Corporate Services, Inc.
208 Kishwaukee St. · Rockford, IL 61104
(p) (815) 962-8367 · (f) (815) 962-0940
www.corpserv.com


Ones to Watch: Legislation Landscape for 2024

Posted:

Three months into the new legislative year, with all but a handful of state legislatures currently in session, several employment law trends for 2024 have emerged.

Some of the more significant trends reflect the country's social and political atmosphere and some of the legislative hot topics from 2023 are still trending or increasing this year. 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 notable trends currently.

Regulation of Child Labor

In 2024, more than half of the state legislatures introduced bills seeking to regulate child labor standards. The upswing in child labor legislation is likely a result of two competing motivations: worker shortages and the increasing incidence of child labor violations. While some states are primarily concerned with enhancing the penalties for employers that violate existing state child labor laws, others seek to decrease regulation of child labor.

Decreasing Child Labor Regulations

According to the U.S. Chamber of Commerce, as compared to pre-pandemic numbers, there are 1.7 million U.S. workers missing from the workforce. To fill this void, an increasing number of child labor bills have been introduced since 2023. The first state to enact a bill that partially deregulates child labor was Arkansas, which passed the Youth Hiring Act of 2023 to repeal the requirement that minors under the age of 16 must hold an employment certificate from the Arkansas Division of Labor in order to obtain employment. Last year, Iowa also eliminated some child labor restrictions by repealing the provision that prohibits employment of a minor aged 14 or younger, making 13 the new age of limitation.

Most states currently require minors in certain age ranges to obtain work permits from their state's labor department to confirm their age. In 2024, several states are following Arkansas' lead and introducing bills that would remove permit requirements and decrease the burden on employers to confirm a minor's age. For example, pending legislation in Wisconsin (pdf) would repeal the requirement that employers of 14- or 15-year-olds must obtain a written permit authorizing employment. Similar bills are pending in Alabama and Missouri. In addition, West Virginia has introduced a pair of bills that eliminate the work permit requirement and require only that a minor obtain written consent from a parent, guardian, or custodian in order to work. The bills would also decrease the age that allows a minor to get an "age certificate" from 16 years of age to 14 years of age, thereby making it easier for more minors to work.

Other states are pursuing legislation that would decrease restrictions on work schedules and working conditions for minors. For example, Indiana recently enacted multiple child labor laws, including Indiana HB 1093, which among other things removes the restrictions on the hours of work and time schedules for minors 16 years and older. Utah enacted a similar bill, and legislation is also pending in Missouri. Florida enacted a law that makes age 15 the upper age limit for certain restrictions on work schedules and work tasks, down from age 17. The new law also allows a parent or guardian to waive the restriction on a minor working more than 30 hours per week. Idaho SB 1300 would repeal the state's existing child labor restrictions for minors under 16, taking the view that the federal Fair Labor Standards Act supersedes multiple portions of Idaho's child labor law and that these provisions are unnecessary. One state has introduced legislation that would repeal existing meal and rest breaks for minors. Louisiana SB 109 and Louisiana HB 156 would repeal the requirements that minors be allowed at least 30 minutes for meals for any five-hour period and that employers document minors' meal periods using the company's regular timekeeping system.

Strengthening Child Labor Protections

The U.S. Department of Labor reported that illegal child labor practices have been steadily increasing. The federal Wage and Hour Division's Fiscal Year Data on Child Labor report provides that cases with child labor violations jumped from 835 cases in FY 2022 to 955 cases in FY 2023. In addition, the number of minors employed in violation also increased from 3,876 minors in FY 2022 to 5,792 minors in FY 2023.

Restrictions on Noncompetition Agreements

California has long had a statute on the books that voids a noncompetition clause or agreement that restrains a person from engaging in a lawful profession, trade, or business, subject to very limited statutory exceptions. Recently, other states have begun to follow suit by introducing bills that would significantly limit an employer's ability to bind a prospective or current employee with such an agreement, including Connecticut, Illinois, Kentucky, Louisiana, Missouri, Rhode Island, and Utah.

