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  • 3.4.21

    New York employees are likely to soon receive paid leave to take their COVID-19 vaccination. One month after the New York State Assembly passed the bill, the New York State Senate unanimously voted 62-0 on March 1 to grant both private and public employees up to four hours of paid leave per injection to receive the COVID-19 vaccine. In his 2021 State of the State speech and budget, Governor Cuomo indicated support for paid leave for COVID-19 vaccinations, so New York employers should be prepared for the impending effectiveness of this legislation.

  • 3.4.21

    Illinois is not only poised to join the ranks of states that either prohibit or limit employers’ ability to evaluate applicants’ and employees’ criminal conviction records, but also implement a retaliation standard that more heavily favors employees. In February 2021, the Illinois legislature sent Governor J.B. Pritzker Senate Bill 1480 (SB 1480), which would amend the Illinois Human Rights Act and Illinois Equal Pay Act, among other state laws. The governor is likely to sign this bill into law in the very near future, so Illinois employers should expect to soon make substantial changes to their hiring and employment practices.

  • 3.4.21

    In an announcement sure to please many federal contractors, the Office of Federal Contract Compliance Programs (OFCCP) just declared that it is amending its 2020 Corporate Scheduling Announcement Letter (CSAL) list to remove all establishments previously selected to receive promotion, VEVRAA, and Section 503 focused reviews and compliance checks. What do federal contractors need to know about this March 2 development? 

  • 3.3.21

    President Biden wants to “help ensure unemployed Americans no longer have to choose between paying the bills and keeping themselves and their families safe from COVID-19.” Specifically, he has instructed the U.S. Department of Labor (DOL) to consider providing guidance to the state unemployment agencies to make clear that “workers have a federally guaranteed right to refuse employment that will jeopardize their health” and can still be eligible for unemployment insurance benefits. The DOL has now issued a Program Letter directing state unemployment compensation agencies to implement this provision. But how will the DOL determine what is an unsafe workplace when it comes to COVID-19? Will it require employees to demonstrate “More Than a Feeling”?

  • 3.2.21

    In a win for employers, the U.S. Court of Appeal for the 9th Circuit just ruled that heightened penalties for subsequent violations under California’s Private Attorney General Act (PAGA) cannot be imposed until the employer has been notified of the violation by the Labor Commissioner or a court. While the February 23 ruling in Bernstein v. Virgin America Inc. essentially reiterates the 2008 holding in a California state appeal (Amaral v. Cintas Corp. No. 2), the practical impact of the 9th Circuit’s decision is that California employers defending PAGA claims now have complete clarity on whether alleged California Labor Code violations will give rise to heightened penalties that would increase potential liability exposure. What do California employers need to know about this key ruling?

  • 3.2.21

    The U.S. House of Representatives just passed a landmark bill that aims to amend several federal laws to prohibit discrimination on the bases of sexual orientation and gender identity. The Equality Act, passed on February 25 by a vote of 224-206, previously passed the House in 2018 only to stall in the Senate. If passed by the Senate this time around, the law would go further than simply codifying the recent Supreme Court decision holding that “sex” includes a person’s sexual orientation and gender identity for purposes of Title VII. It would also add protections against discrimination and segregation on the bases of sex, sexual orientation, and gender identity for purposes of accommodations and education. What do businesses need to know about this development?

  • 3.1.21

    In the early morning hours of Saturday, February 27, the U.S. House of Representatives passed President Biden’s $1.9 trillion latest COVID-19 stimulus bill, containing a slew of employment-related initiatives that could have long-term impacts on American workplaces. Next up for the legislation known as the American Rescue Plan: the U.S. Senate, which is aiming to pass some version of the measure before March 14 – the date that a portion of the unemployment benefits from the last pandemic relief bill expire. What do employers need to know about this legislative proposal, which is inching ever-closer to passage?

  • 3.1.21

    With well over 1,600 COVID-19-related employment lawsuits already having been filed nationwide and over 350 in California alone, employers need to keep abreast of ongoing issues that impact the physical and remote workplace. With many California offices closed and employees performing their jobs remotely, one area where you need to be mindful is in the context of reimbursing your employees for their necessary business expenses. For example, in today’s remote environment, you may wonder whether you must reimburse remote employees for the use of their internet, utility bills, and the various items they have purchased for their new home offices. By examining some recent COVID-19 employment litigation filed in California, you can get a better picture of the risks that accompany remote work – and adjust your practices accordingly.

  • 2.25.21

    New York Senator Kristen Gillibrand and Connecticut Representative Rose DeLauro recently introduced the Family and Medical Insurance Leave (FAMILY) Act in Congress, a proposed law that would mandate partially paid leave for all employers. What do employers need to know about this potential new federal law introduced on February 4?

  • 2.23.21

    At the beginning of its 2021 legislative session, the Indiana General Assembly vowed to fast track a bill to provide civil tort immunity to businesses for damages arising on their premises from COVID-19. On February 15, less than two months into its session, lawmakers made good on their word with Senate Bill 1, which was signed into law by Governor Eric Holcomb last week. Senate Bill 1 shields certain Indiana businesses and individuals that permit the public to enter their premises from personal injury liability for damages arising from COVID-19. The new law also protects individuals and businesses from liability for COVID-19 damages that occur during activities they manage, organize, or sponsor. The good news for businesses is that the scope of the bill is quite sweeping and applies retroactively to all activity since March 1, 2020 – the beginning of the COVID-19 pandemic. The bad news is that the new law is vague with respect to protections in employment settings. What do Indiana employers need to know?

  • 2.22.21

    President Biden promised sweeping changes to U.S. immigration law should he be elected president. In accordance with these campaign promises, Democratic lawmakers have just introduced a sweeping immigration bill backed by the president. The U.S. Citizenship Act of 2021 reflects some of the priorities outlined by the president in an executive order issued on his first day in office. The bill’s lead sponsors — Sen. Bob Menendez, D-N.J., and Rep. Linda Sanchez, D-Calif. — just unveiled the legislation to provide an earned path to citizenship, address the root causes of migration and responsibly manage the southern border, and reform the immigrant visa system, among other things. However, the legislation faces an uphill battle in the closely divided Congress, with some lawmakers already suggesting a piecemeal approach might win more bipartisan support. What do employers need to know about the proposals contained in this legislation?

