Noteworthy Employment Laws in Effect in 2023

Employers should be aware of two new laws, effective 2023:

1.   Pregnancy Workers Fairness Act (PWFA)

Pregnancy discrimination is currently prohibited under 1.) the Pregnancy Discrimination Act (PDA), which modified Title VII of the Civil Rights Act of 1964, and 2.) under the Americans with Disabilities Act (ADA). The PDA requires covered employers to treat employees affected by pregnancy, childbirth or related conditions the same as other similarly situated employees. The ADA, in turn, requires employers to provide reasonable accommodations for certain conditions that qualify as a disability and are related to pregnancy, though it does not require any accommodation for many common pregnancy-related conditions that do not qualify as a disability. The PWFA adds an additional layer of protections to cover those pregnancy-related conditions that are not covered under the ADA. 

The PWFA applies to employers with 15 or more employees, goes into effect June 27, 2023, and requires covered employers to provide reasonable accommodations for “the known limitations related to pregnancy, childbirth and related medical conditions of a qualified employee.” Like the ADA, the standard applies “unless [a] covered entity demonstrates that the accommodation would impose an undue hardship on the operation of the business.” The PWFA specifically prohibits employers from the following:

·        Requiring a covered employee to accept an accommodation other than a “reasonable accommodation arrived at through the interactive process”

·        Requiring covered employees to take leave when another reasonable accommodation could instead be provided 

·        Denying “employment opportunities” to covered employees “based on the need” to “make reasonable accommodations”

·        Taking adverse actions against covered employees requesting reasonable accommodations

·        Retaliating against any employee for reporting or opposing unlawful discrimination under PWFA

Employers should take steps now to ensure they will be in compliance with the PWFA on the effective date by doing the following:

·        Train supervisors and HR professionals on the PWFA, including recognizing potential requests for accommodation

·        Review and update accommodation policies to comply with the PWFA

·        Analyze accommodations the employer could potentially provide to pregnant employees for common pregnancy related issues

2. Utah’s Mobile Workforce Income Tax Amendments

S.B. 39 was passed during the 2022 legislative session and addresses the tax and withholding for a non-resident employee earning wages inside Utah. The law went into effect on Jan.1, 2023, and provides an exemption from state tax for nonresidents who meet certain qualifications and who work in the state of Utah for 20 or fewer days during a taxable year. The law also modifies employers’ withholding obligations for a qualifying nonresident.                             

Federal Trade Commission (FTC) Public Comment Period for Proposed Rule to Ban Noncompete Clauses Open Through April 19

On Jan. 5, 2023, the Federal Trade Commission (FTC) announced a proposed rule banning non-competes. The proposed rule is retroactive and would do the following:

·        Completely ban non-competes for employees, independent contractors and anyone else who works for a company, paid or unpaid

·        Completely ban “de-facto” non-competes, including overly broad non-disclosure agreements and overly broad provisions requiring repayment for training costs if employment terminates within a certain time period 

·        Require rescission of all existing non-competes

·        Require notice of rescission to current and former workers subject to a non-compete

·        Supersede any inconsistent state law

·        Not apply in connection to the sale of a business, under certain circumstances

The public comment period on the rule goes through April 19, 2023. Although there is no anticipated date for the final rule, if enacted, the rule would go into effect 60 days after the publication of the final rule, and there would be a 180-day compliance period during which employers would be allowed to work towards compliance. For many employers, that time period will provide enough time for compliance. Employers who extensively utilize non-competes or provisions the FTC would consider de-facto non-competes may want to identify all current and former employees, contractors or other workers who are subject to a non-compete in preparation for the FTC’s rule.

Time to Brush Up on Child Labor Laws Before Summer Hiring

The United States Department of Labor (DOL) continues its heightened enforcement of federal child labor laws. Last year, the DOL’s Southwest region released a memo in anticipation of summer hiring and reminded Salt Lake City-area employers of their obligations vis-à-vis child labor. The DOL’s investigation and enforcement efforts continue into this year. Last month, the DOL assessed fines of nearly $14,000 against the Utah based companies Sodalicious and nearly $17,000 against Utah based Standard Restaurant Supply for child labor law violations. The DOL’s intensified investigation and enforcement will continue into the late spring and summer. Utah based employers should refresh their understanding of the basics of FLSA provisions regarding child labor:

·        No employees under the age of 14 in a non-agricultural setting.

·        No working during school hours for 14- to 15-year-olds.

·        No more than three hours of work on a school day, including Friday.

·        No more than 18 hours of work per week when school is in session.

·        No more than 8 hours of work per day when school is not in session.

·        No more than 40 hours of work per week when school is not in session.

·        No working before 7 a.m. or after 7 p.m. on any day, except during June 1, through Labor Day, when working hours can be extended to 9 p.m.   

Note that many Utah schools are in session into June. Companies who employ minors should pay particular attention to their working hours to ensure they are not running afoul of labor laws.