Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
2021 saw state and local legislatures shifting their focus away from COVID-19 measures back to traditional employment law matters. Although two states and the District of Columbia have COVID-19 related legislation going into effect in 2022, the remainder of the country will see a more diverse array of employment legislation becoming effective in the new year.
California, Illinois, New York and Oregon were especially active this year. Undoubtedly influenced by the COVID-19 pandemic, three states and the District of Columbia passed family leave-related legislation, with California adding protected leave for the care of parents-in-law for both private and public sector employees.
On the anti-discrimination landscape, Oregon amended its anti-discrimination statute to include natural hairstyles as a protected characteristic. Certain localities in North Carolina also adopted a similar approach. In keeping with evolving theories of how to effectively distinguish independent contractors from employees, some states have introduced legislation further penalizing employers found to have misclassified their employees as independent contractors. Additionally, three states have further refined their approaches to enforcing non-compete agreements. Of note in this area is Oregon’s update that non-compete agreements longer than 12 months will be unenforceable in Oregon effective January 1, 2022.
Closing out the year, federal OSHA issued an Emergency Temporary Standard (ETS) that will require employers with 100 employees or more to ensure that all employees are vaccinated against COVID-19 or in the alternative, submit to weekly COVID-19 testing. The status of the ETS continues to evolve; visit littler.com/news-analysis for the latest updates.
Please refer to the chart below for access to summaries of several employment-related laws taking effect in the final months of 2021 and early 2022. Please note that this chart includes generally applicable laws taking effect in the noted states and some large municipalities. This is not an exhaustive list and may not necessarily include information about laws that apply to particular industries. In addition, this list does not include laws regarding minimum wage and overtime requirements. New minimum wage and overtime requirement laws are addressed in a separate Insight.
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Law |
Main Topic |
Summary |
Effective Date |
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Wage & Hour |
Reapplies the “80/20 Rule” that governs how tipped employees must be paid under the Fair Labor Standards Act (FLSA). Clarifies that an employer may take a tip credit only when an employee is performing work that is part of a tipped occupation; specifically, performing work that is tip-producing or performing work that directly supports work that is tip-producing for a limited amount of time. Work that does not directly or substantially support tip-producing activities must be paid at full minimum wage. |
12/28/2021 |
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Wage & Hour |
Clarifies several amendments to section 3(m) of the FLSA that concern tip pooling. The final rule reestablishes the DOL’s right to assess civil monetary penalties, in an amount up to $1,100 per violation, against employers that unlawfully retain employees’ tips. |
11/23/2021 |
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Government Contractors |
Directs executive agencies to begin amending federal contracts to require federal contractors to take specific actions to combat COVID-19 and to, in turn, require covered subcontractors to take the same actions. |
9/9/2021* *The deadline for complying with the executive order’s vaccine requirement is 1/18/2022. |
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COVID-19 |
Requires employers of 100 or more employees to implement a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. Medical and religious exemptions remain available to those who qualify. All covered employees must be fully vaccinated or commence weekly COVID-19 testing by January 4, 2022. Employers must obtain proof of vaccination; absent other documentation, an employer may accept an employee’s attestation (including specific elements identified in the ETS) signed under penalty of perjury. Neither vaccination nor testing records are subject to the 30-year document retention policy. Employers need only provide a reasonable amount of time away from work for vaccine side effects. *The U.S. Court of Appeals for the 5th Circuit has enjoined implementation of this rule pending further court action. |
12/6/2021*
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United States CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule
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Healthcare Industry |
Medicare- and Medicaid-participating healthcare providers and their staff must receive the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to patient or other related services on December 5, 2021. All staff must be fully vaccinated by January 4, 2022. This emergency regulation provides for exemptions from the vaccine requirement based on recognized medical conditions or religious beliefs. |
11/05/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
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Non-disparagement Contract Clauses |
Provides standards for the creation of non-disparagement agreements. Plaintiffs may recover liquidated damages for breach of a non-disparagement clause under some circumstances. |
01/01/2022 |
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COVID-19 |
Requires employers to allow religious exemptions to any vaccination mandate. |
11/05/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
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Wage Theft |
Grand Theft – Wages. Adds Section 487m to the California Penal Code. Makes the intentional theft of wages, including gratuities, by an employer in an amount greater than $950 from one employee or $2350 from two or more employees in a 12-month period punishable as grand theft. Independent contractors are also covered for purposes of this new criminal offense. |
01/01/2022 |
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Protected Time Off |