  • 2.18.21

    With over 40 million Americans having received at least one dose of the COVID-19 vaccine, Dr. Anthony Fauci recently declared that he expects the availability of vaccinations to significantly increase – predicting an “open season” on vaccine doses by as early as April. While he tempered this news earlier this week by noting that the vaccine may not be available to the general public until May or June, and President Biden announced in a February 16 town hall that he believes the country should have enough doses to vaccinate every American by July, these statements follow recent poll numbers indicating that 71% of those surveyed are willing to get vaccinated, up from 65% in late December and the highest number since July 2020. Despite the imminent widespread availability of vaccines and an increasing likelihood that workers will want to receive the shot, many employers remain unprepared to deal with vaccinating their workforces. What should employers do now to prepare for the imminent widespread distribution of vaccines? This alert provides a suggested 10-step plan for you to consider.

  • 2.18.21

    An Ohio driving school has recently filed an action alleging that its former employee retained its trade secrets after being furloughed amid COVID-19 and then used these materials to open a competing driving school. For employers in all states and industries, the case not only highlights the ongoing need to assess the steps you are taking to protect your trade secrets, but also how the pandemic may increase the potential for competitive threats to surface from within your current workforce.

  • 2.17.21

    The National Football League recently concluded its 2020 season with the Tampa Bay Buccaneers claiming a 31-9 victory over the Kansas City Chiefs in Super Bowl LV – but perhaps the bigger story is the league claiming victory over the COVID-19 pandemic to complete one of the most unique seasons in history. Once thought impossible by many, the NFL overcame significant odds to stage its season culminating in a successful Super Bowl (which included an underappreciated halftime show by The Weeknd). What lessons can employers learn from the NFL’s example given the challenges all workplaces face as a result of the COVID-19 pandemic?

  • 2.16.21

    Following a second COVID-19 outbreak at one of the country’s largest chicken processing plants, a California judge recently issued what is likely the first injunction in the nation against a meat processing plant over coronavirus safety. The ruling leaves in place the substance of a December 2020 temporary restraining order requiring the employer to take 20 specific steps to protect workers from the spread of the virus. The lawsuit was brought by the union that represents the employees at the plant. What can employers learn from this recent ruling?

  • 2.12.21

    Stopping short of completely eliminating quarantine requirements for people who have been fully vaccinated for COVID-19, the Centers for Disease Control and Prevention (CDC) just substantially relaxed its recommended isolation requirements for those who have completed the vaccine regimen. While certain restrictions still remain and the guidance is almost certain to change in the coming months, this new guidance provides employers yet additional motivation to encourage their workers to get inoculated. What do employers need to know about the February 10 announcement?

  • 2.12.21

    Labor officials with the newly installed Biden administration have begun their work dismantling many of the initiatives taken during the Trump era – and one of the beneficiaries of a new lenient approach to workplace protests seems to be a 12-foot tall inflatable rat. Through a series of actions taken in early February, the Biden team has seemingly breathed new life into Scabby the Rat, a common sight at many union protests across the country, and taken the next step in rewriting the labor-management relations playbook. What do employers need to know about this development?

  • 2.11.21

    Federal immigration officials recently announced that the annual process for determining who will be able to apply for an H-1B visa will be held in largely the same manner as it was held last year – meaning that the proposed wage-based selection system will be put off until at least 2022. The February 5 announcement from U.S. Citizenship and Immigration Services (USCIS) confirmed that it will accept applications from March 9 through March 25, once again using a lottery system to select which applications would be accepted. Those individuals selected will then be able to file their petition for the H-1B visa, which comes with the significant benefit of authorizing the visa holder to work in the United States. What do employers need to know in advance of this crucial time – and what can you do to prepare?

  • 2.11.21

    Since the COVID-19 pandemic began, the Centers for Disease Control and Prevention (CDC) has recommended the use of a face mask to help stop the spread of the virus. State and local governments followed suit, in some cases issuing directives requiring masks be worn in public areas, including the workplace. Yesterday, the CDC released a new report and guidance urging Americans to “double-mask” — wearing a cloth mask over a surgical mask — to slow the spread of COVID-19 and the more contagious variants of the virus. While the CDC’s latest guidance merely encourages double-masking, employers may want to track this recent development so that you are prepared to quickly pivot if compliance changes take place. Here’s what employers need to know about the February 10 release.

  • 2.10.21

    With public hesitancy regarding the COVID-19 vaccine still running high, employers are considering whether and how to encourage – or even incentivize – employees to get vaccinated. A significant issue that can be overlooked when approaching this topic is the fact that some vaccine recipients will probably experience mild-to-moderate side effects after being inoculated, particularly after the second dose. What can employers do to address this natural occurrence and ensure the majority of your workforce gets vaccinated?

  • 2.8.21

    As we recently forecasted, the House of Representatives has reintroduced a bill designed to radically transform the labor relations landscape, substantially tilting the playing field towards organized labor. The “Protecting the Right to Organize Act of 2021,” or PRO Act, was introduced on February 4 after an earlier version of the same legislation failed to clear the Senate last year. However, now that both houses of Congress and the White House are controlled by the Democratic party, this proposal stands closer than ever to becoming law. What do employers – both unionized and non-unionized – need to know about this startling prospect, and what can you do to help prevent it from becoming reality?

  • 2.5.21

    The Oakland City Council approved this week a Hazard Pay Ordinance requiring certain grocery store employers to pay an additional $5.00 per hour in hazard pay for all part-time and full-time employees, and comply with other new legal obligations. This Ordinance took effect immediately and is set to expire when Oakland’s risk level drops to “minimal” under California’s Blueprint for a Safer Economy (defined as an adjusted case rate of less than 1 daily new COVID-19 case per 100,000 people in the county). While there have already been court challenges to the new Ordinance, it currently remains in effect for all covered employers. Although this Ordinance is limited to large grocery store employers in Oakland, other California cities have already implemented similar hazard or “hero” pay ordinances, including Long Beach and Santa Monica. Los Angeles, San Jose, and Berkeley are considering similar proposals in the coming weeks. What do California employers need to know about this new law?

