They're HERE: 8 New Employment Law Trends Shaping 2022

It's a new year -- with a host of new employment law challenges and changes. From paid sick leave to monitoring software to vaccine mandates, make sure you're staying abreast of these top legal trends impacting the modern workplace:

1. Know whether your business is required to meet vaccination rules.

In September 2021, President Biden directed the Department of Labor to require all businesses with 100 or more employees to mandate either vaccination or weekly testing for COVID-19 for all employees. Companies will also be required to give paid time off for employees to meet these requirements. Legislation is still evolving, so your business must keep up to date on the latest updates from the U.S. Department of Labor's Occupational Safety and Health Administration Emergency Testing Standard: https://www.osha.gov/coronavirus/ets2

2. Sexual orientation and gender identity are protected categories.

In Bostock v. Clayton County, Ga., the Supreme Court ruled that employers can't terminate their employees based on their sexual orientation or gender identity, as these fall under the prohibition against sex discrimination under Title VII of the Civil Rights Act. Clear, consistent policies in this area can help employers comply with the law.

3. So long, furloughs.

The Coronavirus Job Retention Scheme, focusing on furloughs for employees whose workplaces were shut down by COVID-19, ended on September 30, 2021. Some employers may now need to focus on redundancy processes for those workers who could not be recalled before the end of the furlough period.

4. Think twice about adverse actions in response to employee social media.

In Mahanoy Area School District v. B.I., the Supreme Court held 8-1 that a high school cheerleader couldn't be suspended from her cheer squad for a social media post critical of the squad's tryout rules. The ruling will likely apply to employers as well, limiting their disciplinary options for workers who criticize their job or employer on social media.

5. Is your AI-based hiring system at risk?

Members of Congress recently directed the Equal Employment Opportunity Commission (EEOC) to evaluate whether the EEOC can adequately address discrimination claims related to AI-based hiring software decisions. While no legislation is pending, it's likely that the EEOC's response will spur some efforts from Congress to address the use of AI in hiring.

6. Employers may be responsible for employees' data use - even if it's unauthorized.

In Van Buren v. United States, the Supreme Court held 6-3 that an employee who obtained information in an authorized manner but used it for an unauthorized purpose wasn't covered by the Computer Fraud and Abuse Act (CFAA) -- a result that could impact business liability in civil claims. It may be time to re-examine computer use policies and data access.

7. The minimum wage keeps changing -- everywhere.

While the federal minimum hasn't increased since 2009, dozens of states, counties, and cities have instituted minimum wage increases. Many have indexed wage changes to inflation. Employers seeking to comply with wage laws must pay attention to this patchwork of minimum wage requirements.

8. Notice is required for electronic monitoring of work resources.

The U.S. currently uses a "notice approach" to monitoring software in the workplace, which means employers must notify employees if they're using monitoring tools for work-provided resources like email. As remote work becomes more common, employers will need to take note of notice requirements.

Note: This information is for general informational purposes only and is not legal advice. If you have specific legal questions, speak to an attorney licensed to practice law in your area.