Employment Law Blog

On January 26, 2022, new legislation expanding workplace anti-retaliation protections took effect in New York, extending rights to both public and private sector workers who report employers’ illegal or dangerous business activities. This new version of the statute is the culmination of more than 40 years of tireless work by Outten & Golden Co-Founder Wayne Outten to expand whistleblower rights.

As work-from-home arrangements remain widespread, more employees wonder if their employers are monitoring their email, electronic messaging, or Internet browsing activity (whether they work on employer-issued or personal devices) and whether such surveillance is actually legal. While a recently-enacted New York law does not shed light on which forms of electronic surveillance are lawful, it obligates employers notify employees in writing if they are planning to engage in such a monitoring.

Many employers require employees to sign non-compete agreements that prohibit them from starting new employment with a competitive business, starting their own competing business, or even providing similar services for a finite period of time, within a specific geographic area, or that subject them to other similar conditions once their employment ends. Studies have shown that non-compete agreements are harmful for workers, preventing mobility, weakening wage growth (by restricting an employee’s ability to leave for a higher paying job), and limits the starting of businesses. Non-compete agreements have become increasingly common in recent decades, with between 30-60 million American private-sector workers subject to these restrictive covenants.

California’s state legislature passed a new law on August 30, 2022 that would significantly advance the fight for pay equity. Under the law, which must be signed or vetoed by Governor Gavin Newsom by September 30, California employers would be required to post salary ranges for job postings. Further, employers with over 100 employees in the state would be required to submit a pay data report to California’s Civil Rights Department disclosing pay by race, ethnicity, and gender in specified job categories.

When it comes to the process of finding a new job, negotiation is one of the most tenuous areas for many employees. Many employees have anxiety around asking for “too much” while still getting a fair offer, and this can give employers the upper hand during these conversations. While many people focus on salary and other economics, more employees are using the negotiation stage to ask for other perks.

Executives are looking for new opportunities and finding them. While some companies are not willing to give executives the full protection of an employment agreement and only provide a vague offer letter, there should always be a negotiation over the essential terms of any new opportunity, including the description of the position and reporting line, the compensation and equity offered and clear definitions around termination and dispute resolution.

A new documentary on Netflix called White Hot: The Rise & Fall of Abercrombie & Fitch explores A&F’s pop culture reign and how it thrived on exclusion. In the documentary, O&G partner Jahan Sagafi discusses his work prosecuting the nationwide race and gender discrimination class action against this "All-American" fashion company that was sued for behaving in such an unamerican way.

This week, Congress passed what may shape up to be one of the most groundbreaking employment laws passed in the last decades. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (H.R. 4445) amends part of the Federal Arbitration Act that props up forced arbitration agreements for sexual harassment and sexual assault claims. Because of this new law, victims of sexual harassment and assault will no longer be silenced or forced to give up their day in court and will be able to publicly hold perpetrators responsible. We hope that this may soon also be the case for workers who are victims of other forms of workplace discrimination and wage theft, ending forced arbitration for all workers’ rights violations.