something that you're gonna have to pay for longer breaks, off-duty time. If they're longer than 20 minutes, and they can do whatever they want during the break. They're completely relieved from duty, it's not gonna be considered time work that needs to be paid.

It's really important though to make sure that you have policies and procedures in place to ensure that these are being addressed. You wanna make sure that you have time reporting policies, or time reporting sheets. A lot of my clients have switched to apps. Where employees can, go in and state when they're working, when they're not working. Those types of things are all important because when you're having a remote employee, it's hard to supervise these things. So you wanna make sure that you're putting the onus on them to report the hours that are worked.

If you get to the point where you have employees that are reporting additional hours, beyond what you believe the position needs. Maybe it includes overtime hours, things like that. You ultimately are gonna have to pay those hours if they're reporting them to you. Unless you have some really valid, strong concrete proof that they weren't in fact working.

The best way to address those issues are generally going to require individuals to seek approval before permitting themselves to perform any type of overtime. If they still do it, in violation of that policy, you still have to pay for the time worked. But you can address it through a disciplinary process,because they're not complying with policies.

Remote employees, this is a bigger issue now because they're not there. You're not sure when they're working. Some people have a little bit different hours that they're working now. It's all stuff that you need to issue spot and make sure that you're addressing.

Anthony (T.J.) Andrisano: This is another question I get a lot with remote employees and those that are close to 50 employees. Well, where's their work site? They're remote, they're working all the way out in Florida. That seems to be a big one where we have people who are down in Florida, with remote employees working down there.

Where's their work site. Is that they're home for FMLApurposes? It's not. It's the place where they're get their work assignments or direction from. Some think that with the remote employees, "that's further than 75 miles, I don't have to worry about the FMLA when I get close." That's just not the case. Make sure you're looking at where everyone's working. Where they're getting their work assignments or directions when you're doing that analysis.

Anthony (T.J.) Andrisano: Practical takeaways. The obligations are FLSA absolutely remain intact. You have to exercise reasonable diligence to track the teleworkers work hours, as I mentioned. You have to create, a lactation space for breastfeeding employees, even when working away from the office.

You're gonna have to review your FMLA policies to make sure you're complying with the latest guidance on determining eligibility for remote workers. These are all things that will change and have changed recently. Make sure that you've looked at your policies and making sure you're complying with all of these changes.

This FTC proposed rule banning non-competes. A non-compete I think can be very beneficial. Especially if you have a type of business that makes sense to have somebody with a non-compete clause. Somebody that you're given access to all your confidential, trade secret type information you're given access to your clients. Things like that.

You wanna be able to protect yourself. You feel as though, you're paying for them to have access to that ultimately to perform their duty. You don't want them to ultimately leave and go somewhere. Start a competing business that ultimately goes against you and potentially harms your business. So that is something that I think Employers historically have always liked.

There's also now a thought that that may be anti-competition. Now looking at proposing a rule that's gonna ban those. It's not in place yet. March 10th, 2023 is the deadline for public comment. After final rule publication, the rule will be effective 30 days. I would imagine that at some point that's going to happen this year, which is one of the reasons why I wanted to bring this out. That would ultimately require employers to rescind existing non-compete agreements.

Anthony (T.J.) Andrisano: I can pretty much guarantee you that once this gets put in place, you're gonna have the US Chamber of Commerce challenging it. They're gonna be looking for a stay of implementing it. I would think a stay would be ultimately issued, but only time will tell. I also wanted to point that you can look at other ways to potentially protect those business interests. For instance, can you put a non-solicitation of client's provision in there? Can you put in some sort of a program in place that provides some sort of benefits later to your employees.

There's certain type of like incentive type programs that you can design that basically says, "Hey, if you don't work, for a competitor then you're gonna get some sort of payments after the fact". Where they've earned those payments or they have basically earned a potential entitlement to those payments.

We've seen programs put out there that are like that, that I think have a more of a chance of being enforced, less of a chance having, this rule effect. So if there's something that you really want to ensure that you have that protection, you should probably start talking with an attorney. Trying to game plan, what programs you can put in place to potentially protect those interests.

It's gonna be industry specific, it's gonna be really employer specific, but there are options. If that is a legitimate interest of yours it's definitely worth a conversation. So with that, I know we only have a couple minutes left. I wanna make sure that I give everybody the code here.

Anthony (T.J.) Andrisano: You wanna email Pam Mannion? You basically email her, ask her, or tell her which credits you need. Give her any of the identifying information she will require for you to ultimately be able to get credit for Sherm or HRCI. If there's any questions or anything like that, you can always feel free to reach out to her or email her.

You can also email me, reach out to me, happy to answer any questions that you may have. My contact information's in the slides here. I think you should have access to the slides, but if not, or if you need any another copy of those slides, just send me an email or give me a call and we'll get you a copy of them.

Thomas Purcell: Thank you, TJ, for everyone on the call. I did have one question. Thank you so much, man. Talk about some noteworthy content that we're reviewing for 2023 and what employers need to be watching out for. Pay transparency, the sick leave, the non-competes.

It's gonna be interesting how that all plays out. The question I had is in regards to the non-competes. So it's my understanding that those can change on a state by state basis and in Pennsylvania what's the length of the term of a non-compete contract currently before it's considered void? How often should employers be updating their non-competes and having employees sign those.

So you have to remember that your non-compete is only gonna be enforceable if there's consideration. Consideration can be done at the beginning of the relationship. So you make the offer of employment contingent on them signing a non-compete. At that time, you should have already assessed, given the position. That they're gonna have your legitimate interests and what you're looking to protect.

Then what is reasonable, right? Generally what you're gonna see, depending on the circumstances, are gonna be different time periods. Now what you can do is known as blue penciling. So you can say, "Hey, I'm gonna put a two year restriction in here. And it's gonna be a radius of say, 50 miles."

Then you put a blue pencil provision in there and says, if it turns out that this isn't reasonable in the eyes of a court, the court has the obligation at that point to put into it and read into it what is reasonable. Maybe the court will look at this and say, "Hey, given everything it really is about a year. Would make sense to protect your legitimate interest and 25 miles."

Then they ultimately would look at it from that perspective and apply it in that fashion. But you want your agreement to include the language to permit the court to do that. Once you're looking to change a non-compete, while that employee is already working for you, you run the risk of potentially having that lack of consideration argument being made.

Generally we're looking at really not doing it unless you're going to lessen it. Then you have a better argument there. What you could do is make it as part of a bonus payment that they wouldn't normally be entitled to. So then now you have that additional consideration that you can give to them for that issue.

Anthony (T.J.) Andrisano: So it really depends on the circumstances. Those are ways that you can kind of look at this from a general perspective to address what your particular needs might be.

Thomas Purcell: Thank you. It's interesting regarding the radius and length of time. I've seen non-competes anywhere from a year and a couple miles like you referred to. Up to five years and a couple miles.

It's something to be concerned about if you're an employer, for sure. Luckily we have you for that, TJ. Those are all the questions. Thank you everyone for attending. Hopefully you got some value out of this, a lot of things on the horizon for 2023. Please check out the webinars underneath the handouts and sign up for any you feel might add value.

Thomas Purcell: We're here for you if you need us. Don't hesitate to reach out to myself or TJ with any follow-up questions. I hope you're off to a great 2023 and hopefully we'll see you on the next webinar. Thanks everyone.

Thanks everyone.