Given the notable events that have occurred in the past few years, it is a good time to pause and take stock of the new employee/employer dynamic that exists. We can first review the specific trends that have prompted the changes all of us have experienced, and then let us consider what the future may bring.
Expansion of Protected Groups
Federal anti-discrimination laws have traditionally protected classes of age, sex, race, color, religion, national origin, immigration status and citizenship, disability, and veteran status. Although most states share similar anti-discrimination laws, some states have recently gone beyond the federal requirements and enacted statutes protecting areas such as marital status, medical marijuana use, and credit history, among others. For instance, states such as New York have passed laws that prohibit employers from using an applicant’s credit history in employment decisions. Other states, like California, have introduced and proposed laws that prohibit employers from discriminating against employees for medical marijuana use and off-duty use of marijuana.
The #MeToo Movement
Protection is not only limited to certain groups. As time passes and public discourse on certain experiences increases, so do protections provided in the workplace. For instance, since 2017, we experienced the effect the #MeToo movement had on the workplace. The spotlight was aimed at harassment and discrimination, and especially at business and government leaders who had behaved in a manner that was often well known internally but kept under wraps for various reasons. This led to various laws expanding statutes of limitations in the area of sex discrimination and many states requiring annual anti-harassment training.
Social Justice Movement
The #MeToo movement is one example of a rising social movement. Black Lives Matter is a political and social crusade that gained recognition both in and out of the workplace within the last couple of years. Employees not only come to work to perform jobs, but also bring their political and social beliefs with them.
Impact of Covid-19 on the Physical Workplace
Over time, social movements changed the course of the employment arena, but with the Covid-19 pandemic, the workplace was transformed almost instantly. The Covid-19 pandemic led to an increase in employee protection laws. At the height of the pandemic, employers who could, initiated work-from-home accommodations for employees. As vaccines emerged and the pandemic began to settle, employers were entrusted to ensure a safe work environment that complied with the required safety protocols.
The Allure of Remote Working Locations
Since the Covid-19 pandemic altered the physical structure of the workplace, employees looking for additional room, more attractive physical workspaces and access to more suburban areas, began to relocate to more scenic places to work remotely. Some moved permanently to different time zones within and outside the United States. Many employees have gotten used to working fully remote and find it to be more productive. They find working remotely provides a better family balance, with flexibility to meet childcare and other family obligations.
In response to these trends, employers are reaching out more than ever to update their Human Resources policies to reflect a more multi-state dynamic. Organizations also plan the best mix of hybrid or fully remote options, depending on their business needs and how best to engage and retain their prized employees.
The Great Resignation
The physical structure of employment is one aspect that has changed due to Covid-19, but a trend known as “the great resignation” has changed the employment field. As the job market became more candidate-driven, employees who previously felt “stuck” to a particular job or career track decided to work in different environments and varied positions to experience more personally-favored work choices. Employees began to exhibit independent decision-making power in their employment and career choices, with more individuals applying and participating in employment that they genuinely enjoy.
Salary History and Pay Transparency Laws
With the adjustment to the great resignation and Covid-19, salary and pay transparency are topics that have brought changes in the workplace. Prior to the sweep of salary transparency laws, states such as New York and California passed legislation that prohibited employers from inquiring applicants previously earned salaries from prior jobs.
However, within the last two years, there has been novel legislation across many states to institute what is known as pay transparency laws. These laws require employers to disclose a salary range for their job postings. States such as NY, California, and Colorado are a few examples of states which have incorporated pay transparency laws that mandate employers with at least 15-employees to include a reasonable pay range in their job postings.
NLRB Limits Employer Releases
Further, in February 2023, the NLRB decided in McLaren Macomb, that when employers separate from employees and provide them with severance, the employers can no longer require or ask non-supervisory employees to keep the employment release and terms of the release confidential, or to sign non-disparagement clauses.
Proposed NY Bill Limiting “At Will” Employment
Lastly, an example of a proposed law that would greatly expand employee rights is New York’s proposed Wrongful Discharge bill. This proposed bill would safeguard employees from termination and would give employees remedies for possible wrongful discharges. The bill states that it would only consider a discharge to be wrongful if it is not for “good cause.” The bill defines good cause as “any reasonable job-related grounds” which encompasses employee failure to satisfactorily perform job duties; disruption of employer operations; repeated violations of employer policies, among others. Such a dramatic shift from at-will employment following the Covid-19 pandemic, would offer average employees extensive protection.
It is clear that the past few years have brought dynamic change to the traditional office setting in physical and internal ways, shifting the balance closer to the employee side of the equation. With the expansion of these employee protections, the challenge is for organizations to provide their employees with attractive, state-of-the-art policies, that reflect these laws and movements and are fairly administered.
This changing dynamic has increased the need for the guidance we provide on a daily basis. We partner with our organizations in all industries and sizes, as they refresh their internal policies, improve their workplace culture, and develop creative methods of attracting new and engaging existing employees, in a permanently altered workplace.