  • 2.5.21

    In the span of a single day earlier this week, President Joe Biden signed three Executive Orders on immigration while the Senate confirmed Alejandro Mayorkas as Secretary of Homeland Security – actions that will eventually have an impact on many workplaces around the country. February 2 marks another pivotal milestone in the Biden administration’s efforts to hit the reset button on the overall attitude of American immigration policy. The Executive Orders seek to promote the fair, humane, and efficient administration of our immigration system, in full recognition of the social and economic value that immigrants bring to our country, while Secretary Mayorkas’s role as head of DHS will bring about sweeping changes in the way in which the federal government handles immigration matters. By taking these clear and purposeful initial steps, the Biden administration took another step in its considered plan to move carefully and deliberately while undertaking the enormous task of revisiting, and potentially overhauling, our broken immigration system. What do employers need to know about these pivotal actions?

  • 2.3.21

    Citing the uncertainty surrounding the state of the law when it comes to offering incentives to employees who receive the COVID-19 vaccination, a collection of over 40 business groups and associations just submitted a letter to the Equal Employment Opportunity Commission seeking guidance on what’s allowed and what might violate federal law. The February 1 letter is the product of significant concern regarding the legality of a vaccination incentive program as summarized in a recent FP Legal Alert and highlighted in a just-released FP Flash Survey which revealed 43% of employers are unsure about how to proceed. What do employers need to know about this development?

  • 2.2.21

    The vast majority of employers are not considering mandating their employees receive the COVID-19 vaccine, instead choosing to encourage the shot – but a significant number of businesses remain confused and uncertain on whether and how to incentivize their workers to get inoculated. That’s according to a recent survey conducted by Fisher Phillips, with 700 respondents providing their thoughts between January 26-29. While employers can dive into the firm’s Vaccine Resource Center to obtain further information and resources, a quick review of these survey results also sheds light on the thinking of other businesses when it comes to this specific challenge.

  • 2.2.21

    If someone accessed your business’s computer systems without your authorization, did you suffer a data breach under Colorado law? Answering this question correctly is critical, because getting it wrong can expose you to government investigations and lawsuits. It may surprise you to learn that the answer to this question is not always a clear yes. You may be wondering how you can determine if the answer is probably no. If you are wondering, keep reading.

  • 2.1.21

    The Occupational Safety and Health Administration (OSHA) recently released new guidance on mitigating and preventing the spread of COVID-19 in the workplace in response to President Biden’s Executive Order on Protecting Worker Health and Safety. Here is what employers need to know about the January 29 release.

  • 2.1.21

    We continue to discuss one of the more complex areas of mine safety and health law – discrimination complaints. As we discussed in our previous article, Section 105(c)(2) of the Mine Act allows miners to file a complaint with the Secretary alleging discrimination if they believe they have been discharged, interfered with, or otherwise discriminated against for notifying the operator of an alleged danger or safety or health violation, or other protected activities under the law. 30 U.S.C. § 815(c)(2). The Commission is required to order the immediate reinstatement of the miner pending final order on the complaint if it is determined that the complaint was “not frivolously brought” as per an initial review by the Secretary. This could even happen on an expedited basis if the Secretary makes an application for such action. This article will explain what temporary reinstatement is and what steps operators can take to navigate this area of law successfully.  

  • 1.29.21

    The U.S. Supreme Court just refused to address the question of whether a carve-out in an arbitration agreement exempting certain claims from arbitration also exempts those claims from the agreement’s delegation of arbitrability to an arbitrator, dismissing a case it had originally agreed to rule upon. In the January 25 one-sentence order in Henry Schein Inc. v. Archer and White Sales Inc., the Court dismissed the case as improvidently granted, declining to substantively opine on the matter and letting the 5th Circuit Court of Appeals holding stand. The upshot for employers? For now, employers may look to the 5th Circuit’s decision for guidance on their ability to craft the scope of arbitration agreements in view of the presumption for arbitrability. Employers in the 5th Circuit (Texas, Louisiana, and Mississippi) should familiarize themselves with the ruling in order to ensure that the organization’s arbitration agreements reflect the employer’s choice of “who decides” whether a case is arbitrable.

  • 1.29.21

    On the heels of last week’s Executive Order by President Biden calling for an immediate increase in the minimum wage for federal government employees and federal contractors, Democratic lawmakers in Congress have proposed a more than two-fold increase in the federal minimum wage from the current $7.25 per hour to $15 per hour by 2025 – and a gradual elimination of the tip credit by 2027. While it remains to be seen whether the Raise the Wage Act of 2021, introduced in Congress on January 26, will ultimately be passed and signed into law, employers should expect that there could very well be an increase in the minimum wage on the horizon and prepare accordingly. What should you do to get ready?  

  • 1.28.21

    An often-overlooked free resource available to employers and practitioners, the Department of Labor’s opinion letters provide guidance to interpret federal wage and hour law. However, just as the Obama administration placed the practice of issuing opinion letters on hold during a seven-year window, many have speculated the Biden Department of Labor (DOL) will again end the practice. Doing so would deprive courts, employers, employees, unions, trade groups, practitioners, and the public at large of an invaluable resource. This article aims to provide a brief overview of what opinion letters are and the history behind them, how they provide a valuable resource, and why the Biden DOL should continue the practice.

  • 1.27.21

    Approximately 10 months after New York state enacted a law providing paid leave for New York workers who have been quarantined or isolated as a result of COVID-19 (COVID-19 Sick Leave), the New York State Department of Labor issued new guidance that significantly expands on employers’ obligations set forth in the statue. What do New York employers need to know about this latest development?

  • 1.27.21

    Mexican President Andrés Manuel López Obrador just signed into effect an amendment to Federal Labor Law that radically reforms its teleworking provisions – among other things, it will require employers to enter into written contracts with each remote worker on its workforce. The new law, signed by the president on January 11, took effect on January 12, 2021. What do Mexican employers need to know about this development?

  • 1.27.21

    One day is all it took for the Biden-Harris administration to repudiate the Trump-era crackdown on immigration. By issuing a series of Executive Actions, Presidential Memoranda, and Proclamations on January 20 and the days thereafter, President Biden demonstrated his administration’s commitment to undoing much of what his predecessor did over the past four years while also modernizing our country’s immigration system. He also unveiled his administration’s attempt to address the long-standing goal of comprehensive immigration reform through a detailed legislative proposal that will soon be taken up in Congress. What do employers need to know about these actions and what steps should employers take now as a result?

