Now that the tumultuous 2022 is over, here are the four employment law developments to stay on top of in 2023. Employers have to stay on their toes in the year ahead!
Non-Competes. Employers have used non-compete and non-solicit clauses in employment agreements for a variety of reasons for many years. A number of states as well as the FTC have now stepped in to regulate the use of these post-employment clauses, with a particular focus on non competes. On January 5, 2023, the FTC proposed a rule to ban the use of non-compete clauses in all employment agreements. The proposed rule would also require employers to rescind existing non-compete agreements. A number of jurisdiction have already banned or limited the application of non-competes. For example, Virginia and Maryland have banned non-competes for low-wage or hourly employees. Washington, D.C.’s delayed ban on most non-competes went into effect in October 2022.
Salary Transparency. Last year, many states and municipalities have come on-board in regulating how employers advertise for open positions. To close out the year, NY Governor Kathy Hochul signed into law a NY Labor Law amendment that mandates disclosure of salary ranges for open positions, promotions or transfers. The tailwinds are only going to increase this year in many states.
Off-Duty Cannabis Use. As many jurisdiction are increasingly moving toward cannabis legalization, they are also putting in limitations on employers’ ability to discipline or refuse to hire employees based on their off-duty use of cannabis. Expect these statutes and their exceptions to be tested in the courts in 2023.
At-Will Employment. The New York City Council closed out the year with a proposed ordinance to significantly limit the at-will nature of the traditional employer-employee relationship. In general, the proposal calls for precluding employers from discharging any employee without “just cause” or a “bona fide economic reason”. In 2021, NYC already largely eliminated at-will employment for fast-food industry workers. In Philadelphia, car parking industry workers cannot be discharged without being provided progressive discipline first. Targeted or wholesale efforts to restructure employment at-will are likely to pick up steam in the year ahead.