The following states have compliance updates effective January 2022: Alabama, Arizona, California, Colorado, Delaware, Illinois, Louisiana, Maryland, Minnesota, New Jersey, New York, Ohio, Oregon, and Washington.
Effective January 1, 2022, under the new Alabama Non-Disparagement Obligations Act (HB 494), individuals (including employers) may enter into an agreement that includes a requirements that the parties do not disparage one another. Non-disparagement obligations can be for any agreed-to amount of time and put in any of the following:
- Written employment separation, termination, or post-employment settlement or release agreement;
- Written business relationship termination agreement; and
- Written settlement between parties to a legal dispute, at any time before, during, or after litigation.
The agreement must be in writing, signed by all parties, and supported by adequate consideration.
Effective January 1, 2022, Arizona’s minimum wage will increase to $12.80 per hour.
Effective January 1, 2022, California’s state and local minimum wages will increase. A full listing of those increases can be found here.
Executive, Administrative and/or Professional Employees: CA will have pay requirements that are: 1) changing on January 1, 2022, along with the amount the rate changes; and 2) will exceed the minimum amount employers must pay exempt executive, administrative, and professional employees under the federal Fair Labor Standards Act (FLSA).
|Jurisdiction||Weekly Salary||Monthly Salary||Annual Salary|
|Executive, Administrative & Professional|
|California (≥26 EE)||
|California (≤25 EE)||
The California Department of Industrial Relations updated the minimum hourly pay for physicians and computer software employees to qualify for the overtime exemption. The changes are as follows:
Updated Rate For Overtime Exempt Licensed Physicians and Surgeons: $91.07 per hour.
Updated Rate For Overtime Exempt Computer Software Employees: $50.00 per hour.
Effective January 1, 2022, under AB 1003, employers may be criminally charged with grand theft for “wage theft” they commit in any consecutive 12-month period that amounts to greater than $950 for one employee, or $2,350 from two or more employees. “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. Employers can also be charged with grand theft if they commit wage theft against independent contractors.
Effective January 1, 2022, under the California Family Rights Act (CFRA), eligible employees may take 12 weeks of job-protected leave per year to provide care to family members, including parents. AB 1033 expands the definition of “parent” under the CFRA to include parents-in-law. Parents-in-law are defined as the parent(s) of an employee’s spouse or domestic partner. Therefore, an employee may take leave under the CFRA to care for a parent-in-law.
Existing California employment law requires employers to use a 3-part test, commonly known as the “ABC” test, to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission.
There are some occupations, however, that are currently exempt from the ABC test. A different test, referred to as the Borello test is applicable to these exempt occupations. Effective January 1, 2022, California AB 1561 has extended the timeframe that these specified occupations may be exempt from the ABC test. Licensed manicurists, construction trucking servicers, data aggregators, claims adjusters, third-party administrators, and manufactured housing salespeople will now continue to be exempt from the ABC test through December 1, 2024.
Effective January 1, 2022,covered employers in California will need to start ensuring their quotas do not interfere with warehouse worker meal and rest period requirements, or compliance with health and safety laws. Covered employers arebusinesses, staffing agencies, and individual owners who employ 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in California who utilize quotas in their performance metrics.
Under AB 701, covered employers will need to begin providing each employee, upon hire or within 30 days of the effective date of the new law for their current workforce, a written description of each quota to which the employee is subject. An employer may not take an adverse employment action against an employee for failing to meet a quota that has not been disclosed in writing to the employee.
Current or former employees (who believes their rights have been violated due to a quota) will have the right to request one written description of the quotas to which the employee is subject and a copy of the employee’s own personal work speed data for the previous 90 days. An employer must abide by this request. If an employer discriminates, retaliates, or takes any adverse action against any employee within 90 days of the employee requesting quota information or making a complaint related to a quota, there shall be a rebuttable presumption of unlawful retaliation.
California Consumer Privacy Act (CCPA) currently requires covered employers to provide notice to employees, job applicants and independent contractors when collecting their personal information for employment, recruitment and contracting purposes. Beginning January 1, 2023, the California Privacy Rights Act (CPRA) will create data rights for California employees, job applicants, independent contractors, board members, and dependents who receive benefits through the employer (collectively referred to as “HR Individuals).
