Three Under-the-Radar Employment Laws Employers Should Know About in 2023

Jan 20, 2023

Amid holiday activities and a flurry of end-of-year deadlines, Congress somewhat quietly enacted three pieces of legislation that will affect employers nationwide. The new laws impose restrictions on non-disclosure and non-disparagement agreements, enhance benefits for nursing mothers, and solidify pregnant employees’ rights. Here is what employers need to know:

Speak Out Act

The Speak Out Act, which passed through Congress with overwhelming bipartisan support, permits employees to discuss workplace sexual harassment and sexual assault disputes without fear of violating a non-disparagement or non-disclosure agreement previously signed with their employer.

Non-disclosure provisions generally prevent employees from disclosing certain defined information, such as trade secrets, without the employer’s advance approval. Non-disparagement clauses restrict employees from making negative statements about the employer or another party. Both non-disparagement and non-disclosure provisions are common in employment agreements and in settlement agreements resolving workplace sexual harassment claims. Still, in passing the Speak Out Act, Congress found that such terms “can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation….”

The Speak Out Act makes any non-disclosure or non-disparagement agreement unenforceable as applied to sexual harassment disputes or sexual assault disputes. However, the restrictions do not apply to agreements between an employer and worker after a dispute arises, such as settlement agreements. This exception means that employers may continue to include enforceable non-disclosure and non-disparagement provisions when resolving allegations of sexual harassment or sexual assault.

The Act took effect on December 7, 2022 and applies to any claims filed after that date.

PUMP for Nursing Mothers Act

Buried in the massive 2023 Omnibus Spending Bill, the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) expands on employers’ obligations to support nursing mothers. Since 2010, federal law has required most employers to provide reasonable break time and a private location, other than a restroom, for employees to express breast milk during the one year following the birth of an employee’s child. Until now, however, the law excluded exempt employees.

The PUMP Act provides that all employees – exempt and nonexempt – must be paid for time spent expressing breast milk if expressed over an otherwise paid break or if the employee is not relieved from duty completely.

The PUMP Act applies to employers with at least 15 employees, but employers with fewer than 50 employees remain exempt from the requirements if they can demonstrate that the requirements would impose an undue hardship by causing the employer significant difficulty or expense. The PUMP Act also creates narrow exemptions for air carrier crew, rail carrier crew, and motorcoach operators.

The substantive requirements of the PUMP Act took effect on December 29, 2022, while some enforcement mechanisms will become effective in Spring 2023.

Pregnant Workers Fairness Act

Also tucked into the 2023 Omnibus Spending Bill, the Pregnant Workers Fairness Act (“PWFA”) reaffirms many protections for pregnant workers and applicants found in the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Based on a U.S. Supreme Court decision in 2015, employers were previously only required to provide reasonable accommodations to pregnant employees if they provided accommodations to others “similar in their ability or inability to work.” In other words, pregnancy was not treated as a disability under the law. The PWFA now expressly requires employers with 15 or more employees to engage in an interactive process and provide reasonable accommodations to employees or applicants who experience conditions related to pregnancy and/or childbirth unless providing the accommodation would impose an undue hardship.

Due to the substantial overlap between the PWFA and existing law, employers should take note of some critical differences.

  • Under the PWFA, an individual is a “qualified employee” entitled to the protection of the Act if the individual can perform the essential functions of the position with or without a reasonable accommodation or has only a temporary inability to perform an essential function and the inability can be reasonably accommodated.
  • The PWFA prohibits employers from imposing paid or unpaid leave if another reasonable accommodation can be provided.
  • The PWFA creates a defense to liability for failing to provide a reasonable accommodation if the employer demonstrates good faith efforts, in consultation with the employee, to identify and make a reasonable accommodation that would provide the employee “with an equally effective opportunity.”

The PWFA takes effect June 27, 2023, and the Equal Employment Opportunity Commission must issue regulations regarding the new law before the end of the year. Nonetheless, employers should continue to carefully consider issues affecting pregnant workers based on protections available under existing law.

If you have questions about the abovementioned laws, please get in touch with any K|W|W attorney. At K|W|W, your workforce is our priority.

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