2022 Rings in New Compliance Requirements for Employers

Compliance protects both employees and employers in the workplace. It helps protect workers from discrimination, harassment, and exploitation — and businesses from lawsuits and other penalties.

With 2022 here, there are some new changes in state law. Standards for non-disparagement agreements, broader use of exemptions against vaccine mandates, and increases in the minimum wage are some of the changes that have arrived.

Non-disparagement agreements

An Alabama law that provides standards for the creation of non-disparagement agreements went into effect on January 1, 2022. One legal expert has described the law as the “first of its kind in the nation.”

Alabama’s “Non-Disparagement Obligations Act” applies to a broad range of agreements, including contracts with employees.

The agreement must be in writing, signed by all parties and supported by adequate consideration.

A disparaging statement, among other things:

• Discredits or detracts from the reputation of a person’s product, services or business, or
• Raises doubts about the quality or character of a person or the person’s affiliations, or
• Diminishes a person by comparisons to anything “scandalous, criminal or loathsome,” or
• Is knowingly or recklessly made by a party that has “clear” information that the statement was “plainly false or misleading” and that the communication of the misleading information would cause specific loss

Defenses to such claims include the disparaging statement was:

• Made in good faith
• Made by mistake
• Caused no harm to the plaintiff
• Retracted in a way that eliminates or reduces the harm to the plaintiff

People can make disparaging statements orally or in writing. They can deliver statements through websites, blogs, Internet postings, emails, texts, or any other electronic means. The statements can be made publicly or privately in one’s own name, anonymously or using a pseudonym.

The new law’s protections can be waived through an express disclaimer. The governor signed the bill into law in August 2021.

A California law that prohibits employers from requiring that individuals sign non-disparagement or settlement agreements relating to unlawful acts in the workplace went into effect January 1, 2022. The law is an expansion of the state’s limitations on non-disclosure provisions in agreements resolving bias and harassment claims.

Vaccine exemptions

While it looks like the legal battle over President Joe Biden’s large employee “vaccine-or-test” mandate is heading to the U.S. Supreme Court, several states have approved rules in a related area: exemptions.

Public and private sector employers in West Virginia cannot discriminate against current or prospective employees for taking advantage of exemption rights against COVID-19 compulsory immunization, according to an amendment approved by West Virginia lawmakers. The new law goes into effect on January 18, 2022.

The amendment clarifies that prospective and current employees only have to provide a notarized statement that they have religious beliefs which prevent the individual from getting a COVID-19 vaccine shot.

A medical exemption requires the signature of a physician or an advanced practice registered nurse.

The bill passed in October 2021.

While it looks like the legal battle over President Joe Biden’s large employee “vaccine-or-test” mandate is heading to the U.S. Supreme Court, several states have approved rules in a related area: exemptions.

States rush to impose exemptions from vaccine mandates

Other states also broadened exemptions to mandatory vaccination policies in late 2021.

Kansas Gov. Laura Kelly approved a law on November 23 limiting workplace COVID-19 vaccine mandates. The new law took effect immediately.

Employers who implement a COVID-19 vaccine requirement must exempt an employee, without retaliation, if the employee submits a written request to the employer stating that complying with the requirement would:

• Endanger the life or health of the employee or an individual residing with the employee; or
• Violate the employee’s “sincerely held” religious beliefs of the employee.

A doctor or similar healthcare professional must write the request for a medical exemption.

The request for a religious exemption does not require the signature of a spiritual leader. It only needs to include a written statement by the employee. Employers are directed to grant the exemption without looking into the sincerity of the request.

Employers can receive civil penalties up to $10,000 per violation for an employer with fewer than 100 employees or $50,000 per violation for an employer with 100 or more employees.

Alabama lawmakers approved a law that requires employers to allow medical and religious exemptions to COVID-19 vaccine mandates. The bill took effect on November 5, 2021.

Employers have to provide the required form to all employees along with directions for submitting the document. The exemption request must be “liberally construed” in favor of the employee, according to the statute.

The employee and, if applicable, a healthcare provider must sign the form.

If the employer denies the request, the employee can file an appeal with the state’s Labor Department. Employers have to provide information on how to file an appeal.

