Q. When is the deadline for submitting annual pay data reports under California law?

A. In 2021, California passed legislation, requiring private employers with 100 or more employees to submit annual pay data reports to the California Department of Fair Employment and Housing (DFEH) under Government Code Section 12999. Companies must comply if they have more than 100 employees, if any of those employees work in California. According to the FAQs, employers need to include reporting data for California employees only, but they may voluntarily choose to include employees working out of state.

Q. Does the Workers’ Compensation Act bar a claim for damages under Illinois’ Biometric Privacy Act (BIPA)?

A. The Illinois Supreme Court recently issued an opinion, finding that the Workers’ Compensation Act does not bar a claim for damages under BIPA.

Q. How does the H-1B cap lottery work?

A. Once again, the H-1B cap filing season is here. The H-1B is a popular U.S. work visa available to highly skilled foreign nationals who are offered an H-1B-qualifying position by an employer. This visa is also known as a “specialty occupation” visa because in order to be eligible for this visa category, the position being offered to a foreign national must require a minimum of a bachelor’s degree in a specific field, and the foreign national must meet that requirement. Typical candidates for the H-1B petition include students and recent graduates currently working under a work permit card (OPT or STEM OPT). In some cases, employees in TN status might benefit from switching over to H-1B.

Q: I read that some major companies no longer drug test applicants for marijuana. What should our company consider as we conduct a review of our workplace drug testing policy for 2022?

A: It is true that a growing number of companies appear to be eliminating workplace drug testing. There are two major reasons: expanding marijuana legalization and the pandemic-era labor shortage.

Q: Did the U.S. Supreme Court issue a ruling in the challenge to OSHA’s vaccine and testing emergency temporary standard (ETS) and CMS interim final rule (IFR)?

A: Yes. On January 13, the Court granted the applications for stays of the OSHA ETS. Conversely, the Court granted the federal government’s request to overturn the injunctions that had halted the IFR.

Q. My company uses dash-cams to monitor driver conduct, but the company is not located in Illinois. Do I still have to comply with the Biometric Information Privacy Act?

A. Yes, as long as the company has drivers who are Illinois residents, you must comply with BIPA. The good news, however, is that as long as your company fully complies with the statute, it can continue to use telematics.

Q: Now that 2021 is behind us, what are the new California employment law changes for 2022?

A: While employers continued to grapple with the effects of COVID-19 on their businesses, last year’s California legislative actions led to relatively fewer employment law changes than usual for the upcoming 2022 year. Below find descriptions of new employment-related changes, including new rules for severance agreements, expanded limitations on confidentiality and nondisparagement provisions in settlement agreements, extended recordkeeping requirements, changes to the California Family Rights Act, arbitration, COVID-19 compliance, wage and hour, and industry-specific developments.

Q: Has New York City provided any additional details on the employer vaccination mandate?

A: As we previously discussed, effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. The policy must provide that all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27.

Employers must complete an Affirmation of Compliance with Workplace Vaccination Requirements (available here) and post the completed affirmation in a public place.

Q: I heard New York City just announced an employer vaccination mandate. What do I need to know?

A: On December 6, Mayor Bill de Blasio announced that effective December 27, all private employers in New York City will be required to implement a vaccine mandate for their employees. Employers will be required to implement a policy under which all employees who work in-person in a workplace with other co-workers are required to have at least one dose by December 27. Although many details have not yet been announced, based on Mayor de Blasio’s comments thus far, no alternate testing option is expected. The mandate is expected to affect approximately 184,000 businesses in New York City.

Q. What is the status of the Sixth Circuit’s consideration of the challenges to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), and how does it impact the upcoming deadlines set by the ETS?

A. As discussed in our previous alert, on November 5, OSHA published an ETS that would require private employers with 100 or more employees to establish, by January 4, 2022 either (1) a mandatory COVID-19 vaccination policy; or (2) a vaccination policy that requires employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS would also require covered employers, by December 6, to: (1) determine the vaccination status of all employees; (2) provide leave for them to get vaccinated and recover from side effects of vaccination; and (3) ensure unvaccinated employees wear face coverings at work. Multiple challenges were filed over the ETS after OSHA’s issuance of the ETS, and, on November 16, the U.S. Court of Appeals for the Sixth Circuit was selected by lottery to hear the consolidated challenges to OSHA’s recent ETS, including the Fifth Circuit’s extension of a nationwide stay of the ETS on November 12.