While the data rights for HR Individuals under the CPRA will not take effect until Jan. 1, 2023, the CPRA contains a 12-month lookback period where HR Individuals will be able to request information on how the company handled their personal information for the prior 12 months. This means that, commencing January 1, 2022, employers should begin preparing their human resources data so that they can respond to employees’ CPRA rights requests. This includes not just personnel files and payroll data, but key swipe records, IT requests, network logs and geolocation data.
California law currently prohibits language within a settlement agreement that bars disclosure of factual information related to an ongoing administrative or civil claim for sexual assault, sexual harassment, discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act. Effective January 1, 2022, SB 331 will expand the prohibition to apply to any claim for workplace harassment, retaliation, or discrimination based on characteristics protected under the Fair Employment and Housing Act (such as race, religion, age, disability, etc.).
SB 331 also limits the use of non-disparagement provisions in employment severance agreements. It will be considered unlawful for an employer to include in any severance agreement any provision that prohibits the disclosure of information about unlawful acts in the workplace. Employers will also be required to include a provision in their severance agreement notifying the employee that he or she has the right to at least five business days to consult with an attorney.
Effective January 1, 2022, employers will also need to ensure their agreements with employees include a specific disclaimer if the agreement includes a non-disparagement provision. A disclaimer with the following or substantially similar language would suffice: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
If an employer with multiple worksites is found by the California Division of Occupational Safety and Health (Cal/OSHA) to have a “pattern or practice” of safety violations at more than one worksite, then effective January 1, 2022, a rebuttable presumption will be created under SB 606 that the same violation exists throughout the employer’s enterprise. The same presumption will also arise if the employer has a written policy or procedure that violates a Cal/OSHA safety regulation. If the employer does not rebut this presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement. Enterprise-wide citations carry the same penalties as repeated or willful citations.
Currently employers may get permission to pay an employee with a mental or physical disability a subminimum wage by obtaining a special minimum wage license from the California Labor Commission. Effective January 1, 2022, SB 639 eliminates the ability for employers to obtain new special minimum wage licenses from the California Labor Commission after the first of the year and existing licenses will no longer be renewable after 2025. Therefore, employers must begin paying employees with disabilities the state or locality’s minimum wage (whichever is higher).
Effective January 1, 2022, in any instance in which an employer is required to physically post information in the workplace, employers will be permitted under SB 657 to also distribute that information to employees by email with the document or documents attached. Nonetheless, employers will still need to physically display required postings in the physical workplace.
Currently direct contractors in private construction contracts are not liable for penalties or liquidated damages related to unpaid wages or benefits owed to employees of subcontractors. Effective January 1, 2022, that protection will go out the window as SB 727 will impose joint liability on a direct contractor for penalties and liquidated damages, as well as liability for a subcontractor’s failure to make payments to the California unemployment insurance fund or failure to provide workers’ compensation benefits.
Under current law, California employers are required to maintain personnel records for two years. Effective January 1, 2022, this requirement has now been lengthened to four years by SB 807. Where litigation has been filed, such records must be maintained until the applicable statute of limitations has run, or until the conclusion of the litigation, whichever occurs later.
Colorado’s wage protection rules have been revised to prohibit forfeiture of Paid Time Off. The Rules expand the definition of vacation pay to include any paid time off usable at the employee’s discretion. A Colorado Supreme Court decision earlier this year confirmed that vacation pay is payable at termination and that any agreement that forfeits earned vacation pay is void. Employers are not required to provide vacation pay and may place maximums on how much time an employee earns or is awarded. However, once the time is earned or awarded to the employee, it may not be forfeited.
The revised Wage Protection Rules also provide additional information on the Healthy Families & Workplace Act’s calculation of regular rate of pay, use of time for “on call” employees, the amount of time that should be used for an indeterminate shift, and recordkeeping requirements.
Order #38 creates another exemption from the state’s pay requirements for highly compensated employees while eliminating other job-specific exemptions, provides two options for determining the regular rate of pay for an employee that works multiple jobs at different hourly rates, clarifies the penalty for missed rest periods, entitles agricultural workers to minimum wage and overtime pay in certain circumstances, and carves out the minimum wage and threshold amounts into the 2022 Publication And Yearly Calculation of Adjusted Labor Compensation Order (“PAY CALC Order”). The required COMPS poster for the current year has not yet been released.