  • 1.26.21

    As predicted following Joe Biden’s election as President of the United States, the new administration announced last week that it has directed the federal Occupational Safety and Health Administration (OSHA) to consider whether emergency temporary standards concerning the COVID-19 pandemic are necessary. The White House asked OSHA to issue any such standards by March 15. If OSHA finds that the workers “are in grave danger due to exposure to toxic substances or agents…and that an emergency standard is needed to protect them,” the agency can adopt a temporary standard that will be effective immediately and won’t require many of the procedural requirements needed for a permanent standard. Any adopted temporary standard will be in place for at least six months and may eventually become permanent. Given the administration’s focus on keeping workers safe during the remainder of the pandemic (and beyond) and the streamlined procedural process for emergency temporary OSHA standards, you should begin to prepare now for the mandates that OSHA will include in a temporary COVID-19 standard.

  • 1.26.21

    Within the first days of taking office, President Biden signed many Executive Orders – one of which directs the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) to consider whether any emergency standards related to COVID-19 are necessary, particularly whether masks should be required in the workplace. If it determines such a standard is needed, OSHA must issue this emergency standard by March 15, 2021. No deadline was specified for MSHA.

  • 1.26.21

    The Food and Drug Administration has now approved two different mRNA COVID-19 vaccines (Moderna and Pfizer) under the FDA’s Emergency Use Authorization (EUA) to be distributed in the U.S. for use in persons 18 years of age and older. As the availability of the vaccine becomes more widespread, unionized businesses are now grappling with how best to protect the workplace while navigating the legal minefield regulating unilateral changes to working conditions.

  • 1.26.21

    Now that a COVID-19 vaccine is becoming increasingly available, how can employers encourage employees to receive it? Beyond requiring the shots as a mandatory condition of employment – which is not an option many employers are currently considering due to the many legal and employee relations questions it raises – one concept appears to be on the minds of most employers: offering employees incentives to take the vaccine. While this may be an attractive option to many employers, you need to understand the risks associated with various possible incentive programs before launching one at your workplace.

  • 1.26.21

    The San Francisco Board of Supervisors has just unanimously approved a proposed ordinance prohibiting retaliation against San Francisco employees who missed work after contracting or being suspected of contracting COVID-19. If the Mayor of San Francisco signs it or returns it unsigned, the legislation would codify an emergency ordinance that currently provides essentially the same employee protections on a temporary basis, and also modify the scope of the existing law to cover employer retaliation based on COVID-19-related absences. The new law would remove protections previously provided to independent contractors under the emergency ordinance, however, and would instead apply only to employees and applicants. San Francisco employers would also be required to provide notice to workers of the protections. What do you need to know about this impending development?

  • 1.25.21

    Recent legislative developments in the State of Illinois underscore the need for employers to review and revise their restrictive covenant agreements with their employees to maximize potential enforceability. Specifically, a bill has emerged in the state legislature that would significantly restrict employer use and enforcement of restrictive covenant agreements. What do Illinois employers need to know about this potentially game-changing development?

  • 1.25.21

    President Biden recently issued his National Strategy for the COVID-19 Response and Pandemic Preparedness, and an important component of the plan released on January 21 is to “jumpstart” the vaccination process. The administration has stated that it will “spare no effort” in aggressively ramping up the national vaccination program, and President Biden has promised a target of 100 million shots by the end of his first 100 days in office. We anticipate that employers will play an important role in achieving this goal.  

  • 1.22.21

    Where should an employer post federally required posters when many or most employees are working remotely? The U.S. Department of Labor (USDOL) recently released a Wage and Hour field assistance bulletin on December 23 addressing when electronic notice of notice will satisfy the notice requirements under various federal statutes. Before you throw away all your posters, however, here is what employers need to know about this new communication from the USDOL.

  • 1.22.21

    President Joe Biden has signed several Executive Orders in the first two days of his presidency, and one is an Executive Order on Protecting Worker Health and Safety that directs the Occupational Safety and Health Administration (OSHA) to increase enforcement of existing agency standards and investigate whether a new standard for COVID-19 mitigation is needed. Given that President Biden has nominated Boston Mayor Marty Walsh to be the next Secretary of Labor – the first union member to fill this role in nearly 50 years and soon to be in charge of the agency that oversees OSHA – employers should be aware of the key provisions of this executive order ahead of an increase in inspections. Here is what employers need to know.

  • 1.22.21

    Within hours of being sworn in, President Biden took the unprecedented step of firing the NLRB’s chief prosecutor, General Counsel Peter Robb. Robb’s abrupt termination represents the first time in the agency’s 85-year history that an incumbent General Counsel has been fired before the end of their term (although President Truman did seek and receive the resignation of the NLRB’s General Counsel in 1950, which is the closest the agency has ever come to a scenario like this). The move was prompted by Robb’s refusal to voluntarily resign as requested. Shortly thereafter, the new administration issued additional walking papers to Robb’s second in command, Deputy General Counsel Alice Stock. The next step will presumably be to appoint an acting General Counsel more sympathetic to union interests, as Biden’s team ponders potential candidates to submit to a Senate confirmation process that is not subject to filibuster. Businesses large and small will soon feel the impact of these moves as the new administration fulfills prior campaign pledges to organized labor. 

  • 1.22.21

    The new administration wasted no time in announcing its plan for tackling the COVID-19 pandemic, releasing a roadmap on January 21 on how it plans to address the crisis. The plan includes 12 initial executive actions, many of which have already been issued, and several of which could impact the workplace. What do employers need to know about this development?

  • 1.21.21

    The 6th Circuit Court of Appeals recently held that employers cannot contractually shorten the statute of limitations for filing suit under the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA). The court’s January 15 holding in Thompson v. Fresh Products, LLC, extended a prior ruling from 2019 that prohibited enforcement of abbreviated claims period provisions on Title VII claims (outside of maybe arbitration agreements). The upshot? The Thompson decision has further blunted Kentucky, Michigan, Ohio, and Tennessee employers’ ability to reduce employment discrimination liability exposure through abbreviated claims period provisions. This article addresses the court’s logic in Thompson, what the decision means for employers in the 6th Circuit’s jurisdiction, and what those employers can do in response to this ruling.

