This year saw quite a few changes and updates in several areas of employment law at both the state and federal levels. Here’s a quick recap of some of the larger highlights from 2024 to help employers ensure they comply as we head into the new year and adopt any necessary procedure or policy changes.
Artificial Intelligence in the Workplace
The Department of Labor (DOL) introduced a set of principles for employers working with artificial intelligence (AI) to protect workers from discrimination or obsolescence. According to the new principles, employers using AI systems should:
- Ensure AI systems in use are designed and developed in a manner that protects workers.
- Set up governance systems and procedures with human oversight.
- Be transparent with workers and prospective workers about the AI systems used in the workplace.
- Employ AI systems that do not violate or undermine workers’ rights to organize or endanger their health, safety, and wage rights, or violate any established anti-discrimination or anti-retaliation protections.
- Employ AI systems that assist workers by complementing their job tasks and/or improving their overall job quality.
- Support workers with job transitions due to AI adoption and provide upskill assistance and resources.
- Responsibly use worker data created or collected by AI systems, which should be limited in scope and location and used to support legitimate business aims.
- Protect and safeguard all worker data created and collected by AI systems.
Immigration – Permanent Resident Card Extension
Effective September 10, 2024, the U.S. Citizenship and Immigration Services (USCIS) increased to 36 months the validity of Permanent Resident Cards, also known as “green cards,” for lawful permanent residents who file Form I-90.
Unionization in the Restaurant Labor Force
This year saw a significant push from restaurant labor unions for increased minimum wages, especially in the fast food industry. Some states, like California, implemented higher minimum wages specifically for large chain restaurants, which sparked an uptick in union activity in response to a tight labor market, increased worker dissatisfaction (specifically around wages and scheduling), and increased public support of restaurant unions. Unionization efforts also increased due to the National Labor Relations Board (NLRB) rulings that strengthened workers’ rights to organize.
Independent Contractor Rule
Effective March 11, 2024, the DOL replaced the 2021 independent contractor rule to reduce the risk that employees are misclassified as independent contractors under the Fair Labor Standards Act (FLSA). The rule lays out a non-exhaustive six-factor test to determine whether workers should be properly classified as employees or independent contractors by considering factors under a totality-of-the-circumstances approach:
- Effect of managerial skill on profit or loss;
- Investment in facilities and equipment;
- Permanency or duration of the relationship;
- Extent to which the work performed is an integral part of the employer’s business;
- Employer’s degree of control over the performance of work;
- Overall skill and initiative of the worker.
Businesses should also be mindful of certain requirements within the written terms and conditions of an independent contractor agreement as well as during the contractor relationship to create the presumption of an independent contractor relationship and avoid misclassification issues with their workers.
Non-Compete Agreements
On August 20, 2024, a district court issued an order stopping the Federal Trade Commission (FTC) from enforcing its April 23, 2024 ruling banning non-compete agreements nationwide. While the FTC has appealed that decision, individual non-compete bans can still be enforced on a case-by-case basis.
The non-compete ban was an effort by the FTC to promote competition while protecting workers’ ability to change jobs and spur business development without impingement from a former employer. As the FTC and other regulatory bodies create limitations on enforceable non-competes, employers should consider alternative ways of protecting their businesses such as through trade secret protections, non-disclosure agreements, and strong confidentiality protections. While the ruling has been temporarily blocked, employers should continue to pay attention to this fluid situation and ensure that employment agreements comply with applicable state laws (such as Colorado’s current non-compete limitations) and other judicial requirements.
State-Level Pay Transparency Laws
This year saw jurisdictions including California, Colorado, Connecticut, New York, and Washington D.C. enact pay transparency laws that require employers to disclose salary ranges in job postings or during the hiring process. Employers should pay close attention to any requirements in their jurisdiction when advertising new positions and during the interviewing and hiring process, as well as ensuring they are acting in compliance with the necessary notices to current employees after the hire is made (such as providing certain information to existing employees who will be working with the new hire).
Job Application Fairness Act
Colorado enacted the Job Application Fairness Act (JAFA) on July 1, 2024, which prevents age discrimination in the workplace by prohibiting employers from asking job applicants about their age, date of birth, or college graduation dates on the initial employment applications. JAFA only applies to the initial job application, meaning that employers can ask about age later in the process.
State-Level Expanded Leave Laws
Several states expanded their leave laws in 2024, focusing more on paid family and medical leave by broadening qualifications and benefits. California, Colorado, Connecticut, Maine, Maryland, New York, Oregon, and Washington are just some key states that enacted expanded laws. Employers should check with their state-level labor departments to ensure they comply with any updated leave laws.
For example, Colorado’s Family and Medical Leave Insurance (FAMLI) adds additional access for Colorado workers to paid leave and protection from termination when life circumstances affect their ability to work. This benefit is in addition to the Federal Medical Leave Act (FMLA), which secures unpaid leave and is only available to employees working for businesses with 50 or more employees.
State-Level Cannabis Laws and Employment Policies
California was one of a few states to update its cannabis laws related to employment policies in 2024. California employers are now prohibited from discriminating against employees based on off-duty cannabis use, meaning employees cannot be hired, fired, or disciplined as a result of recreational usage so long as its usage does not affect their performance in the workplace. However, that law comes with caveats: employers can still test employees in safety-sensitive positions such as transportation or construction, and federal contractors must still comply with federal drug testing regulations.
Employers with drug testing policies should verify the cannabis and employment laws in their jurisdictions to ensure they are compliant with the most current statutes.
Messner Reeves LLP’s Labor & Employment Law Practice Area can help you maintain compliance.
Our experienced labor and employment attorneys work closely with clients of all sizes and industries to navigate the complexities of federal, state, and local employment laws and regulations. We can help ensure compliance and avoid litigation by developing custom employment practices that make sense for your business.