Permits the use of CFRA leave to care for a parent-in-law. Allows a respondent employer with between 5 and 19 employees in a CFRA civil action to stay the civil action or arbitration if the employee failed to initiate the alternative dispute resolution process prior to filing a civil action until the mediation is complete or impasse is reached. |
01/01/2022 |
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Criminal Background Checks |
Requires the reporting of any felony convictions and exempts only misdemeanor convictions from the requirement that certain employers notify parents or guardians that an employee with specified convictions will have supervision over a child. |
01/01/2022 |
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Independent Contractors |
Extends the applicability of the ABC test exemption to newspaper carriers until December 31, 2024. Requires newspaper publishers and distributors that directly contract newspaper carriers to submit certain information related to their workforce to the LWDA on or before March 1, 2022, 2023, and 2024. |
01/01/2022 |
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Independent Contractors |
Extends until December 31, 2024 the applicability of the ABC test exemption to specified occupations (licensed manicurists, construction trucking work performed by a CSLB licensed subcontractor performing work pursuant to a subcontract, data aggregators and research subjects, claims adjusters, third-party administrators, manufactured housing salespeople). |
01/01/2022 |
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Protected Time Off |
Extends CFRA leave for care of parents-in-law to public sector workers. |
01/01/2022 |
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Production Quotas
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Requires warehouse distribution center employers to provide written descriptions of quotas for employees upon hire; prohibits quotas that would prevent employees from complying with meal or rest periods or health and safety laws. Also requires that employee time spent on compliance with safety laws be considered productive time. Allows current and former employees to request a written description of quotas that applied or apply to that employee and a copy of the most recent 90 days of the employee’s own personal work speed data. |
01/01/2022 |
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Port Drayage Motor Carriers |
Provides financial incentives for port drayage motor carriers, and others, for switching to electric vehicles. A port drayage motor carrier must meet certain “labor standards,” including not being listed on the state’s webpage of prior offenders. |
01/01/2022 |
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Privacy: Data Security Breach Notification |
Modifies existing data security breach notifications to include genetic data under personal information. |
01/01/2022 |
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Benefits: Health Insurance |
Authorizes an association of employers to offer a large group health care service plan contract or large group health insurance policy consistent with ERISA if certain requirements are met, including being headquartered in California. |
01/01/2022 |
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Benefits: Health Insurance |
Provides requirements for multiple employer welfare arrangements to offer large group health plans, including but not limited to being headquartered in California and having been in existence prior to March 23, 2010. |
01/01/2022 |
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Nondisclosure Agreements |
Prohibits an employer from requiring an individual to sign settlement or non-disparagement agreements relating to unlawful acts in the workplace, including discrimination and harassment. |
01/01/2022 |
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Port Drayage Motor Carriers: Employer Liability |
Provides that a customer that, as part of its business, engages or uses a port drayage motor carrier may be jointly and severally liable for damages and penalties owed to a port drayage driver or to the state due to violations by the motor carrier of state employment laws. Also requires DLSE to remove the name of a port drayage motor carrier from its prior offender list within 15 business days after the carrier has paid or settled any pending judgements or other financial liabilities and that the carrier certifies under penalty of perjury that all identified violations were remedied or abated. |
01/01/2022 |
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Wage & Hour: Penalties |
Allows the Labor Commissioner to place a lien on real property to recover penalties owed for violations of the labor code. |
01/01/2022 |
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Employer Liability |
Cal/OSHA. Establishes a rebuttable presumption that a violation by an employer with multiple worksites is enterprise-wide if the employer has a written policy or procedure that violates specified occupational safety and health regulations or if DOSH has evidence of a pattern or practice of the same violation by the employer at more than one of the employer’s worksites. Under this new law, DOSH would be allowed to issue an employer-wide citation requiring abatement throughout the company if the employer fails to rebut the presumption created by this bill. Such a violation would carry the same penalties as a willful or repeat violation. |
01/01/2022 |
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Employer Liability
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Prohibits piece rate pay for most garment workers and imposes a $200 penalty per employee against garment manufacturers or contractors for each pay period where employees were paid on a piece rate basis. Imposes a 4-year record retention requirement. |
01/01/2022 |
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Disability: Subminimum Wage |
Phases out the licensing program for subminimum wages for persons with disabilities and requires that all employees with disabilities be paid no less than the state or local minimum wage by January 1, 2025. |
01/01/2022 |
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Labor Relations: PAGA Exemption |
