Year-end push produces new federal employment laws

Blog Post

With the clock ticking down on the current session of Congress, legislators in the House and Senate found a way to work together on several issues impacting the workplace which have now been signed into law by President Joe Biden. 

The Respect for Marriage Act

On December 13, 2022, President Biden signed the Respect for Marriage Act. This legislation codifies the landmark legal protection for same-sex marriage recognized by the Supreme Court in the Supreme Court’s 2015 Obergefell v. Hodges decision.

The provisions of the Respect for Marriage Act

Although same-sex marriage has been legal since the Obergefell decision, the new act is intended to address concerns following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which overturned federal protection for abortion rights, that Obergefell and same-sex marriage could be subject to the same fate.

To avoid that outcome, the Respect for Marriage Act officially repeals the Defense of Marriage Act that defined a spouse as being only a person of the opposite sex. Further, the act requires the federal and state governments to recognize any marriage between two individuals that is valid under any state law. The act does not, however, require states to grant marriage licenses to same-sex couples, but provides that those states that do not must still recognize a valid marriage occurring in another state. Beyond same-sex marriage, the act also protects marriage between two individuals on the basis of race, ethnicity, or national origin.

At the same time, the act recognizes the Constitutional right of free exercise of religion by allowing non-profit religious organizations to decline to “provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” Further, the act states that is not to be “construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution or Federal law.

Employer takeaways regarding The Respect for Marriage Act

While the Respect for Marriage Act does not confer any additional rights, it does ensure that the rights that same-sex couples have had since Obergefell, including in the employment context access to benefits for spouses, are protected in the event that case is overturned. 

The passage of this law is a timely remainder to employers to review employee benefit plans and employment policies to ensure same-sex and opposite sex spouses receive equal treatment. In addition, employers should review EEO training for coverage of all protected categories, including sexual orientation and gender identity.

The Speak Out Act

As its name suggests, the newly enacted Speak Out Act is intended to make it easier for employees to speak out against sexual harassment or assault in the workplace by limiting the scope of non-disclosure and non-disparagement agreements. While it’s called the Speak Out Act, President Biden signed this new bi-partisan law with little fanfare on December 7. 

The provisions of the Speak Out Act

To provide a broader avenue for addressing sexual harassment and sexual assault claims, the Speak Out Act prohibits enforcement of pre-dispute non-disclosure and non-disparagement agreements related to sexual harassment or sexual assault. Essentially, this laws means that employers cannot “gag” employees by requiring them to sign agreements not to talk about sexual harassment or sexual assault allegations before such a concern or dispute even exists.

Although there is some uncertainty in the language about when a “dispute” arises, it appears that an allegation of sexual harassment and sexual assault is sufficient to be considered a “dispute.” This means that employers will be able to include enforceable non-disclosure and non-disparagement clauses in settlement agreements resolving allegations of sexual harassment and assault.  This preserves an important element in resolving such claims.

The act was effective on December 7, 2022, and applies to any claims after that date. A number of states, such as California and New York, already have similar laws.

Employer takeaways regarding the Speak Out Act

This act means that employers who use general pre-dispute non-disclosure and/or non-disparagement agreements will find that those terms are not enforceable in sexual harassment or sexual assault situations.

To comply with the Speak Out Act, employers will want to review and possibly revise standard documents that are likely to contain broad non-disclosure and/or non-disparagement provisions, such as employment agreements, confidentiality agreements, and employee handbooks and policies.  Employers who use template separation agreements should also consult with employment counsel to review whether modifications are necessary to comply with the new law.

What’s next in employment legislation?

The Respect for Marriage Act and the Speak Out Act enjoyed bi-partisan support on their road to the White House. The new Congress will have divided control, which likely means that employers will see little in the way of new federal employment legislation in the next two years. What employers can expect to see is more agency rulemaking and more enforcement activity as a way of moving the president’s agenda along. Many employers will recall this approach during the Obama administration. In addition, as employers are well aware, states continue to churn out a wide array of employment laws that require a tailored approach by multi-state employers.

As usual, employers will need to stay tuned for 2023, it could be a bumpy ride. 

The McDonald Hopkins Labor & Employment team is available to assist employers with compliance with the new federal laws and other new employment obligations that become effective in 2023. 

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