Employment issues were on the front burner for in-house counsel this year as they tried to comply with pay transparency and AI-assisted hiring laws, dealt with return-to-office matters, provided accommodations for nursing mothers, and, in some jurisdictions, added weight and height to workplace discrimination categories. 

Whether 2024 will be another big year for new laws and rules isn’t clear but there could be some overhang from the pandemic, even though that’s receded into the background, Pryor Cashman Partner LaKeisha Caton says. 

“I don’t think legislation could really focus on employment law, protecting employee rights …  as a result of the pandemic and [businesses] being shut down beginning in 2020,” Caton told Legal Dive. This could help explain why employment law has seen so much activity since 2022.

Looking ahead to 2024, it’s possible more jurisdictions, and even some states, will follow New York City, San Francisco and other municipalities to make height and weight a protected category against discrimination. 

Lawmakers “in New Jersey and Massachusetts have introduced bills banning height and weight discrimination, and New York state, I expect, will follow,” Caton said. “I can’t say it’s a nationwide effort; some states are more protective than others, but I expect other jurisdictions will pass laws.” Michigan is one state that has already enacted a size discrimination law. 

New York City’s law, which took effect in November, gives employees and job candidates a private right of action to sue or file a complaint with the city’s human rights commission if they feel they’ve been discriminated against based on their size. Although there’s no requirement for companies to update their employment policies or manuals, it’s a best practice to do so because if a complaint is filed, it can help if the company can show it takes the matter seriously. 

“You couldn’t sue an employer because you saw height and weight were not listed in the employee handbook,” Caton said. “That being said, when agencies make decisions, they may take that into consideration. If you’re arguing it’s a pattern and practice to engage in discrimination or was willful or made with reckless disregard, having good policies in place and training does matter. It can impact a claim or award given by an agency.”

New York City was also on the leading edge of laws sweeping the country requiring employers to list pay ranges in job postings to promote gender and race pay parity, but these laws are giving rise to new problems, including pay compression and antitrust concerns. 

Studies show transparency laws often lead to stagnating pay to existing employees while new-hires come in at either the same or higher pay, as employers try to attract young, tech-savvy talent. That can lead to dissatisfaction among experienced employees as they watch younger people leapfrog them on pay.

Pay transparency is triggering antitrust concerns to the extent employers see what their competitors are paying and match that when they list job openings; that could expose them to charges of collusion as the Federal Trade Commission and the Department of Justice step up their scrutiny of competition in labor markets. 

“There are issues that are raised by pay transparency which wasn’t the intent at all but are possible negative consequences of these new laws,” Caton said. 

The allure of remote work as employers try to get employees to return to the office also remains a source of conflict, with employers at risk of discrimination claims if employees who say they need to stay remote feel employers aren’t offering them a reasonable accommodation. 

“We’re seeing less return-to-office now than during and after the pandemic, but we’re still seeing it,” Caton said. “We still see employees who don’t want to go back, for valid medical reasons. It’s tough for employers.”

In-house counsel need to stay on top of local and state employment and discrimination laws because, depending on where remote employees are, those laws could apply. That adds complexity to the matter.  

The complexity of work-related harassment can also increase while an employee is working remotely because the facts of the case can be hard to pin down. If someone is harassed while working at a cafe, for example, it can be difficult to decide if the incident is work related or not.

“If someone randomly came up and inappropriately touched you, it would be hard to argue that that’s covered by your employer within the scope of your job,” Caton said. “But there could be facts where you’re working remotely with a bunch of coworkers. It would be an individual, fact-specific analysis.”

Bottom line. This year’s rush of activity might have stemmed from little getting done on the employment law front during and immediately after the pandemic, so 2024 could end up being a lighter year for initiatives, but many of the issues arising from the new laws are poised to carry into the new year.