California is considering a bill that is comparable to its prohibition on noncompetition agreements that would prohibit a labor contractor from restricting a temporary worker from accepting a permanent position with a client employer. Another limitation regarding noncompetition agreements has emerged in legislation that would prohibit an employer from imposing a noncompete agreement on an employee whose wages or salary falls below a specified threshold. For example, Missouri HB 2892 would render a noncompetition agreement void and unenforceable to the extent that it applies to an employee who is paid hourly wages. Nebraska's proposed legislation would prohibit noncompete agreements with "lower wage" employees, meaning employees who earn less than $100,000 per year.

New York City is also considering a package of legislation related to noncompetition agreements. The first and broadest proposed ordinance would prohibit employers from entering into noncompetition agreements with employees, without exceptions, and would also rescind agreements made prior to the effective date of the law. The other proposed ordinances would prohibit noncompetition agreements with "low wage" workers and limit the use of restrictive covenants with freelance workers unless certain conditions are met.

Bereavement Leave

In recognition of the fact that losing a loved one could significantly impact an employee's wellbeing and ability to work, there has been an uptick in the past few years of laws that permit an employee to take job-protected time off following a death in the family. Oregon was the first state to provide leave for this reason. Massachusetts, Minnesota, and New Jersey are considering bills in 2024 that would allow eligible employees to use paid family and medical leave and/or paid sick leave for bereavement purposes following the death of a family member.

Kentucky and New Jersey are considering bills that would provide bereavement leave specifically in the context of a reproductive loss such as a miscarriage or stillbirth. California enacted a similar law in 2023; it allows an employee to take up to 20 days of leave following a "reproductive loss event," which means a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. Illinois and Washington have similar laws in effect.

Continuing Trend: Bans on Mandatory Employer-Sponsored Meetings

As seen in 2023, mandatory employer-sponsored meetings remain a prevalent topic in employment-related legislation. Proposed laws would restrict employers from requiring employees to attend employer-sponsored meetings regarding the employer's opinion on political or religious matters, and also prohibit an employer from taking adverse action against employees if they refuse to attend these employer-sponsored meetings or any other rights guaranteed under the bill's provisions. Many of these bills are being encouraged by unions to prevent mandatory employer-sponsored meetings during unionization campaigns, as some of the bills include information related to unionization under the definition of "political matter."

In 2023, New York, Maine, and Minnesota enacted such laws. In 2024, similar legislation has been proposed in Alaska, Colorado, Hawaii, Illinois, Maryland, New York, Rhode Island, Virginia, and Washington. Notably, Washington's bill, which would protect the right of workers to refrain from attending or listening to employer-sponsored meetings related to political or religious matters, is currently waiting for Governor Inslee's signature or veto.

Laws governing mandatory employer-sponsored meeting are still being introduced even though there are pending court challenges related to the constitutionality of these laws, specifically regarding free speech and potential preemption by the National Labor Relations Act. Recently, a federal judge in New York enjoined the enforcement of an amendment to New York's State Employment Relations Act. The amendment prohibited agricultural employers from discouraging employees from participating in union organizing and protected concerted activities. The court found that the amendment was facially invalid because it constituted viewpoint discrimination and chilled employer speech. Although the ruling is narrow, it may be a snapshot of what to expect out of current and future challenges to these laws.

Continuing Trend: 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 could result in discriminatory impact.

California AB 2930 would prohibit an employer from using an automated decision tool in a manner that results in algorithmic discrimination and would also require an employer using automated decision tools to (1) perform an impact assessment for any automated decision tools being used and (2) notify any applicants or employees that may be impacted that an automated decision tool is being used in an employment-related decision process. Congress is also taking aim at algorithmic discrimination with a bill entitled the "No Robot Bosses Act," which requires an employer to conduct pre-deployment testing and validation on an automated decision system, notify impacted individuals, and provide training to employees and other individuals that would be utilizing the system or tool. Other jurisdictions with proposed legislation of this sort include Connecticut, Georgia, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

Continuing Trend: Reproductive Health

The 2022 Dobbs decision by the Supreme Court continues to make waves within the state legislatures and will likely do so for the foreseeable future. Of interest to employers, the emerging subtopics in reproductive health that impact an employer's compliance obligations are health insurance coverage of reproductive health services and proposed constitutional amendments regarding the right to reproductive health services.

