End of Year Federal Employment Law Update: 2022

Jordan Walsh

In 2022, there were some impactful, but relatively quiet developments in federal employment law. These developments affect confidentiality, non-disparagement, and arbitration agreements, and create protections for pregnant and nursing employees. Employers are encouraged to consult with legal counsel regarding these changes to ensure their compliance with these changes.

1. No Mandatory Arbitration of Sexual Assault or Sexual Harassment Claims:

On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, (2021-2022) (the “Act”), into law. The Act amends the Federal Arbitration Act by rendering all pre-dispute arbitration agreements and pre-dispute joint action waivers entered into on or after March 3, 2022 invalid and unenforceable in the context of sexual assault disputes[1] and sexual harassment disputes[2]. H.B. 4445 § 402(a). Instead, the Act leaves it up-to the claimant to elect to arbitrate such claims; the claimant may not be compelled to arbitrate sexual assault and/or sexual harassment claims. Id.

The Act applies to all claims of sexual assault and harassment, regardless of whether the matter is brought under state, federal, or local law. Additionally, the Act expressly provides that regardless of whether an arbitration agreement authorizes an arbitrator to make a determination of arbitrability concerning claims arising under the agreement, a court, not an arbitrator, has the authority to determine the enforceability of an agreement in the context of the Act. Id. at § 402(b).

2. Limitations Concerning Non-Disparagement and Non-Disclosure Clauses:

On November 16, 2022, the United States Congress passed the Speak Out Act, Public Law No. 117-224 (the “SOA”), and President Biden signed the SOA into law on December 7, 2022. The SOA prohibits employers from using non-disclosure and/or non-disparagement agreements to prevent employees (or former employees) from speaking out about sexual assault and/or harassment that they either observed or experienced. The purpose of the SOA is to combat sexual assault and harassment by empowering victims and survivors to report and publicly disclose the alleged abuses they have suffered or observed, the SOA does not prohibit the general use of non-disclosure/non-disparagement clauses. The SOA at § 2(5). To accomplish this purpose, the SOA provides that any non-disclosure and/or non-disparagement clause[3] is not enforceable if:

The non-disclosure/non-disparagement clause was entered into on or after December 7, 2022 (SOA at § 5);
The non-disclosure/non-disparagement clause was entered into before[4] a covered sexual harassment dispute and/or sexual assault dispute arose (SOA at § 4(a)); and
The non-disclosure/non-disparagement clause requires the employee not to: (i) disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement related to a sexual assault dispute or a sexual harassment dispute; or (ii) make negative statements about another party that relates to the contract, agreement, claim or case (SOA §4(a)).

The SOA applies to claims filed after December 7, 2022, the effective date of the law, and does not affect the enforceability of non-disclosure and non-disparagement clauses executed in connection with disputes concerning claims filed before December 7, 2022. SOA at § 5. The statute does not otherwise specifically address the retroactivity of its application to existing non-disclosure and non-disparagement agreements.

3. Changes to the Laws Impacting Pregnant and Nursing Mothers at Work:

On December 22, 2022, the United States Congress passed the Consolidated Appropriations Act, 2023, H.R. 2617 (the “CAA”), and on December 29, 2022 President Biden signed the CAA into law. The CAA contains protections for pregnant and nursing mothers.

a) Adoption of the Pregnant Workers Fairness Act (“PWFA”):

The PWFA, was adopted as Division II, Section 101–109, of the CAA, and applies to employers with 15 or more employees, with some limited exceptions. Recognizing that pregnancy, childbirth, and related medical conditions create known limitations for female job applicants and employees, and that although such known limitations are temporary, they should nonetheless be accommodated by employers. The PWFA expanding protections for female employees experiencing temporary limitations related to pregnancy, childbirth, or a related medical condition. Like the Americans with Disability Act, the PWFA requires employers to (a) engage in an interactive process with qualified employees or applicants to determine what, if any, reasonable accommodation(s) may be made available to the employee/applicants, and to (b) provide the employee/applicant with a reasonable accommodation, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s operation. CAA Div. II, Sec. 103(1). Finally, the PWFA also protects employees and applicants from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation. CAA Div. II, Sec. 102(2)(B)(i).

The PWFA prohibits employers from:

Taking adverse actions, including denying employment opportunities, to women on account of their request for and/or use of a reasonable accommodation in accordance with the PWFA. CAA Div. II, Sec. 103(3), (5).
Requiring women covered by the PWFA to:
- Accept a particular accommodation other than a reasonable accommodation arrived at by engaging in the interactive process, or
- Take leave (paid or unpaid) when another reasonable accommodation can be provided. See id., Sec. 103(2), (4).