On July 19, 2021, Delaware Governor Jim Carney signed legislation (SB 15) to gradually increase the state’s minimum wage to:
- $10.50 per hour effective January 1, 2022;
- $11.75 per hour effective January 1, 2023;
- $13.25 per hour effective January 1, 2024; and
- $15.00 per hour effective January 1, 2025.
- The law also provides that the federal minimum wage rate applies if it ever exceeds the state’s minimum wage.
The Artificial Intelligence Video Interview Act has been amended to require employers in IL who rely solely upon an artificial intelligence analysis of a video interview to determine whether an applicant will be selected for an in-person interview to collect and report the race and ethnicity data of applicants who are hired and those who are not given the opportunity for an in-person interview. The data must be reported to the Department of Economic Opportunity annually by December 31.
The Equal Pay Act of 2003 has been amended to allow an employer to request that an applicant verify by letter or document the amount of any unvested equity or deferred compensation that would be forfeited or cancelled by an applicant’s resignation from their current employer when the applicant voluntarily discloses the forfeiture or cancellation without prompting.
The Illinois Human Rights Act has been amended to prohibit discrimination based on individual’s association with a person with a disability discrimination.
The Victims’ Economic Security and Safety Act has been amended to permit leave for any crime of violence, which includes sex offenses, assault, harassment, and obscene communication, armed violence, and other crimes. The Act’s definition of family member is also expanded to include a party to a civil union, grandparents, grandchildren, siblings, or “any other individual whose close association with the employee is the equivalent of a family relationship as determined by the employee.” Additionally, employees may now choose the type of documentation that they submit to certify the need for leave and are not required to provide such documentation more than once in a 12-month period if the reason for the leave is related to the same incident or perpetrator of violence. Lastly, a confidentiality provision has been added to require that all information and documentation related to the employee’s leave request be kept in the strictest confidence except when the employee requests or consents or when a federal or state law requires.
The Illinois Freedom to Work Act has been amended to prohibit non-competition agreements with employees earning $75,000 or less, and non-solicitation covenants with employees earning $45,000 or less. The annualized earning thresholds increase periodically, beginning in 2027. The amendments will apply to all agreements entered on or after January 1, 2022.
Non-competition and non-solicitation agreements will be illegal and void unless they meet each of the following requirements: (1) The employee receives adequate consideration; (2) The covenant is ancillary to a valid employment relationship; (3) The covenant is no greater than is required for the protection of a legitimate business interest of the employer; (4) The covenant does not impose an undue hardship on the employee; and (5) The covenant is not injurious to the public.
Before entering non-competition or non-solicitation agreements with employees, employers must: (1) Provide at least 14 calendar days to review the restrictions, although employees can elect to sign them before that period; and (2) Inform employees in writing that they can consult with an attorney before entering the agreement. The new law also creates new penalties by allowing mandatory attorneys’ fees rights for an employee who prevails against an employer, and the law authorizes the Illinois Attorney General to investigate any instances of a “pattern and practice” prohibited by the Bill.
The Illinois Attorney General may impose a civil penalty of $5,000 per violation or $10,000 for each repeat violation within a 5-year period.
The Illinois Secure Choice Savings Program Act has been amended to apply to employers with five (5) or more employees who have been in business for at least two years and who do not offer a qualified retirement plan. The Act previously applied to employers with twenty-five (25) or more employees and requires covered employers to deduct a minimum of five (5)% of employees’ pay and remit it to the Illinois Secure Choice Savings Program. Employers with 15-25 employees will have until September 1, 2022 to enroll in the program and employers with 5-15 employees will have until September 1, 2023.
The amendments also implement annual increases for a minimum 10% contribution, allow for notice to be provided electronically, provide employers with 120 days to protest proposed penalties instead of 90 days, and revise the penalty for the second year of noncompliance to be for a non-consecutive year.
The Lodging Services Human Trafficking Recognition Training Act has been amended to require that restaurants and truck stops provide employees with training in the recognition of human trafficking and protocols for reporting observed human trafficking to the appropriate authority. Employees must complete the training within 6 months of employment and every 2 years thereafter. The Act previously applied to lodging establishments only. The Illinois Department of Human Services’ training curriculum can be found here. The department has not updated it’s training curriculum with information specific to restaurants or truck stops and has not indicated if or when it will update the curriculum.
