May 2022 Legislative Roundup

By: Jennifer Gutenberg , Oliver Katz

California Lawmakers Propose a Four-Day Workweek

The California State Assembly introduced AB 2932, a bill that would shorten the regular workweek for California workers from 40 hours to 32 hours for businesses with 500+ California employees. If enacted, AB 2932 would require such employers to pay overtime to hourly, non-exempt workers for hours in excess of 32 per week (daily overtime for hours in excess of eight in a day would continue to apply to all employees regardless of size). The bill also prohibits reduction of existing regular rates of pay to offset the likely increase in overtime pay. The bill is in the state's Committee on Labor and Employment for review.

California Lawmakers Seek to Protect Employees’ Off-the-Job Cannabis Use

The California State Assembly introduced AB 2188, a bill that would prohibit California employers from discriminating against employees and job applicants for off-duty cannabis consumption. If enacted, the bill would make it unlawful for employers to discriminate in the hiring, promotion, termination or other conditions of employment based on a person’s cannabis use away from work, or positive test for THC in employer-mandated drug tests. The bill would not apply to the building and construction trades. The anti-discrimination provision safeguards employees who are otherwise not protected from such discrimination under the state’s marijuana laws.

Washington’s Silenced No More Act

On March 24, 2022, Washington state Governor Jay Inslee signed into law the Silenced No More Act. The Act prohibits non-disclosure and non-disparagement provisions in employment and independent contractor agreements that prevent employees from discussing unlawful conduct. The Act renders void and unenforceable similar provisions if they prevent employees from disclosing discriminatory, harassing or retaliatory conduct, wage and hour violations, and sexual assault that occurred at work or work-related events, or the existence of settlements for such conduct.

The Act does not prohibit or limit provisions in agreements that restrict disclosure of trade secrets and amounts paid in settlements of claims. The Act applies retroactively to agreements entered into at the beginning of or during employment (e.g., offer letters and confidentiality requests/NDAs). It applies prospectively to separation and settlement agreements entered with departing employees. Washington joins California as the second state to restrict the scope of such provisions.

New York City Employers Must Include the Minimum and Maximum Salaries on Job Postings by November 1, 2022

On April 28, 2022, the New York City Council amended the City’s salary transparency law to, most importantly, extend the compliance date, from May 15, 2022 to November 1, 2022, for NYC employers — defined as having four or more employees, including independent contractors — to include the salary range (or hourly wage) on job advertisements or postings. The law compels covered employers, when advertising a job, promotion or transfer opportunity, to state the position’s salary range (or hourly wage) in the advertisement. Failure to do so constitutes an unlawful discriminatory practice.

For each job, promotion or transfer position that can be or will be performed, at least in part, in New York City, the employer must include the minimum and maximum salary (or hourly wage) that it in “good faith believes at the time of the posting it would pay.” In addition, the law provides that:

  • Only current employees — and not applicants — may pursue a private right of action against employers for alleged violations of the law
  • Employers will have thirty (30) days from receipt of an initial complaint of non-compliance to amend their advertisement or posting before facing a fine from the New York City Commission of Human Rights.

Employers now have approximately six months to bring their job, promotion or transfer postings/advertisements into compliance. Employers should ensure that they document their discussions related to salary ranges or hourly wages for each position and/or job classification. If and as the City provides further guidance, Fenwick will provide timely updates.

New York Employers Must Provide Employees Notice of Electronic Monitoring

As of May 7, 2022, New York employers — defined as all employers with a place of business in the state of New York — are required to provide employees prior notice of monitoring of telephone, email and/or internet usage. Specifically, employers must provide written notice to newly hired employees and obtain their written acknowledgment of that notice, as well as post a notice in a conspicuous area in the workplace, to monitor employee telephone conversations or transmissions, email communications and transmissions, and internet usage. New York employers, however, do not need to provide notices for processes that:

  • Are designed to manage the type or volume of incoming or outgoing email, voicemail or internet usage
  • Are not targeted to monitor or intercept the electronic activities of a particular individual
  • Are performed solely for computer system maintenance and/or protection

Failure to comply may result in monetary penalties, up to $3,000 for the third offense. New York employers should review and revise their written policies and employee handbooks to ensure compliance with the law. Employers should also draft an acknowledgment form for newly hired employees to execute upon receiving notice of electronic monitoring and a notice to post in the workplace advising their employees of the same. Fenwick can assist with reviewing current policies, to ensure compliance, and drafting of all required notices and forms.

New York Establishes Workplace Sexual Harassment Hotline

On March 16, 2022, New York passed The Workplace Sexual Harassment Hotline law. The legislation creates a toll-free confidential hotline for victims of workplace sexual harassment. The New York State Division of Human Rights will maintain and staff the hotline with lawyers who will advise complainants of their legal rights. The law goes into effect on July 14, 2022.


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