5 Employment Law Changes to Anticipate in 2022
HR pros should always strive to be proactive. That includes an openness to change and a readiness to adapt. Of course, compliance dates and regulations are updated every year, but federal and state governments are also busy considering new rules for a changing workforce.
Here are five updates that federal and state governments are considering and that HR and employers should follow in 2022.
Anticipated Changes from the Biden Administration in 2022
In his first year in office, President Biden has announced two far-reaching initiatives that will impact employers and HR in 2022:
1. Executive Order on Promoting Competition in the American Economy:
In early July 2021, President Biden issued an executive order designed to promote competition and economic growth in the US. According to the White House, the directive seeks to “lower prices for families, increase wages for workers, and promote innovation and even faster economic growth.”
The executive order includes 72 initiatives across federal agencies and focuses on seven industries:
1. Labor Markets, including banning and limiting non-compete agreements, eliminating unnecessary occupational licensing restrictions, and strengthening antitrust guidance
2. Healthcare, including increasing access to high-quality, affordable care, prescription drugs, hearing aids, hospitals, and health insurance
3. Transportation, including issuing clearer rules for airline policies, refunds, and fees
4. Agriculture, including regulating meat processors and equipment manufacturers more closely
5. Internet Service, including increasing regulations for broadband providers
6. Technology, including restricting mergers and acquisitions in Big Tech and protecting consumer privacy
7. Banking and Finance, including updating guidelines on banking mergers
It’s important to note that many of these initiatives are still in the process of being developed into final rules and have not yet become law. Still, employers and HR should anticipate these changes and watch for more details to be published over the next year.
2. Federal Vaccine Mandate:
In early September 2021, President Biden announced a federal COVID vaccine mandate. This took the form of an executive order for all federal agencies, most federal contractors, and healthcare providers who accept Medicare/Medicaid reimbursement.
He also directed the Occupational Safety and Health Administration (OSHA) to draft an emergency temporary standard (ETS) for private employers, and in early November, OSHA made the details public.
OSHA’s ETS would require private employers with 100 or more employees to implement and enforce a policy mandating COVID vaccination or weekly testing and masking for workers who remain unvaccinated. Initially, employers would have been required to begin compliance by December 5.
However, in response to a federal circuit court order, OSHA has indefinitely suspended implementation and enforcement of the ETS, “pending future developments in the litigation.” A court date for the consolidated cases challenging the ETS has not yet been scheduled.
But whatever the outcome, legal experts anticipate that the decision will “almost certainly be appealed to the US Supreme Court” and advise employers to “familiarize themselves with the ETS requirements and plan accordingly.”
Clearly, there’s much more to come regarding the details of Biden’s labor and business agenda.
Federal and State Legislative Action to Follow in 2022
In mid-April 2021, the US House of Representatives passed the Paycheck Fairness Act—which, among other requirements, is designed to address the gender pay gap by placing the burden of proof for job-related pay disparities on employers. The bill was filibustered in the Senate in June But it has been introduced in every congressional session since 1997, so employers and HR should expect these equal pay efforts to continue.
Of course, not all change flows from the top down. For example, all but one state—Mississippi—has at least some level of equal pay protections for workers.
Similarly, employers and HR can anticipate some changes to federal law by taking a look at changes that are already trending at the state level. Here are three areas of labor law to watch:
3. Anti-Harassment Training:
Currently, employer-provided anti-harassment training is only required by law in six states—Maine, Connecticut, California, Delaware, Illinois, and New York—with the last four taking action just since 2019. Fourteen other states—Colorado, Florida, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Ohio, Oklahoma, Rhode Island, Tennessee, Utah, Vermont, and Wisconsin—strongly “encourage” employers to provide anti-harassment training.
In other words, while it is true that less than half of states “require” or “encourage” anti-harassment training, employers and HR should note that most of these changes have been very recent and appear to be spreading quickly.
4. Ban-the-Box Laws:
“Ban the box” refers to removing the criminal history checkbox on employment applications. This anti-discrimination effort prevents employers from considering a candidate’s criminal record till after an offer is made.
These laws do not mean that HR and hiring managers must unwittingly hire candidates with a criminal record; instead, they emphasize that employers must decide whether or not to offer a job based on a candidate’s qualifications before considering any arrest or conviction record.
Currently, 37 states have passed ban-the-box laws along with many more local governments in states without those protections. At the federal level, a ban-the-box law for all employers was introduced in the House in early March, and another—which only applies to government agencies and contractors—goes into effect in December 2021. Employers and HR should expect more legislatures to consider ban-the-box bills in the coming year.5. Minimum Wage:
The federal minimum wage is currently $7.25 an hour, but 30 states have already implemented a higher minimum wage. In 2020, Florida voters chose to eventually raise the state’s minimum wage to $15 an hour—the first in the nation—with step increases that began in 2021.
For years, labor activists have sought a $15-an-hour federal minimum wage, and in 2021, they got one step closer. In April, President Biden signed an executive order increasing the minimum wage for federal contractors to $15 an hour, starting January 30, 2022.
Similar efforts by Senate Democrats to expand the minimum-wage increase to all employers have been less successful. Still, employers and HR should expect the national minimum wage debate to continue into 2022.
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