  • 1.21.21

    Ohio Governor Mike DeWine recently signed the Employment Law Uniformity Act into law, which will soon eliminate many administrative burdens and uncertainties for employers and human resources professionals while still providing Ohio employees with the same robust protections they currently enjoy. The legislation, signed by the governor on January 12 and taking effect on April 15, 2021, aims to resolve discrimination claims in a more timely, fair, and efficient manner for both Ohio employers and employees. At the same time, it will provide for more predictability in these kinds of actions, which will in turn allow for reasonable resolutions and a more economical use of resources. What do Ohio employers need to know about this impending new law – and what are the three steps you should take in preparation for it taking effect?

  • 1.21.21

    Will the new Democratic majorities in Congress invoke its statutory power to repeal some of the Trump administration’s recent regulations and guidance – including those pertaining to labor and employment law? The Congressional Review Act (CRA) empowers simple majorities in (both) the House and Senate to repeal a new regulation within 60 days of its submission or publication. There stands a good chance we could soon see the new majorities in Congress wield this power to nullify some of the Trump administration’s final regulatory actions.

  • 1.19.21

    President-elect Biden has unveiled an ambitious legislative package that would serve to not only provide a third wave of economic stimulus relief to address the impacts of the COVID-19 pandemic but also transform the American workplace. His January 14 announcement of the $1.9 trillion “American Rescue Plan” was met with initial support from many Democratic lawmakers and worker advocates – and an announcement of welcome by the U.S. Chamber of Commerce – but skepticism and objections from some Republicans. The bill will be an early test of Biden’s promise to seek bipartisan support for his legislative proposals, especially with no room for error in a 50-50 Senate. What would the American Rescue Plan mean for employers and the workplace in general?

  • 1.19.21

    For employers required to maintain work-related injury and illness records: it’s that time of year again. The Occupational Safety and Health Administration (OSHA) requires covered employers (establishments with 10 or more employees, except for certain “low-risk” industries) to prepare and post the OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, at their establishments from February 1 through April 30. Some employers must also electronically submit this information to OSHA no later than March 2, 2021. What do employers need to know to prepare and comply with these requirements?

  • 1.15.21

    When the House of Representatives passed the PRO Act last year with the aim of overhauling federal labor law for the benefit of organized labor, we predicted the legislation would stall in the face of the Republican Senate and an administration that was unlikely to sign it into law. As we said in our February 10, 2020 alert, Labor Gets Wishlist Bill Passed In House, “the chances of the bill actually becoming law in 2020 is virtually impossible. However, … the PRO Act could serve as a harbinger for an eventual pro-labor bill that could gain traction in D.C. should there be a change in the political winds in the White House or Senate in 2020.” With the election of Joe Biden to the White House and the Senate soon to be controlled by Democrats, it’s safe to say that the winds have quite clearly shifted.

  • 1.15.21

    COVID-19 has had a significant and deadly impact on some of New Jersey’s most vulnerable citizens who reside and work at long-term care facilities, such as nursing homes. On September 16, 2020, Governor Phil Murphy signed a package of laws to address issues at long-term care facilities that came to light during the pandemic. This includes a minimum wage increase for employees who provide direct care to residents of these facilities.

  • 1.13.21

    In a New Year’s Eve decision, the Oregon Supreme Court stripped employer-defendants of a powerful litigation tool in wage claim litigation. In a 5-2 decision, the Supreme Court held that an offer of judgment made pursuant to ORCP 54 does not cut off an employee-plaintiff’s right to collect attorneys’ fees. Based on the Mathis v. St. Helen’s Auto Center decision, employers must pay any unpaid wages within 48 hours of receiving a demand or face liability not only for the unpaid wages but also for the reasonable attorneys’ fees incurred by the employee seeking to collect those wages. This decision highlights the importance for Oregon employers to quickly seek the advice of counsel and respond to wage demands in a timely manner.

  • 1.12.21

    Washington, D.C. Mayor Muriel Bowser just signed into law one of the most restrictive pieces of legislation in the nation relating to employers’ use of non-compete agreements to prevent employees from working for competitors. The Act not only completely bans non-compete agreements for District employees, but also goes beyond the restrictions commonly contained in many other non-compete statutes by imposing strict notice and other requirements that differ from other existing laws. For example, employers will be required to provide employees with notice of the new law regardless of whether they use non-compete agreements, and are banned from preventing employees from being “simultaneously” employed elsewhere, effectively calling into question the viability of relatively common “moonlighting” prohibitions. 

  • 1.11.21

    The 2021 Kentucky General Assembly got underway last week and, as expected, the leaders wasted no time setting their COVID-19 legislative agenda. Of particular importance for Kentucky businesses is Senate Bill 5, which, if adopted, would provide personal injury liability protections to certain Kentucky businesses, schools and individuals. Specifically, businesses and individuals who directly or indirectly invite or permit another person onto their premises would be shielded from liability for injuries, loss, or other damages to that person arising from conditions subject to a declared emergency. The scope of the proposed law is quite sweeping in that it would apply retroactively to all activity since March 6, 2020 – the beginning of the COVID-19 pandemic. What do Kentucky employers need to know about this proposal?

  • 1.11.21

    Just before the New Year, Governor Whitmer amended state law and eased employers’ COVID-19 compliance burdens by deferring to the CDC’s guidance on when infected or exposed employees may return to work. The amendment was necessary to resolve the conflict between then-existing state law and the CDC's newest guidance on quarantine periods (related to exposed individuals) issued shortly after the law’s passage, as well as clearing up some administrative issues. This article aggregates all the changes made by the amendment by recasting how Michigan employers can comply with the amended COVID-19 law.

  • 1.11.21

    California Occupational Safety and Health (Cal/OSHA) further updated its COVID-19 Emergency Temporary Standards Frequently Asked Questions late last week in an attempt to provide more clarification and answer questions the agency has received about the COVID-19 Emergency Temporary Standard (ETS) that went into effect November 30, 2020. The update, released on January 8, provides some important clarifications but also leaves some questions unanswered. Below is an overview of some of the important updates and clarifications that all California employers should review. 

  • 1.11.21

    Given the tumultuous news that occupied all of our attentions last week, you may have missed the announcement that President-elect Biden has nominated Boston Mayor Marty Walsh to be the next Secretary of Labor – the first union member to fill this role in nearly 50 years. The January 7 announcement is significant for the employment community given that the head of the Labor Department wields tremendous influence over workplace policy. Naturally, most employers are curious about what this transition will mean for them. To answer that question, we’ve once again assembled the opinions of some of our firm’s foremost thought leaders to help provide a glimpse into what you should expect from the U.S. Department of Labor for the foreseeable future. The consensus opinion? Get ready for a pendulum swing back toward worker-centered policy that employers last experienced during the eight-year Obama administration. 