The new law also forbids employers from taking “consequential action” against an individual who requests an exemption.

Criminal history

Lawmakers in DeSoto, Texas passed a “Fair Chance Hiring” law that went into effect on January 1, 2022. The ordinance forbids employers from asking about an applicant’s criminal history on the initial job application.

The law applies to DeSoto businesses with fifteen or more employees that are not a non-profit 501(c) organization, state agency or a governmental body.

“Covered workers” has a broad definition and includes:

• Full or part-time work
• Temporary or seasonal workers
• Contingent workers
• Interns
• Apprentices

However, an individualized assessment of the worker’s criminal history that leads to the conclusion that the worker is unsuitable for the job is allowed.

The law does not apply to jobs where it’s a requirement to disclose criminal history. Employers can receive fines up to $500 for each violation.

People with a criminal history face “pervasive discrimination” in employment, housing, and other areas and that lack of employment is a key factor in recidivism.

The city council noted in the legislation that people with a criminal history face “pervasive discrimination” in employment, housing, and other areas and that lack of employment is a key factor in recidivism.

The passage of the ordinance continues the trend of cities and states approving legislation aimed at providing employment opportunities for those with criminal histories.

Salary history

Illinois lawmakers amended the state’s salary history prohibition to provide that information concerning unvested equity or deferred compensation may be discussed. The measure went into effect January 1, 2022. The governor signed the amendment to the existing employer ban on salary history in August 2021.

Non-compete agreements

The monetary thresholds for enforcing non-compete agreements in Washington state has been increased in 2022 to account for inflation. There are two thresholds — one for employees and one for independent contractors. The figure rises from $101,390.00 to $107,301 for employees. The figure rises from $253,474 to $268,252 for independent contractors. The new figures went into effect on January 1, 2022.

Personnel record retention requirement

California employers must maintain personnel records for 2 years under current law. Beginning January 1, 2022, employees must hold on to the records for 4 years. If a lawsuit has been filed, then records must be maintained until the statute of limitations has expired or until the litigation has been concluded — whichever occurs later.

Wage theft

Golden State lawmakers have amended their existing law on wage theft. As of January 1, intentional theft of wages, including gratuities and benefits, that amounts to more than $950 from one employee or $2,350 altogether from two or more employees over 12 months will be classified as grand theft. Previously, the actions were classified as misdemeanors.

Employers can also receive a charge for grand theft if they commit wage theft against independent contractors.

“Wage theft” by an employer is the intentional, illegal deprivation of wages, tips, benefits, or other compensation with the knowledge that they are legally due to the employee.

Unused vacation pay requirements

Updated wage protection rules for Colorado employers state that employers must pay out any accrued and unused paid time off or vacation hours. That does not include leave for bereavement or jury duty. The requirement went into effect on January 1, 2022.

Lien on employers’ real and personal property

Employees in Washington state will be allowed to place liens on their employer’s real or personal property to satisfy a wage claim as of January 1, 2022.

In a similar move, California’s Labor Commissioner has been granted authority to obtain a lien on real property for any wage and hour award made against an employer as of January 1, 2022.

Misclassifying employees

Misclassifying workers to evade insurance premiums is a violation of the New Jersey Insurance Fraud Protection Act, according to New Jersey legislation that went into effect on January 1, 2022. Employers can receive civil penalties up to $5,000 for the first violation.

Demographic Gov. Phil Murphy said worker misclassification has been a longstanding priority of his administration. A “Misclassification Task Force” began shortly into his tenure to determine the scope of the problem and propose measures for its elimination. The task force has led to stiffer penalties and new enforcement tools to tackle misclassification, Murphy’s office said.

Employer credit for student loan payments

As of January 1, 2022, Connecticut employers who make direct payments on employees’ student loans can claim a tax credit.

Minimum wage

While the federal minimum wage hasn’t changed since 2009, the minimum wage increased in 21 states and 35 cities and counties on January 1, 2022, according to the National Employment Law Project. Later in 2022, 4 additional states and 22 local jurisdictions will also increase their wage floor, NELP said.