Provides an exception to PAGA for janitorial employees, with respect to work performed under a valid collective bargaining agreement in effect any time before July 1, 2028. |
01/01/2022
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Employee Notifications |
Authorizes employers to provide required notices and postings via email. Does not change employer obligations to physically display required postings. |
01/01/2022 |
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Benefits: Health Insurance |
Authorizes an association of employers until January 1, 2026, to offer a large group health care service plan contract or large group health insurance policy consistent with ERISA to small group employer members if certain requirements are met. |
01/01/2022 |
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Employer Liability |
Amends Labor Code section 218.7 to impose joint liability on private construction contracts for a direct contractor for penalties and liquidated damages stemming from unpaid wages and benefits of the subcontractors’ employees, as well as liability for the failure of a subcontractor to make payments to the California unemployment insurance fund or for failure to provide workers’ compensation benefits. |
01/01/2022 |
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Tolling of Claims |
Tolls time for a FEHA civil action to when the DFEH files a civil action or one year after the DFEH issues a notice of closed investigation. Expands the venue provisions for class or group allegations to any county in the state. For class or group complaints, requires DFEH to issue a right to sue notice upon completion of the agency’s investigation and no later than 2 years after the filing of the initial complaint. Increases employers’ personnel records retention period from 2 to 4 years and removes the records retention exception that applied to the State Personnel Board. |
01/01/2022 |
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California: San Francisco 2022 Healthcare Expenditure Rate (Annual Announcement) |
Benefits: Health Insurance
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Raises San Francisco's health care expenditure rate to $3.30 per hour for employers with 100 or more employees and $2.20 per hour for employers with 20-99 employees. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Home Health Services |
Requires an employer to provide access to the professional license number issued by Department of Regulatory Agencies for an employee who is substantiated in a case of mistreatment of an at-risk adult. No court order is needed to grant access. |
01/01/2022 |
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Colorado: Denver Ordinance No. 21-0818
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Right of Retention
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Affords a right of retention to workers providing services under city contracts, including janitorial, airport, parking, security, and childcare workers, in the event of a contract expiration or change in control. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Unemployment Insurance |
Restructures unemployment insurance benefits and amends certain employer contributions. |
01/01/2022 |
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Employer Tax Credits |
Creates a tax credit for employers that make payments on certain student loans for full time employees working for qualifying businesses. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Protected Time Off: D.C. FMLA |
Fiscal Year 2022 Budget Support Act of 2021. Amends the Universal Paid Leave Act to increase the amount of paid leave per fiscal year to six workweeks of medical leave and two workweeks of prenatal leave; sets an operative date for the Ban on Non-Compete Agreements Amendment Act of 2020. |
Undetermined: Effective following approval by the Mayor, a 30-day period of Congressional review, and publication in the DC Register |
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Law |
Main Topic |
Summary |
Effective Date |
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Wage and Tax Statement Filing |
Amends the due date for employers to file wage and tax statements from the last day of February to January 31 following the close of the calendar year. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Benefits: 401K/Retirement/Pension
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Amends the Illinois Secure Choice Savings Program Act to apply to employers with at least five employees, rather than 25 or more employees. Includes automatic increases to contributions. |
01/01/2022
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Salary History |
Employers remain prohibited from seeking an applicant’s salary history but may provide information about compensation for the position applied to. Employers may also discuss an applicant’s salary and benefits expectations for the position during the application process. |
01/01/2022 |
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Disability Discrimination |
Provides that discrimination based on disability includes discrimination against an individual because of the individual's association with a person with a disability. |
01/01/2022 |
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Protected Time Off: Domestic Violence |
Provides victims and family members of victims of violent crimes with unpaid leave and provides that victims of violent crimes will not be barred from collecting voluntary leave benefits. |
01/01/2022 |
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Artificial Intelligence (AI) & Robotics |
Provides that an employer that relies solely upon artificial intelligence to determine whether an applicant will qualify for an in-person interview must gather and report data about the race and ethnicity of applicants who are and are not extended an opportunity for an in-person interview and race and ethnicity data for applicants who are hired. |
01/01/2022 |
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Hospitality: Human Trafficking |
Amends Illinois’ Lodging Services Human Trafficking Recognition Training Act to require restaurants and truck stops to provide employees with training in the recognition of human trafficking and protocols for reporting observed human trafficking to the appropriate authority. |