  • 1.11.21

    The U.S. Equal Employment Opportunity Commission (EEOC) just revealed two new proposed rules concerning how employers can encourage employees to participate in employer-sponsored wellness programs without violating federal law. Unlike the 2016 final rule iterations, these two new rules, released on January 7 and slated to be finalized in March 2021, provide that employers must offer much smaller incentives than previously permitted in order to comply with the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA). On the one hand, this should be welcome news for employers. Indeed, employers have been left without any guidance for how to incentivize employee participation in wellness programs without rendering them involuntary under the ADA and GINA since the 2016 final rules were nixed by a federal court order. On the other hand, as is commonplace when a new administration takes over, President-elect Biden announced that he plans to freeze all pending regulations for review before they are implemented, which could further forestall this limbo period for employers. Nonetheless, what should employers know about these new rules?

  • 1.8.21

    Overshadowed by the dramatic events in Washington, D.C. on Wednesday was the news that the electronic filing and case management system used in federal courts across the country may have been compromised by a serious security breach – serious enough that users have been advised to avoid submitting “highly sensitive” documents through the digital service. The Administrative Office of the U.S. Courts (AO) announced on January 6 that it is working with the Department of Homeland Security (DHS) to perform a security audit to identify a potential compromise to its Case Management/Electronic Case Files system (CM/ECF). What do employers need to know about this possible breach – and what lessons can you learn to avoid similar harm in your organization?

  • 1.7.21

    Given the significant impact that the pandemic has had on workplaces, and with the rollout of COVID-19 vaccines, many employers are considering whether to impose mandatory vaccination policies. Recently, the U.S. Equal Employment Opportunity Commission (EEOC)  clarified in its updated guidance that employers may be able to mandate the COVID-19 vaccine among their employees in certain circumstances without running afoul of key federal anti-discrimination laws. This does not necessarily mean that you can force all your workers to get COVID-19 shots, as there are numerous issues you will face if you choose to mandate vaccinations. One such issue is an employee's refusal to get the vaccine based on their sincerely held religious beliefs. 

  • 1.7.21

    After much heated negotiation in passing Stimulus 2.0, Congress reached a compromise on employee COVID-19 leave, allowing the leave requirements of the Families First Coronavirus Response Act (FFCRA) to expire on December 31, 2020, but continuing tax credits through March 31, 2021 for employers who choose to voluntarily provide paid leave after that date. Now that employers with fewer than 500 employees are no longer obligated to provide FFRCA leave, many are left wondering whether they should continue to provide leave for their employees who are impacted by COVID-19. This article aims to provide an overview of the state of the law and provide employers with the pros and cons of continuing to provide FFCRA leave to make the best decision for their workplace.

  • 1.7.21

    The Labor Department finalized a new rule today that aims to make it easier for businesses to classify workers as independent contractors – but the rule faces a very uncertain future given that the Biden administration will take the reins of the federal government before it is scheduled to take effect and the incoming administration has signaled its opposition to this change. Businesses that use independent contractors to carry out critical work roles – especially gig economy companies and those using gig-economy-like strategies for components of their workforce – have long awaited this rule in the hopes that it would lend certainty to modern business models and reduce litigation brought by workers claiming to be misclassified as employees. But celebrations need to be put on hold for now, as we expect President-elect Biden to at least temporarily stall implementation past its planned March 8 effective date while worker advocacy groups and state attorneys general line up to file legal challenges in the hopes of permanently killing the rule.

  • 1.4.21

    Employers in the manufacturing industry have emerged as a prime target of COVID-19 workplace litigation. In fact, according to the Fisher Phillips COVID-19 Employment Litigation Tracker, manufacturing is the second-hardest hit sector in the country, facing 9.1% of all COVID-19 workplace claims filed (trailing only the healthcare industry which, for obvious reasons, dominates the field at 22.3%). Given recent trends, manufacturing employers everywhere should be aware of the lawsuits that may be coming in the states where they operate – and should adopt our five-step recommended plan to avoid facing litigation in the new year.

  • 12.31.20

    The U.S. Department of Labor just confirmed that employees who seek medical treatment via telemedicine visits could qualify for leave under the Family and Medical Leave Act (FMLA) into the new year – and perhaps beyond. While there may have previously been confusion or uncertainty about whether remote visits to a healthcare provider should be considered as valid “treatment” that would render an employee eligible for protected time off under federal law, the agency’s December 29 guidance offers the first definitive word from federal authorities in the wake of the COVID-19 pandemic that this temporary policy will be extended for the foreseeable future. The agency also released an update on how employers can satisfy federal posting requirements via electronic communication methods. What do employers need to know about these latest developments?

  • 12.31.20

    Georgia Governor Brian Kemp issued a December 30 Executive Order — effective through January 15 — that reduces the coronavirus quarantine period for those exposed to the COVID-19 virus to either seven or ten days for most businesses. In all other respects, the December 30 Executive Order keeps in place the provisions from the September, October, and November Executive Orders. What do you need to know about this order, and what should you do as you continue to reopen and operate your business?

  • 12.29.20

    The U.S. Department of Labor issued a long-awaited final rule right before Christmas addressing the issue of tipped employees. The final rule, released on December 22 but not effective until February 20, 2021, provides guidance for both employers who utilize a tip credit and also for how employers who pay at or above minimum wage may handle tip pools without running afoul of federal wage and hour law. A big question remains, though: how will the incoming Biden administration handle this issue? Employers in the hospitality sector will want to pay attention to this latest development – and stand by for potential further developments – as we head into 2021.

  • 12.28.20

    A federal judge just issued a preliminary injunction to stop government enforcement of a controversial presidential executive order that severely curtailed the ability of federal contractors to offer diversity training on subjects such as systemic racism and unconscious bias. The December 22 ruling does not impact all provisions of E.O. 13950, just the specific portions in Sections 4 and 5 that created new requirements for federal contractors (new contract clause provisions and trainings) and federal grants (grant program certification regarding use of funds). The ruling frees federal contractors to once again offer typical workplace training sessions without fear of government reprisal for the time being, and given that the days of the Trump administration are quickly waning, it appears that employers will be free to provide such training for the foreseeable future.

