Employment Review For 2022

Employers, it’s almost a new year. I hope that your business has thrived, your employment policies have been effective (and updated), your managers have been trained, and that you have not been the subject of any workplace investigation by a federal, state, or local agency.

Reflecting on 2022 helps employers level-set for 2023.

To move forward, it helps to look back. Profits, productivity, and efficiency should increase, while employers hope that attrition and costs (especially unbudgeted ones) decrease.

Let’s Dive Right In

RTO or “return to office” remained a contentious workplace topic this year and continued to pit employers, who wanted people physically at work, against employees who would rather work remotely. Employers struggled with their return to work policies.

I advised employers to craft RTO policies with flexibility. While employers focus on maintaining their workplace culture, neither productivity nor an inclusive company culture hinges primarily on face-time in non-public-facing organizations.

RTO must be done thoughtfully and holistically. Returning to in-person work depends on the industry, size, what state the office is in, mask planning, and federal, state, and local law, including discrimination concerns and COVID-19 guidance.

As we have seen, rigid adherence to in-person attendance has led to quiet quitting. According to this Washington Post article,[Q]uiet quitting is a new term for an old idea, that of employee disengagement.”

Some workers define it as doing the bare minimum. Others frame it as setting reasonable boundaries and saying no to staying late or being endlessly reachable on email or Slack.

One of the most critical factors in quiet quitting is whether employees feel like they have good work-life balance… . Whatever the definition, the goal is the same: untangling employees’ identities from their jobs and leaving them with more time and energy to invest elsewhere.

https://www.washingtonpost.com/business/2022/12/28/quiet-quitting-rto-workplace-buzzwords-faq-productivitiy-paranoia/#UC5I6ODJI5HENAZGYZGWISLZAQ-1

Organizations seek engaged employees. Engagement drives productivity, which drives profit.

How can employers engage employees? Consider what your employees want before mandating in-person days in the office. Plan with flexibility and empathy.

Employers report concerns that employees are not as productive at home. While this is not often true, the solution lies in management: train your managers to document performance and engagement issues, by email, as they occur. In real time. Yes, the same day.

Employees want flexibility, and there’s really little reason not to provide it if you implement some management guardrails if productivity or performance flags.

What Else?

Sexual harassment in the workplace continued to headline.

Some states, like New York, added prevention measures to their anti-discrimination laws and requirements. For example, New York amended its human rights law to expand “retaliation” to prohibit an employer’s release or disclosure of an employee’s personnel file in response to a protected activity. And the Empire State established a statewide toll-free confidential hotline, 1-800-HARASS-3 (1-800-427-2773), for individuals who experience sexual harassment at work with actual lawyers providing pro bono assistance and counseling to callers.

Image by Gerd Altmann from Pixabay

The Equal Employment Opportunity Commission (EEOC) was pretty busy investigating charges of systemic sex discrimination and harassment.

It issued a new pregnancy rights poster to combat pregnancy discrimination and a new “Know Your Rights” poster, not once but twice in October!

The EEOC filed countless lawsuits and settled claims with employers (often for six figures) like this one against an employer whose manager fails to stop or report harassment.

I told you about this employer who got it right, exemplifying inclusive leadership by taking prompt action after receiving complaints of sexual harassment, communicating transparently with staff, and terminating the harassers after thoroughly investigating the matter.

The new, federal Speak Out Act now prohibits nondisclosure and nondisparagement provisions agreed to or before a dispute arises involving sexual harassment or sexual assault in violation of federal, tribal, or state law. (Yes, that italicized bit is important.)

Employers, having strong, clear anti-harassment policies, following those policies, and leading by example does help comply with the state and federal laws prohibiting sexual (and other) harassment.

Antisemitism reared its ugly head at work at the start of the 2022 and toward the end of the year with a well-known NBA player’s refusal to disavow antisemitism – these blogs remind employers about what they can do prevent antisemitism in workplaces. Many of you wrote to me in disbelief that antisemitism was still prevalent in 2022.

Employers received new pandemic guidance from the EEOC about COVID-19 testing.

And employers contended with novel issues such as whether and how to provide additional benefits to women seeking to terminate a pregnancy in the wake of the landmark Dobbs v. Jackson decision by the U.S. Supreme Court.

Mental health mainstreamed more at work after mental illness continued to surge, prompting the U.S. Department of Labor to launch a public awareness and education campaign on the importance of mental health-friendly workplaces. Check out the resources and toolkit that I linked to in this blog about DOL’s campaign.

We saw the significance of finally talking about mental health at work after results from one (pre-pandemic) study stated that nearly 85% of people say they’re uncomfortable discussing mental illness at work, and NAMI estimated that 8 in 10 workers with a mental health condition do not get treatment because of the shame and stigma associated with it.

I consider one of my greatest professional accomplishments this year to be organizing a mental health discussion group at my own workplace, which I wrote about here.

I wrote about much more, as did others, especially my law partner Eric Meyer, who writes a fantastic blog almost daily. If you missed the conversation between Eric, our law partner Christina Bost Seaton, and me earlier this month about employment updates for 2023, you can watch it on Eric’s YouTube channel.

There is so much more: new noncompete bans (or limitations), increased union activity, continued focus on equity and inclusivity, and additional paid family leave laws appeared in some jurisdictions.

This barely scratches the surface as 2022 pirouettes into 2023. Employers, you ready?

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.