01/01/2022 |
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EEO Reporting |
Requires public corporations to report the self-identified sexual orientation and self-identified gender identity of their directors. |
01/01/2022 |
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Civil Procedure |
Provides that an individual aggrieved by a disclosure of a disciplinary report may file a complaint with the state Director of Labor or file an action in court within three years after the violation. |
01/01/2022 |
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Benefits: Health Insurance |
Provides that an employer may eliminate a child from the insurance obligor's health insurance coverage if the employer no longer provides a group health insurance plan to any employees or the child is no longer eligible for coverage due to federal or state restrictions. |
01/01/2022 |
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Non-Compete Agreements |
Amends the Illinois Freedom to Work Act, setting forth standards for the enforceability of noncompete agreements against employees. Employers shall not enter into noncompete agreements with employees who earn or are projected to earn $75,000 or less on an annualized basis. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Lactation Accommodation |
Clarifies that an employer cannot reduce an employee’s pay during lactation breaks; requires an employer to provide reasonable accommodation to an employee for health conditions related to pregnancy or childbirth. Employers shall not require employees to take leaves or accept accommodations. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Discrimination: Off-Duty Conduct |
Prohibits an employer from discriminating against an employee for the legal use of marijuana during non-working hours; does not require an employer to accommodate use of marijuana in the workplace. Does not create a cause of action against employers for wrongful discharge based on marijuana consumption. |
01/01/2022 |
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Benefits: Health Insurance |
Requires multiple employer welfare arrangements to comply with the requirements of the Mental Health Parity Act as to the provision of mental health services under these welfare plans. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Employee Misclassification |
Provides that misclassifying employees to evade payment of insurance premiums is a violation of the New Jersey Insurance Fraud Prevention Act and provides civil penalties of up to $5,000 for the first violation and discretionary criminal actions through the Attorney General’s office. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Employer Liability |
Makes general contractors jointly and severally liable for wages, benefits, or wage supplements owed by subcontractors to construction workers. Contractors and subcontractors must be able to provide payroll records for all employees providing labor on a project. Failure to timely provide records shall be grounds for a contractor to withhold payments owed to a subcontractor at any level. |
01/04/2022 |
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Whistleblower Protection |
Extends whistleblower protections to independent contractors and former employees. Clarifies that whistleblower retaliation includes actual or threatened adverse employment actions, threats against a former employee’s current or future employment, and threatening to contact immigration authorities. This amendment also protects workers who report an employer’s policy or practice if the worker reasonably believed there was a violation of the law. |
01/26/2022 |
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Privacy: Surveillance |
Requires written notice upon hiring to all employees, informing them of the types of electronic monitoring that may occur and requires employers to post the notice. |
5/7/2022 |
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New York Final Rule re Paid Family Leave Intermittent Leave (12 NYCRR 380-2.5)
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Protected Time Off: Paid FMLA |
Clarifies the number of intermittent leave days eligible employees can take. Qualifying employees that work at least 5 days a week can take a maximum of 60 days of intermittent leave per year. |
01/01/2022 |
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New York: NYC Int. No. 0339-2018
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Discrimination: Protected Classifications |
Amends the New York City Human Rights Law to add domestic workers as covered employees. |
03/13/2022 |
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New York: NYC Int. No. 2252-2021
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Labor Relations |
Requires city human services contractors to enter into labor peace agreements. This amendment covers day care, foster care, home care, health or medical services, and legal services, amongst others, under the umbrella of human services. |
11/16/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
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North Carolina: Wake County Ordinance No. 16-3697
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Discrimination: Protected Classifications |
Prohibits discrimination in employment on the basis of a protected class. Amends the definition of protected class to include gender identity, gender expression, sexual orientation, and natural hairstyle. |
02/01/2022 |
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North Carolina: Charlotte Ordinance No. 2021-115
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Discrimination: Protected Classifications |
Prohibits discrimination in employment on the basis of a protected class. Amends the definition of protected class to include gender identity, gender expression, sexual orientation, and natural hairstyle. |
01/01/2022 |
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Discrimination: Protected Classifications |
Prohibits discrimination in employment and public accommodations on the basis of a protected class. Amends the definition of protected class. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Tax Issues |
