Each year brings constant changes in employment law, and 2023 promises to be no exception. Massachusetts Employers should regularly review their policies and procedures to ensure compliance. Here are five issues to keep an eye on this year.
1. A Potential Shift in How Employers Classify Employees
On October 13, 2022, the U.S. Department of Labor proposed a rule change that would impact how employers in MA and beyond classify employees and independent contractors. The goal is to protect the rights of contractors and ensure that they’re being paid full wages. If approved, the rule would rescind the 2021 Independent Contractor Rule and provide new guidance on classifying employees and independent contractors under the FLSA. It would also bring back the multifactor totality-of-the-circumstances analysis to determine whether a worker falls into the employee or independent contractor category in adherence to FLSA policy.
2. Use and Regulation of AI in the Workplace
As AI becomes more mainstream, we’ll likely see more workplaces integrating it into their processes. For instance, employers might use AI technology to analyze resumes, predict job performance, or evaluate a candidate’s attention span. From an employer’s viewpoint, this technology could assist in decision-making. But from an employee or potential employee’s viewpoint, these practices might seem discriminatory.
In 2022, the U.S. Equal Employment Opportunity Commission issued guidance to employers who wish to use algorithmic decision-making tools respectfully and appropriately. One concern is that an employer could use these tools without disclosing this to the employees, which could be perceived as a breach of privacy and a display of distrust. Another concern is that these tools can screen out individuals with disabilities who might need reasonable accommodations to perform well on these AI screenings.
The Biden administration has also issued an Artificial Intelligence Bill of Rights with five principles that employers who want to use AI in the workplace should follow. The goal behind this bill of rights is to protect data privacy, encourage transparency, and discourage discrimination as employers modernize their decision-making processes with the help of algorithmic technology.
3. Hairstyle Discrimination Cases Against Employers
Even though Massachusetts recently joined 18 other states in enacting the CROWN Act, some MA employees still experience discrimination. Our state’s adoption of the CROWN Act came into effect after a school reprimanded two Black students for wearing hair extensions that allegedly went against school policy. We’ll likely see more lawsuits arise in 2023 as employees take their employers to court over natural hairstyle discrimination.
4. More Pay Transparency Laws
This year, we should see more states adopt pay transparency laws. California, Colorado, Connecticut, Maryland, Nevada, New York City, Rhode Island, and Washington are just some of the states that have embraced this legislation starting in 2023. These laws require employers to be more upfront about the salary range or wage during the application process before an individual signs on with the company. While Massachusetts currently doesn’t have a pay transparency law, if you’re an MA-based employer who hires outside the state, you’ll want to be aware of these laws in the states in which your candidates reside.
5. A Possible Shift in Non-Compete Rules
A non-compete agreement is a clause that an employer may impose on their employees, prohibiting them from working for a competitor or establishing a rival business within a certain timeframe after they stop working for that company. Earlier this year, the Federal Trade Commission proposed a rule that would ban employers from initiating and enforcing non-compete provisions in employment agreements. Massachusetts employment law currently dictates which non-competes are enforceable. And any non-competes that went into effect after October of 2018 must adhere to stringent requirements.
Enlist the Help of Rodman Employment Law
Contact us at 617-820-5250 if you have any questions about an employment law case, or if you need help navigating new legal shifts for your MA workplace. It’s our mission to help you stay on the right side of the law and ensure that your rights are protected.