Effective January 2, 2022, Employers may apply for the Fresh Start Proper Worker Classification Initiative. This program allows voluntary participants to treat their workers, who were classified as independent contractors, as employees for future tax periods. By participating, taxpayers aren’t liable for any withholding tax, unemployment tax, interest, or penalties for any amounts they paid to any workers before they were accepted into the initiative. By entering the initiative, it is essentially a fresh start for taxpayers who have been classifying their workers as nonemployees or independent contractors and want to treat them as employees in the future.
If interested, taxpayers must apply for the initiative between January 1, 2022, and December 31, 2022, have a certificate of proof of workers’ compensation coverage for the employee, and enter a closing agreement with the Louisiana Workforce Commission and the Louisiana Department of Revenue. The taxpayer must also have consistently treated the workers for the previous three years as nonemployees and filed any required Forms 1099-NEC with the IRS for those workers, consistent with the nonemployee treatment. If employers are currently being audited or are in court because of an audit by a state or federal entity for how they’ve classified their workers, those employers are not eligible to participate.
The new law also created the Louisiana Voluntary Disclosure Program (VPD) so employers can report their undisclosed liabilities for withholding taxes and unemployment taxes, which would have been due for their workers who were not correctly classified as employees. The VPD authorizes taxpayers to anonymously enter into agreements and voluntarily pay taxes with no penalty. To be admitted, employers must obtain and produce a certificate proving that they obtained workers’ compensation coverage for their employees.
For more information, see the full text at SB 244.
|Jurisdiction||Minimum Wage||Minimum Cash Wage||Maximum Tip Credit|
|Maryland (≤14 Employees)||
Effective January 1, 2022, Minnesota’s minimum wage will increase to $10.33 per hour for large employers and $8.42 per hour for small employers.
- A large employer is an enterprise with an annual gross volume of sales made or business done of no less than $500,000, exclusive of excise taxes at the retail level that are separately stated and covered by specific sections of the Minnesota Fair Labor Standards Act.
- A small employer is an entity similar to a large employer but with an annual gross volume of sales made or business done of less than $500,000.
Effective January 1, 2022, SB 9 amends Minnesota’s existing Nursing Mothers, Lactating Employees, and Pregnancy Accommodations statute. The amendment prohibits employers from reducing an employee’s compensation for time used for the purpose of expressing breast milk. The existing law and this amendment impact employers with fifteen or more employees within the state of Minnesota.
The New Jersey Insurance Fraud Prevention Act has been amended to prohibit knowingly failing to properly classify employees to evade payment of insurance benefits or premiums. Penalties begin at $5,000 for a first violation and increase to $10,000 for a second violation and $15,000 for subsequent violations.
Minimum Wage Updates Effective December 31, 2021
- New York State: $13.20; Fast Food Workers $15.00; Service Employees $11.00; Food ServiceWorkers $8.80;Salary Threshold $990/wk.
- Westchester, Nassau, & Suffolk Counties: $15.00 (Includes Fast Food Workers);Service employees $12.50; Food ServiceWorkers $10.00;Salary Threshold $1,125.00/wk.
Effective January 26, 2022, New York’s whistleblower law will expand. The law, as codified in Labor Law Section 740, has provided narrow whistleblower rights, prohibiting retaliation only against employees who complained of practices that actually constitute a “substantial and specific danger to the public health or safety.” Effective January 26, 2022, New York has extended whistleblower protections in 3 ways: (1) it will now protect independent contractors and former employees. (2) it will protect workers who report an employer’s policy or practice even if the conduct of the employer does not constitute a public health or safety risk. The employee need only reasonably believe that the conduct violated thew law or constitutes such a risk; (3) 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.
On November 23, 2021, the New York City Council amended its Earned Safe and Sick Time Act to require all private sector employers to provide their employees with four hours of paid COVID-19 child vaccination leave for each of their children, per vaccine injection. The amendment requires private employers covered to provide paid leave to employees who (a) accompany their children to COVID-19 vaccine injections and/or (b) care for such a child who is experiencing temporary side effects from a COVID-19 vaccine injection. The law does not distinguish between COVID-19 vaccine injections as part of a primary vaccination series and COVID-19 vaccination “booster” shots. The child must be under the age of 18 or the child must otherwise be incapable of self-care by reason of mental or physical disability.