Under the PWFA, private sector employees are entitled to the same relief they would receive under Title VII of the Civil Rights Act of 1964. CAA Div. II, Sec. 104(a). Public sector employees are entitled to relief similar to the relief offered under the Congressional Accountability Act, Title V of the United States Code, and the Government Employee Rights Act of 1991. Employers can assert a defense to a damages claim concerning an alleged denial of a reasonable accommodation if the employer can demonstrate good faith efforts, in consultation with the employee or applicant to identify and make a reasonable accommodation that would provide an equally effective opportunity and would not cause an undue hardship on the employer’s operation. CAA Div. II, Sec. 104(g).

On a final note, the PWFA directs the Equal Employment Opportunity Commission to issue regulations providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions within one year of the enactment of the law. CAA Div. II, Sec. 105. Notably, the PWFA expressly waives the states’ sovereign immunity under the 11th Amendment with respect to lawsuits alleging PWFA violations.

b) Adoption of the Providing Urgent Maternal Protections for Nursing Mothers Act (the “PUMP Act”)

The purpose of the PUMP Act is to expand access to break time and space under the Fair Labor Standards Act of 1938 (the “FLSA”) for nursing mothers. As such, the PUMP Act amends the FLSA (29 U.S.C. 207(7)) by striking subsection (r) (Reasonable break time for nursing mothers) and adding the terms of the PUMP Act as a new subsection to 29 U.S.C. 218(c) (Protections for employees). CAA Div. KK, Sec. 102.

The PUMP Act provides that employers must:

Provide a reasonable break time for an employee to express breast milk for the employee’s nursing child ( Div. KK, Sec. 102 (cited as SEC. 18D(a)(1));
Allow a nursing employee to take reasonable breaks to express milk for a nursing child for up to one (1) year after the child’s birth (); and
Provide the employee with a private space, other than a bathroom, to express breast milk ( (cited as SEC. D18(a)(2)).
Ensure that the breast milk expression space is shielded from view and free from intrusions from the employee’s coworkers and the public.

Before filing a lawsuit due to an employer’s failure to provide a private space for breast milk expression, the employee must notify their employer of the alleged failure and allow the employer ten (10) days to become compliant. CAA Div. KK, Sec. 102 (cited as SEC. 18D(g)(1)); The 10-day notification period does not, however, apply if the employee was terminated because the employee requested the break time and place required by the PUMP Act, or opposed the employer’s lack of compliance with the Act, or if the employer has indicated it would not provide the needed private space. Id. at (g)(2).

The PUMP Act applies to all employers who employ 50 or more employees. Id. Div. KK, Sec. 102(a)(2) (cited as SEC. 18D(c)). Employers with fewer than 50 employees may obtain an exemption if they can show that compliance with the Act would cause significant difficulty or expense (considering the size, financial resources, nature, and structure of the business). Id. It is important to note that the PUMP Act expanded the lactation accommodation requirements in the FLSA, which previously applied only to non-exempt employees to all employees at a covered employer, regardless of their exempt or non-exempt status or the number of hours the employee regularly works. See id. Exceptions to the PUMP Act apply with respect to air carrier crewmembers, rail carrier employees who are members of a train crew involved in the movement of a locomotive or a rolling stock or who maintain the right of way (if certain conditions are met), and motorcoach service operator employees who are involved in the movement of a motorcoach (if certain conditions are met). CAA Div. KK, Sec. 102 (cited as SEC. 18D(d)-(f)).

The PUMP Act became effective upon adoption on December 29, 2022. CAA Div. KK, Sec. 103(a). Therefore, employers should immediately take steps to ensure compliance with the Act, and to determine what additional steps they may need to take under State law.[5] At this time, 30 states and multiple municipalities have adopted legislation addressing breast milk expression at work.

[1] For the purposes of the Act, a “sexual assault dispute” is defined as a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.” The HB 4445 § 401(3).

[2] For the purposes of the Act, a “sexual harassment dispute” is defined as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” Id. at § 401(4).

[3] For the purposes of the SOA, a non-disclosure clause is defined as “a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.” SOA at § 3(1). A non-disparagement clause is defined as “a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.” Id. at § 3(2).

[4] The SOA only applies to situations where a claim of sexual assault and/or sexual harassment has not already surfaced. The SOA does not apply to situations where a non-disclosure/non-disparagement clause is included in an agreement meant to resolve a sexual assault/sexual harassment dispute.

[5] The PUMP Act expressly provides that State laws and local ordinances providing greater protections to nursing mothers are not preempted by the Act. CAA Div. KK, Sec. 102 (cited as SEC. 18D(h)).