  • 12.24.20

    The New York City Council just passed two bills (Int. 1396-A and 1415-A) that limit when a fast food employer can discharge fast food employees, only permitting terminations for “just cause” or for a “bona fide economic reason” – both of which the employer must prove if challenged. The new law, passed on December 17 and taking effect on July 4, 2021, turns fast food workplaces into de facto unionized environments, with “fast food employees” in New York City having workplace protections equal to – and in some ways, greater than – employees who are represented by a union. This should not be surprising given one of the major proponents of this legislation was 32BJ SEIU, one of New York City’s largest service unions. The new law tacks on and add new sections to the previously passed Fair Workweek Law (the FWW), utilizing the same definitions under the FWW and building upon the enforcement mechanisms provided to New York City’s Department of Workplace and Consumer Protection (DCWP). In addition, the new law allows for discharged employees to take their case to arbitration, using a framework set up by the DCWP. What do fast food employers need to know about the new law?

  • 12.24.20

    Right before the Christmas holiday, the Colorado Department of Labor and Employment (CDLE) released new guidance requiring that all employers supply up to an additional 80 hours of Public Health Emergency Paid Sick Leave to all employees beginning on January 1, 2021 under the Healthy Families and Workplaces Act (HFWA). What do Colorado employers need to know about this unexpected gift delivered on December 23?

  • 12.23.20

    The NLRB recently issued a pair of advice memos governing the obligation of parties to engage in remote collective bargaining and to negotiate over the concept of hazard pay in the context of the COVID-19 pandemic. These memos offer a glimpse into how the agency may address similar issues moving forward, and are thus valuable sources of information for employers. While the letters were both issued in mid-November, they were not released to the public until December 14. What can employers learn from these advice memos?

  • 12.22.20

    A federal appeals court just confirmed an uncomplicated interpretation of the “specialty occupation” definition for H-1B visas, clearing the way for a wide variety of industries to seek these highly sought-after visas. At the same time, the 9th Circuit Court of Appeals’ December 16 ruling offers employers an additional asset in their toolbox when it comes to challenging denied H-1B applications. What do you need to know about this decision and how might it work in your favor?

  • 12.22.20

    Following the CDC’s designation of Tennessee as the worst state in the country for new COVID-19 cases by population, Governor Lee issued Executive Order 70 urging all employers to implement remote work arrangements. The Executive Order is effective and enforceable as of December 20 and will remain in effect until January 19, 2021.

    Additionally, the Shelby County Health Department issued Health Order and Directive No. 16, which becomes effective on December 26, strongly urging all residents to shelter at home, directing employers to ask non-essential employees to stay home and implement telecommuting practices, and mandating closure of non-essential businesses. The Health Order and Directive will continue through January 22, 2021. What do area employers need to know about these latest developments?

  • 12.22.20

    Federal lawmakers agreed to a second round of stimulus legislation late last night, sending a nearly 6,000-page bill to President Trump for his expected signature. The proposal allocates $900 billion in economic relief to businesses and workers across the country. Of the many provisions tucked within the mammoth bill are several key provisions of interest to employers. Specifically, the proposal continues the popular small business loan program, provides new options for unemployed workers, extends tax credits for continued paid sick leave, and offers a variety of other tax- and benefit-related provisions. It does not, however, create a liability shield for COVID-19 litigation. What do you need to know about the critical workplace-related portions of Stimulus 2.0? Here are summaries of the most significant employment-related provisions and recommendations for actions you should consider as a result of each.

  • 12.22.20

    The country breathed a collective sigh of relief last week when the first doses of the Pfizer-BioNtech COVID-19 vaccine were shipped out to all 50 states. Following shortly behind, the first doses of the Moderna vaccine were shipped out this week. Healthcare workers and long-term care residents were given priority to receive these first doses. But Americans will need to get into the queue for the later doses. With vaccine supplies limited, where will your employees fall in the line of priority? The answer to this question is not easily determined, as the recommendations from the experts continue to change. This article, however, will address the likely considerations and guidance that will be used in determining the priority for distribution of the vaccine, and provide five steps employers can take now to prepare for the next steps on the roll-out.

  • 12.22.20

    Further restrictions on New York City employers’ ability to take adverse action against applicants or employees based on their criminal history are on the horizon. The New York City Council just passed a bill which will significantly expand the scope of the New York City Fair Chance Act (FCA). If enacted, the bill would impose restrictions on an employer’s ability to take any adverse action against an applicant or current employee based on pending criminal charges or arrests — currently not covered by the FCA — and will also extend the FCA to cover current employees convicted of a crime while employed. After passing the council on December 10, the legislation now goes to Mayor DeBlasio, who signed the FCA into law in 2015. Mayor DeBlasio has 30 days to sign, veto, or take no action on the legislation. Given his prior support for legislation in this area and other workers’ rights laws, the mayor is not expected to veto the bill. Accordingly, NYC employers should be prepared for changes to the Fair Chance Act.

  • 12.17.20

    Employers now have clarification that they will be able mandate the COVID-19 vaccine among their workers in certain circumstances without running afoul of key federal anti-discrimination laws, according to updated guidance issued Wednesday by the Equal Employment Opportunity Commission. While there are numerous issues to consider before mandating that your employees get vaccinated, this guidance is the first official pronouncement on the subject from the employment law watchdog agency and provides an outline of various hurdles to overcome. Here are the top seven takeaways for employers from this critical development.

  • 12.17.20

    With January 1, 2021 quickly approaching, it’s crunch time for New York employers to prepare to comply with the new statewide sick leave law. New York employers have been grappling with questions surrounding the New York Paid Sick Leave law (NYPSL) since the legislation was enacted in April. So far, guidance from the state has been limited, and comes in the form of a new New York State sick leave website and proposed regulations released on December 2, 2020. While the guidance leaves many important questions unanswered, we have rounded up employers’ frequently asked questions about the NYPSL to help you prepare for implementation.   

  • 12.17.20

    With such little fanfare that it may have escaped many employers’ attention, the Kentucky Labor Cabinet’s Department of Workplace Standards recently implemented final amendments to its injury and illness recordkeeping and reporting requirements. Originally proposed in February but delayed due to the COVID-19 pandemic, these new rules quietly took effect without an accompanying announcement from the state. But make no mistake – the changes that are now on the books will affect your injury and illness reporting in Kentucky. What do you need to know about this critical development?