At this time, the Act is pending the mayor’s signature. If signed, employees can request the laid leave retroactively to November 2, 2021.
Effective January 1, 2022, Businesses in the city of Cincinnati will be required to provide 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. Any employers who have a single-occupancy restroom open to the public, like restaurants and other private businesses, must make the bathrooms available for use by anyone regardless of sex, gender, identity, physical or mental capacity, or family status.
Place of public accommodation shall mean any inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, or other place for the sale of merchandise, or any other place of public accommodation or amusement where the accommodation, advantages, facilities, or privileges thereof are available to the public. “Place of public accommodation” does not mean a benevolent corporation, or a religious corporation incorporated as such under the laws of Ohio.
Single-occupancy restroom means a fully enclosed room, with a locking mechanism controlled by the user, containing no more than one sink, one toilet, and one urinal.
Effective January 1, 2022, HB 3188 amends the definition of “worker” under Oregon’s workers’ compensation law. “Worker” is defined to mean any person other than an independent contractor, who provides a service for compensation.
Effective January 1, 2022, the Oregon Family Leave Act (OFLA) is expanded to allow all employees of covered employers to take leave during a public health emergency, unless they worked:
- Fewer than 30 days before the leave would start; or
- Fewer than 25 hours per week on average in the 30 days immediately before the leave would start.
The expanded law also allows for employees to take OFLA leave when they need to care for their child who is at home when the child’s school or childcare provider closes due to a public health emergency. Employers can request that employees provide verification of this need for leave and ask for the following:
- Name of child who needs home care;
- Name of school or childcare that closed;
- Employee statement that no other family member of the child is willing and able to care for them; and
- Employee statement that special circumstances exist requiring them to provide home care for their child during the day, if the child is older than 14.
Read the full text here, to learn more about additional employee eligibility terms, explanation of how the leave is counted against the total OFLA allowance, and an employee’s right to have OFLA qualifying hours restored to them when they’re re-employed by the same employer.
Effective January 1, 2022, employers are prohibited from:
- Requiring, as a condition for employment or continuing it, that an employee or prospective employee have or present a valid driver license unless the ability to legally drive is an essential function of the job or is related to a legitimate business purpose.
- Refusing to accept from an employee or prospective employee, as an alternative to a driver license, any other identification documents from the United States Citizenship and Immigration Services and are used for verifying the identity and employment authorization of individuals hired for employment in the United States.
- However, employers may accept a driver license as identification that an employee or prospective employee voluntarily offers.
Read the full text of the new law here.
Effective January 1, 2022, employee protections against workplace discrimination are expanded to prohibit discrimination based on hairstyle. Employers can’t discriminate based on race, and the definition of race is expanded to include physical characteristics that are historically associated with race, including natural hair, hair texture, hair type, and protective hairstyles such as braids (regardless of whether they’re from extensions or styled with adornments), locs, and twists.
The law also prohibits employers from enforcing a dress code or policy that disproportionately and negatively impacts persons of any protected class, which under Oregon law are race, color, religion, sex, sexual orientation, national origin, or marital status. Read the full text of the law here. .
|Jurisdiction||Minimum Wage||Minimum Cash Wage||Maximum Tip Credit|
Same as MW|
|SeaTac (Hospitality & Transportation)||
Same as MW|
|Seattle (Sch. 1 Minimum Wage)||
Same as MW|
|Seattle (Sch. 2 Minimum Wage)||
Same as MW|
|Seattle (Sch. 2 Minimum Hourly Compensation)||
Same as MW|
Executive, Administrative and/or Professional Employees: WA will have pay requirements that are: 1) changing on January 1, 2022, along with the amount the rate changes; and 2) will exceed the minimum amount employers must pay exempt executive, administrative, and professional employees under the federal Fair Labor Standards Act (FLSA).
|Jurisdiction||Weekly Salary||Monthly Salary||Annual Salary|
|Executive, Administrative & Professional|
|Washington (≥51 EE)||
|Washington (≤50 EE)||
Effective January 1, 2022, only employees or independent contractors who earn more than the thresholds established by law can be held to non-competition agreements. If an employee or independent contractor has earnings less than the threshold specified under law, the non-compete agreement is considered void and unenforceable under RCW 49.62. As a result of inflation, the new threshold for employees will be $107,301.04.