The first quarter of 2023 saw several changes to state and local law that will require employers to update their employee handbooks.  Additionally, the National Labor Relations Board (NLRB) ruled that certain non-disparagement and confidentiality provisions in severance agreements violate the National Labor Relations Act (NLRA). 

Protected Characteristics under State EEO Law

On February 2, 2023, Minnesota enacted the CROWN Act, amending the state’s Human Rights Act to define race to include “traits associated with race, including but not limited to hair texture and hair styles such as braids, locs and twists.”

In Pennsylvania, amended regulations expanding the definitions of the terms race, sex and religious creed in the state’s Human Relations Act took effect on February 23, 2023.  The changes to the definitions are:

  • Race includes “traits historically associated with race, including, but not limited to hair texture and protective hairstyles, such as braids, locks, and twists” as well as “ancestry, national origin, or ethnic characteristics” and “interracial marriage or association” 
  • Sex includes “pregnancy, childbirth, breastfeeding, sex assigned at birth, gender identity or expression, affectional or sexual orientation, and differences in sex development”
  • Religious beliefs include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views”

On March 15, 2023, Utah’s governor Spencer Cox signed the Vaccine Passport Prohibition act, which bars employers from refusing employment to, barring employment of, or discriminating against any individual on the basis of the person’s vaccination or immunity status.

On March 16, 2023, Michigan Governor Gretchen Whitmer signed legislation expanding protected characteristics under the state’s Civil Rights Act to include “sexual orientation, gender identity, and gender expression.”

Paid Leave for Any Reason in Illinois

On March 13, 2023, Illinois Governor J.B. Pritzker signed the Paid Leave for All Workers Act, which provides 40 hours of paid leave per year, for any purpose, to every employee working for an employer in Illinois.  The law goes into effect on January 1, 2024.  Employers who are subject to the Chicago and Cook County paid sick leave ordinances are exempt from compliance with the state paid leave law.

Paid Military Leave in San Francisco

San Francisco passed the Military Leave Pay Protection Act which requires employers to pay employees who are reservists or are called to active duty the difference between their military salary and their salary as employees, for up to 30 days a year.  The Act went into effect on February 19, 2023.

NLRB Decision on Non-Disparagement and Confidentiality Provisions in Severance Agreements

On February 21, 2023, the NLRB issued its decision in McLaren Macomb, Case 07–CA–263041, holding that employers may not offer employees severance agreements which include non-disparagement provisions or confidentiality terms that prohibit disclosure of the terms of the severance agreement.  In the decision, the NLRB held that by barring communication among employees such provisions require employees to give up their rights under Section 7 of the NLRA to join together to advance their interests as employees.

The McLaren Macomb decision reverses two 2020 NLRB decisions which held that similar provisions in severance agreements were not, by themselves, unlawful.

How Clear Law Institute Can Help

HR Policies & Employee Handbook Service

Ensuring that an employee handbook is current and compliant presents a key challenge for many organizations. Employers must:

  • Develop a handbook that is compliant with federal and state laws in all jurisdictions where they have employees.
  • Monitor the law in all jurisdictions where they have employees and change their handbook as the laws change.
  • Ensure that employees acknowledge receipt of the handbook and revisions to it as it is updated.

Clear Law’s Compliance Advisory Team can work with your organization to create a handbook that is both legally compliant and meets your company’s needs. Once the handbook is created and in use at your organization, we provide you with timely updates to its policies in response to changes in evolving federal and state law and help you assure that employees acknowledge receipt of the policies as the handbook change

Complete Harassment & EEO Compliance Program

To comply with federal guidelines and state laws, employers must ensure that all aspects of their harassment prevention program are fully compliant.  With its in-house legal expertise, Clear Law Institute provides employers a complete workplace harassment prevention program with the following elements:

  • Employee Harassment Prevention Training
  • Harassment Policy, Notice, and Posting Compliance Service
  • Investigations Training and Investigative Services
  • Sensitivity Coaching

If you have any questions about these new employment law updates, please contact us at 703-372-0550 or at [email protected].

About the Author

Elissa Rossi, VP of Compliance Services, has practiced employment law and litigation at various law firms, including Boyd Richards and Wilkie Farr. She also has served as an Assistant Attorney General in New York’s Attorney General’s Office. Elissa has represented clients in state and federal actions and in administrative proceedings before the EEOC and other regulatory bodies. Elissa is a graduate of the University of Pennsylvania and the University of Chicago Law School.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances