By Maureen H. Lavery and Hannah H. Stilley
Three months into the new legislative year, with all but a handful of state legislatures currently in session, clear employment law trends for 2023 have emerged. Some of the more significant trends reflect the country’s social and political atmosphere. The COVID-19 pandemic continues to prompt legislation addressing the challenges of the return-to-work environment and employees’ desire to balance work and home life. While it is too early to tell which of the thousands of bills at the federal, state and local levels will ultimately be enacted, the following seem to be the most prevalent trends so far for 2023.
Workplace Freedom of Speech
These bills would restrict how employers may lawfully convey messages to employees about religious and political matters. Many of these bills are being encouraged by unions to prevent mandatory employer-sponsored meetings during unionization campaigns. Connecticut enacted such a “right not to listen” law last year. Some bills introduced in 2023 prohibit employers from requiring employees to attend meetings conveying the employer’s opinion about religious and political matters to listen to speeches or to view any communication that conveys such opinions. These bills typically also include an antiretaliation component prohibiting an employer from taking adverse action against an employee who refuses to attend a meeting or otherwise exercises rights afforded in the bill. For example, California SB 399 would create the California Worker Freedom from Employer Intimidation Act to prohibit employers from requiring employees to attend meetings for the purpose of communicating the employer’s opinion about religious and political matters. New Mexico, New York, Rhode Island, Vermont, and Washington have similar bills pending.
Other legislation in this area would prohibit an employer from discriminating or retaliating against an employee due to the employee’s political affiliation or expression of political views. Montana SB 270 would prohibit employers from retaliating against employees or applicants for legal expression of free speech in personal social media posts. Other jurisdictions with pending legislation prohibiting political affiliation or political activity discrimination include Hawaii, Iowa, Minnesota, Utah, and Virginia.
In light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, it is unsurprising that there has been an influx of proposed legislation related to reproductive health. Of interest to employers, more than 150 bills pending in about two-thirds of U.S. states relate to the availability of reproductive health rights and services. Reproductive health services include pregnancy-related services, abortion, contraceptives, emergency contraceptives, fertility treatments, in vitro fertilization (IVF), and sterilization. Specific topics covered by such legislation range from allowable healthcare coverage, discrimination protections based on reproductive health choices, civil procedure shield laws, and the availability of gender-affirming health care.
Some jurisdictions are considering legislation that would make reproductive health decisions a protected classification under the jurisdiction’s antidiscrimination law, while others are considering legislation to protect those decisions generally. For example, New York SB 4172 seeks to amend the New York State Human Rights Law to add a protected classification based on “pregnancy outcome,” defined as the actual, potential, or perceived result of a pregnancy. Outcomes may include abortion, miscarriage, stillbirth, delivery of an infant regardless of health or disability status, or the death of a newborn due to in utero causes. A pair of Texas bills would prohibit discrimination based on a person’s reproductive health decisions, such as marital status at the time of pregnancy, use of assisted reproduction, contraception use, or the use of other health care services related to reproductive health.
A number of state lawmakers have introduced legislation that would either require or prohibit abortion coverage in health plans. Other states seek to require coverage for contraceptives, diagnosis and treatment of infertility, and sterilization. For example, pending legislation in Hawaii would require every individual and group health insurance plan to cover abortion, contraceptive supplies, and voluntary sterilization. Conversely, Indiana SB 311 would prohibit qualified health plans from covering abortion except in cases of rape, incest, or when necessary to avoid the pregnant woman’s death or “substantial and irreversible impairment of a major bodily function.”
At present a few states, such as Texas, allow civil actions to be brought against individuals who receive an abortion, perform abortions, or aid and abet abortions. In response, other state lawmakers have introduced bills that would instruct the jurisdiction’s courts and agencies to not recognize interstate extradition requests, imposition of civil or criminal liability, subpoenas or summonses, or out-of-state investigations related to reproductive health care. These bills are aimed to protect, or “shield,” the jurisdiction’s residents against another state’s laws. New Mexico SB 13 would protect individuals and entities from civil or criminal liability based on another jurisdiction’s restrictions regarding reproductive health or gender-affirming care. Washington SB 5260 would allow an employer to recover damages if a judgment was entered in another state against the employer for assisting an employee’s receipt of reproductive health services that are legal in Washington. Other states, however, are considering bills regarding aiding and abetting an individual to obtain abortion, similar to the Texas law. Missouri has introduced SB 453, which would create a cause of action against a person who performs an abortion or who engages in conduct that aids or abets the performance of an abortion. “Aiding and abetting” includes the reimbursement of the costs of an abortion through insurance or other means. In a similar vein, at the federal level, HR 429, entitled the No Tax Breaks for Radical Corporate Activism Act, would deny an employer any tax deduction for reimbursing employees for the cost of child’s gender transition or travel to obtain an abortion. This bill is not expected to advance during this administration.
Legislation related to abortion and other reproductive health care is not the only legislative trend related to bodily autonomy and privacy. There are a number of legislative proposals surrounding gender-affirming care. Oklahoma’s HB 2177 would prohibit insurance coverage for any gender-affirming care procedures for adults within Oklahoma. A proposed law in Florida would create the “Reverse Woke Act,” which would require an employer that provides health care coverage for gender dysphoria treatment to also cover the full costs to reverse such treatment. Alternatively, some states have proposed legislation that would require coverage and availability of gender-affirming care. Oregon HB 2002 would prohibit health insurance carriers from denying or limiting coverage for gender-affirming treatment that is medically necessary and prescribed in line with the accepted standards of care. Vermont HB 89 would provide that reproductive health services and gender-affirming care are legally protected health care, and that individuals engaged in legally protected health care would be shielded from abusive litigation.
Several states, including California, Illinois, New York, Pennsylvania, Tennessee, and West Virginia, are considering bills to protect individuals from discrimination in employment on account of the individual’s familial status. Depending on the state, the class to be protected may also be called “family caregiver status” or “family responsibilities.” A few states have proposed legislation that would allow an employee to take time off from work as a reasonable accommodation for family caregiving responsibilities. California AB 524 would prohibit employment discrimination based on family caregiver status, meaning that the person contributes to the care of one or more family members, including individuals whose association to the employee is the equivalent to a family relationship. Illinois HB 2161 would protect an individual due to “family responsibilities,” including the actual or perceived need to care for a family member in the past, present, or future. This particular bill includes a definition of what “care” constitutes, such as medical care, transportation, activities of daily living, and financial support. Pennsylvania SB 238 expands the definition of “familial status” to include a person who provides, or is perceived to provide, care for a family member in the past, present, or future. Additionally, this bill would include “marital status” as a protected classification, meaning whether a person is married, single, divorced, separated, or widowed. A pair of bills in Tennessee would protect against discrimination based on “family responsibilities,” meaning that an employee must provide basic needs for a family member. However, the bill provides that employers are not obligated to make special accommodations for an employee with family responsibilities, as long as policies like scheduling and benefits are applied in a nondiscriminatory fashion.
Artificial Intelligence and Automated Decision-making Systems
Legislation in this area concerns an employer’s use of artificial intelligence, including an algorithmic or otherwise automated decision-making system or other data-driven statistical processes, to assist in taking personnel actions such as attracting and hiring qualified applicants and promoting current employees to new positions. Some legislatures, concerned that these tools could be applied in a discriminatory fashion, have introduced bills that would make it unlawful to use a tool in a manner that is intentionally discriminatory or that is facially neutral but nonetheless could result in discriminatory impact. By way of example, District of Columbia B25-114 would prohibit discrimination in algorithmic eligibility determinations regarding employment and require an employer to notify applicants and employees about how personal information is used in algorithmic eligibility determinations. Massachusetts HD 3051, called the Act Preventing a Dystopian Work Environment, would require an employer to notify workers if the employer will implement an automated decision system (ADS) and/or an electronic productivity system, and would also prohibit an employer from relying solely on output from an ADS to make a hiring, promotion, termination, or disciplinary decision. Other states with proposed legislation of this sort include Colorado, Connecticut, Illinois, Maryland, Minnesota, Montana, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Washington.
In 2021 and 2022, a handful of jurisdictions amended their pay equity laws to foster greater pay transparency by requiring employers to disclose the rate of pay or a range of pay rates in any job posting or advertisement for a position. In 2023, the floodgates have opened with about a quarter of U.S. states and major cities having introduced similar legislation, including Alaska, the District of Columbia, Georgia, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, New Jersey, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, and West Virginia.
Three jurisdictions that previously enacted pay transparency laws have introduced bills in 2023 that expand current disclosure obligations to require an employer to provide additional compensation descriptions and other information related to hiring and pay. Colorado SB 150 would require an employer to disclose the compensation range for all job opportunities and promotional opportunities, along with detailed information about the hiring process, and would also require the employer to consider each applicant in good faith through a competitive selection process. New York City has proposed an amendment to its pay transparency ordinance that would require an employer to disclose the non-salary or non-wage compensation for all advertised jobs, promotions, and transfer opportunities. New York State enacted a law on March 3, 2023 that amends its existing pay transparency provisions, set to take effect in September. The amendment requires employers to disclose compensation or range of compensation for a job, promotion, or transfer opportunity that will physically be performed in New York, including for any employee physically located outside the state who reports to someone in New York.
Sexual Orientation and Gender Identity and Expression
According to GLAAD, an LGBTQ media advocacy organization, legislatures across the country have proposed more than 300 anti-LGBTQ laws in recent years, including gender-affirming healthcare prohibitions for minors. In the employment realm, multiple jurisdictions have proposed legislation that would protect against discrimination on the basis of sexual orientation and/or gender identity and expression, including Arizona, Connecticut, Idaho, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Nebraska, South Carolina, Oklahoma, Texas, and West Virginia. Michigan’s legislature recently passed SB 4, which would prohibit employment discrimination based on sexual orientation and gender identity or expression. This bill is now awaiting the governor’s action. The bill codifies the Michigan Supreme Court decision of Rouch World LLC v. Department of Civil Rights, which prohibited employment discrimination based on sexual orientation. The bill would add gender identity and gender expression, which were not covered by the decision. While the vast majority of legislation in this area aims to prohibit discrimination on the basis of sexual orientation and/or gender identity in employment, in Iowa HB 190 would remove gender identity as a protected category.
Along with categories of legislation discussed above, a number of bills have also been introduced on the following labor- and employment-related topics:
- Bills related to antisemitism. These provide that the protected classifications of religion, ethnicity, creed, or national origin include explicit protection for those of the Jewish faith and/or ethnicity. Some of these bills adopt the definition of “antisemitism” used by the International Holocaust Remembrance Alliance (IHRA). The IHRA provides a working definition and present-day examples of antisemitism. Arkansas has already enacted a bill this year, and Georgia, New York, Rhode Island, South Carolina, and Virginia are considering similar legislation.
- Bills enhancing protections against age discrimination by limiting the information an employer can seek from a job applicant that would tend to elicit a response revealing the applicant’s age. For example, proposed legislation in Colorado would prohibit an employer from requiring an applicant to provide graduation dates from high school and post-secondary schools.
- Bills legalizing the recreational use of marijuana. While this is not new ground, the states in which marijuana use has not already been legalized via legislation or the ballot box continue to introduce legalization bills, including Delaware, the District of Columbia, Hawaii, Indiana, Kentucky, Louisiana, Minnesota, Missouri, Nebraska, New Hampshire, South Carolina, Tennessee, and West Virginia. Notably, Oklahoma voters recently rejected a ballot measure that would have permitted marijuana use.
- Bills related to vaccinations. Whether for COVID-19 or for vaccinations in general, several states have proposed legislation that would prohibit an employer from requiring an employee to get a vaccination or to disclose information about vaccination status as a condition of employment.
As with any other legislative year, it remains to be seen whether any of the bills discussed here will gain traction and eventually pass. Employers should consult counsel regarding any bills of concern to learn more about the current legislative status of the bill and the associated compliance obligations that would accompany the bill if it were to become enacted.