Requires employers to file an annual return to the tax commissioner if the amount to be deducted and withheld from the wages of all employees was less than $1,000, up from the previous threshold of $500. |
12/31/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
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Ohio: Cincinnati Ordinance No. 202102521
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Title III Accommodations |
Requires equal access to single-occupancy toilet facilities in places of public accommodation for all persons regardless of their sex, gender identity, physical or mental capacity, or familial status. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Oregon HB 2039
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Record Retention: Workers’ Compensation Claims |
Provides that an employer may keep records of workers' compensation claims at a location outside of Oregon if the records are available to Department of Consumer and Business Services at a location within Oregon. Shifts the responsibility for carrying workers’ compensation coverage to subcontractors if licensed as construction or landscaping contractors. |
01/01/2022 |
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Oregon HB 2420
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Statute of Limitations |
Extends the statute of limitations for filing workplace health and safety reporting retaliations to one year. |
01/01/2022
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Oregon HB 2474
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Protected Time Off |
Expands applicability of certain provisions relating to family leave to employers who employ one or more employees to include closure of child care provider or school due to public health emergency such as COVID-19. Employers may request verification of need for leave for child care purposes. |
01/01/2022 |
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Oregon HB 2935
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Discrimination: Protected Classifications |
Expands the definition of race to include natural hairstyles. This amendment does not prohibit enforcing otherwise valid dress codes as long as those dress codes do not have a disparate impact on members of a protected class. |
01/01/2022 |
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Oregon HB 3188
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Worker Classification |
Amends the definition of “worker” under Oregon’s workers’ compensation law to mean worker is any person other than an independent contractor, who provides a service for compensation. |
01/01/2022 |
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Oregon SB 169
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Non-Compete Agreements |
Clarifies the definition of a protectible interest required for an enforceable noncompete agreement. Shortens the duration of noncompete agreements to 12 months from the date of an employee’s termination. Agreements longer than 12 months are void. |
01/01/2022 |
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Oregon SB 569
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Hiring Discrimination |
Makes it an unlawful employment practice for an employer to require a valid driver’s license from either a current or prospective employee unless a driver’s license is legally required to perform an essential job function or has a legitimate business purpose. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Pennsylvania: Philadelphia Bill No. 200625
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Drug Testing |
Prohibits employers from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. This amendment does not apply to public safety, federal contractors, positions that require commercial driver’s licenses, and formal caregiver positions. |
01/01/2022
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Law |
Main Topic |
Summary |
Effective Date |
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Hospitality: Human Trafficking
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Requires all hotels to make a good-faith effort to post human trafficking awareness signage in English and any other language spoken by at least ten percent of the hotel’s workforce. Requires hotels provide all employees with human trafficking awareness training. |
01/01/2022
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Law |
Main Topic |
Summary |
Effective Date |
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Texas: DeSoto Fair Chance Ordinance
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Background Checks: Criminal |
Prohibits an employer from inquiring about an applicant's criminal history on an initial job application. Ordinance does not apply to employment positions that where criminal history must be disclosed by law. |
01/01/2022 |
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Law |
Main Topic |
Summary |
Effective Date |
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Wage & Hour: Penalties |
Allows all employees, except for highly compensated employees as defined by statute, to place liens on their employer’s real or personal property to satisfy a wage claim. |
01/01/2022 |
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Washington 2022 Non Compete Enforceability Thresholds (Annual Announcement) |
Noncompete Agreements |
Increases the noncompete enforceability threshold to account for inflation using the consumer price index. |
01/01/2022 |
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Washington Final Rule re Posting Citation and Notices (WAC 296-900-13015) |
Workplace Posters |
Extends the time period for posting a workplace safety citation to seven working days; permits an employer to post a citation electronically in addition to a workplace posting. |
12/03/2021 |
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Law |
Main Topic |
Summary |
Effective Date |
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Discrimination: COVID-19 |
Requires employers that require that employees and prospective employees be vaccinated against COVID-19 to permit a medical certification from a licensed physician or an advanced practice registered nurse or a notarized certification by the employee or prospective employee indicating that the individual’s religious beliefs prevent them from receiving the COVID-19 vaccine. |
01/18/2022 |