  • 12.15.20

    Change may be on the horizon in Mexico as its Congress deliberates a new bill that, if passed, would outlaw outsourcing and subcontracting employees under most circumstances and absent government approval. This proposed bill, which was sent to the Mexican Congress on November 12 by President Andres Manuel Lopez Obrador (AMLO), aims to end what has been identified as corruption in employment practices. On December 9, AMLO signed an agreement with labor unions and business leaders to continue negotiations over the contents of the bill until February, when Congress returns from its winter break. The negotiations include the possibility of capping certain companies’ profit-sharing rates to ease the burden of hiring workers directly. As currently worded, the new law would have a dramatic impact on Mexican employers and foreign companies doing business in Mexico alike. What do employers need to know about this significant development?

  • 12.15.20

    Governor Gavin Newsom just issued an Executive Order that potentially reduces the quarantine exclusion period for COVID-19 exposed employees in California under a recently approved Emergency Temporary Standard (ETS) issued by Cal/OSHA. Yesterday’s action is consistent with recent quarantine guidelines issued by the CDC and reduces the amount of time employers are required to exclude COVID-19 exposures from the worksite under the new Cal/OSHA regulation. What do California employers need to know about this development?

  • 12.15.20

    As the COVID-19 pandemic rages on and continues to hammer businesses, workers, and lifestyles with record-high infection rates and hospitalizations, companies still face challenges in ensuring employees comply with critical safety and health policies. With most people following guidance from the Centers for Disease Control and Prevention (CDC), state and local guidance regarding the use of face coverings, social distancing, and curtailing travel during the holidays, even a few outliers can create considerable headaches. Despite your best efforts, this can thrust employers into an unwelcome spotlight. This is especially true when the offenders work in a sensitive industry like healthcare.  

  • 12.14.20

    As we approach a new year, California employers should take a fresh look at their employee handbook to ensure that it is up to date. Unless it was revised recently, it’s probably outdated. What are the main revisions that need to be made in order to keep up with the times as we head into 2021?

  • 12.14.20

    Last week was another one of those whiplash weeks for Pennsylvania employers, especially those with operations in Pittsburgh. On December 9, Mayor Bill Peduto signed Pittsburgh’s Temporary COVID-19 Emergency Paid Sick Leave Ordinance, which immediately gave certain workers in the city up to an additional 80 hours of paid sick time. Then, on December 10, Governor Wolf and Secretary of Health Dr. Rachel Levine announced new orders that, starting December 12, prohibit certain in-person operations and reduce capacity until January 4. So what do Pittsburgh employers – and all other businesses throughout Pennsylvania – need to know? Here are the key highlights to consider.

  • 12.14.20

    As most know by now, the Food and Drug Administration (FDA) granted emergency use authorization for Pfizer’s COVID-19 vaccine in the U.S on Friday, December 11, and the first Americans began to receive the vaccine this morning. The government is expecting an initial 2.9 million doses of the vaccine to be distributed in the coming weeks, and projections indicate that there may be enough vaccine to reach the vast majority of Americans who want to take it by early April 2021. Given the astronomical rise in the infection rate and the death rate topping 300,000, employer interest in the vaccines is extremely high. Thus, employers are asking whether they can, or should, require employees to take the vaccine. What do you need to know about this game-changing development?

  • 12.14.20

    Beginning on January 1, 2021, Florida’s new “Verification of Employment Eligibility” statute will require many employers to use the federal E-Verify system before hiring any new employees. This new law could force significant changes to your hiring practices. What do Florida employers need to know about this significant development?

  • 12.11.20

    The news this week that a Manhattan-based state lawmaker wants to require most New York residents to receive the COVID-19 vaccine brought renewed interest to an issue that has crept into the consciousness of just about every employer across the country: whether employers can – and should – mandate that their employees receive the vaccine. It is a thorny issue that requires an examination of company culture, industry-specific guidelines, geographic location, and a variety of other factors, not to mention a consideration of disability-related and possible religious accommodations. What do New York employers need to know about this current development and the bigger question about mandatory vaccines?

  • 12.9.20

    With just weeks to go before the expiration of many stimulus programs aimed at stemming the pain of the pandemic, federal lawmakers are hurriedly working on a compromise legislative proposal to provide another round of economic relief for businesses and workers alike. When a bipartisan group of House members and Senators unveiled their framework for a $908 billion plan on December 1, the outline included several items of critical interest to employers. While the situation remains very fluid and changes are likely to take place before any such legislation is finalized, here is a current snapshot of the three most significant workplace law provisions included in the latest compromise proposal – and the three most significant items not (yet) addressed.

  • 12.9.20

    As cases of COVID-19 continue to spike across the country, North Carolinians must abide by more stringent restrictions under a Modified Stay-at-Home Order released yesterday. While the Order continues requirements for face coverings and social distancing, as well as limitations on gatherings, it also increases restrictions on certain businesses. What do North Carolina employers need to know about this latest development?

  • 12.9.20

    The CDC recently adopted a recommendation from an advisory committee that healthcare workers should be the first in line to get COVID-19 vaccine shots after they receive approval from the Food and Drug Administration (FDA). But healthcare workers include a wide range of different people. Hospitals, for example, employ far more workers than doctors and nurses. What about, for example, respiratory therapists, nursing assistants, lab personnel, food service workers, custodians and administrative staff? Should they also be among the first to receive the vaccine? If they do, will healthcare employers have enough of the vaccine to provide it to all these employees? And the process of administering the vaccine will be far more complex than simply that asking staff to line up and take a shot considering the extremely low-temperature storage requirements and the thawing and mixing process also involved. Prioritization and distribution logistics will be tremendously important. What do healthcare employers need to know about this critical development to prepare for tomorrow?

  • 12.7.20

    In a major blow to the Trump administration, a federal court recently struck down two immigration rules that would limit the ability of skilled foreign workers to obtain H-1B visas. In a December 1 ruling, the U.S. District Court for the Northern District of California set aside interim final rules from the Department of Homeland Security and the Department of Labor that aimed to limit foreign workers’ employment and raise the minimum salaries that employers would need to pay them in order to qualify for the popular visa program. The court found that both rules violated the Administration Procedure Act’s comment and notice period, finding that defendants “failed to show there was good cause to dispense with the rational and thoughtful discourse that is provided by the APA’s notice and comment requirements.” What do employers need to know about this development?

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