In 2024, legislation has been introduced in 15 states related to health insurance coverage of reproductive health services, including but not limited to abortion, contraceptives, fertility services, and sterilization. A majority of these health insurance coverage bills focus on contraceptive coverage, whether that be all contraceptive devices, or only contraceptives approved by the federal Food and Drug Administration. Examples include the following bills: Arizona HB 2841, Delaware SB 232, Kentucky HB 428, Missouri SB 2413, and Virginia SB 238.

However, abortion is still a hot topic for health insurance coverage. For example, companion bills in Minnesota would require heath plans to cover abortions and related services. In contrast, Indiana SB 217 would prohibit individual and group health contracts from covering abortion-inducing drugs. Additionally, there are intersections regarding health care coverage and discrimination. New Jersey AB 1586 posits that employers that provide health benefit plans in New Jersey that exclude coverage for prescription female contraceptives would be considered an unlawful employment practice. On the other hand, Iowa SSB 3006 would not require health care payors, including employers, to provide health care services that would violate their conscience and the refusal to participate would not be considered a form of discrimination.

Since 2022, voters have overwhelmingly shown support for reproductive health ballot initiatives through citizen-initiated ballot measures and through legislative referral. Legislators in Alabama, Georgia, Iowa, Louisiana, Mississippi, Missouri, New Hampshire, South Carolina, Virginia, and West Virginia have introduced proposed amendments for their respective state constitutions that would establish the right to reproductive freedom or the right to obtain an abortion. If the legislatures approve, these measures would appear on the ballot in the next general election on November 5, 2024. However, as all of these states except for Virginia are Republican trifecta states — i.e., hold a majority in both legislative chambers and the governorship — it is unlikely that the legislation will pass and subsequently appear on the ballot.

Honorable Mention: Additional Notable Trends

Along with categories of legislation discussed above, a number of bills have also been introduced on the following labor- and employment-related topics:

  • Bills that would regulate working conditions for warehouse employees: These bills require employers of warehousing employees to consider certain factors when establishing quotas or provide concrete quota expectations upon hire. In addition, these bills usually prohibit quotas that would interfere with required meal and rest breaks. In 2023, Minnesota and Washington enacted warehouse employment bills and in 2024, there are similar bills pending in Alaska, Connecticut, Illinois, Hawaii, Massachusetts, Nebraska, Oregon, and Virginia.
  • Bills that penalize antisemitism: Like last year, bills that define "antisemitism" for purposes of discrimination and fair employment laws are continuing to pop up in the 2024 legislation season. This year, South Dakota enacted a law that creates a definition of "antisemitism" to be used when determining whether a violation of South Dakota's fair employment laws have occurred. Michigan, New Jersey, New York, North Carolina, and South Carolina are considering similar legislation.
  • Bills limiting the use of nondisclosure agreements: These bills prohibit an employer from including a nondisclosure clause in a settlement or release agreement that resolves a claim involving discrimination and harassment. While not a new trend — roughly a quarter of U.S. states plus the federal government have passed such laws in the last few years — it seems more states are seeking to pass similar legislation in 2024. Utah enacted a new law in February, and Arizona, Connecticut, Delaware, Kentucky, and Louisiana are considering this legislation.
  • Bills limiting the doctrine of at-will employment: Kentucky, Mississippi, and New York City are considering legislation that would prohibit at-will employment and require that termination of employment be for cause.

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.

Posted In: Artificial Intelligence (AI); Department of Labor (DOL); Hiring/Recruiting; Illinois; Minnesota; National Labor Relations Act (NLRA); Non-Compete Clause (Restrictive Covenant), Non-Disclosure Agreement (NDA); U.S. Supreme Court; Wisconsin

Want to know more? Read the full article by at Littler Mendelson

More News from Corporate Services, Inc.