- What Employers And Educational Institutions Need To Know About EEOC’s Proposed Guidance On Religious Discrimination11.24.20
The EEOC recently released a draft of its updated guidance on religious discrimination, which – if adopted and finalized – could alter the legal standards applied in workplace disputes for the nation’s employers generally and educational institutions specifically. While the November 17 release will not be finalized and adopted until a public comment period expires in mid-December and the commissioners have an opportunity to address specific concerns, the upcoming changes at the White House will not necessarily slow down the process. What do employers need to know about this development?
The Centers for Disease Control and Prevention (CDC) recently released updated guidance recommending that critical infrastructure employers only permit asymptomatic workers to continue working after potential COVID-19 exposure in limited and rare circumstances. The updated guidance, released on November 16, continues to provide an exemption from the usual 14-day self-quarantine recommendation for critical infrastructure workers who have had a close contact exposure to an individual with a confirmed or suspected case of COVID-19, but now recommends the exemption should only be exercised as “a last resort and only in limited circumstances.” Further, it recommends that only employers involved in or impacting “public health and safety” can enjoy this exemption. What do employers need to know about this new guidance?
- Recent CDC Guidance Could Bolster Argument For Cloth Face Coverings To Be Personal Protective Equipment11.23.20
A recent update from the Centers for Disease Control and Prevention (CDC) could eventually lead federal workplace safety authorities to conclude that employers have significant additional obligations when it comes to their employees wearing cloth face masks. While the heavy lifting may not start until President-elect Biden takes office, employers may want to track recent developments so you are prepared to quickly pivot if compliance changes do take place.
The Cal/OSHA Standards Board just adopted an emergency standard related to COVID-19 prevention in the workplace, imposing some significant requirements on California employers. Most notably, the new rule finalized yesterday provides that employees excluded from work for having or being exposed to COVID-19 must continue to be paid while they are off work.
Employers do not have a lot of time to comply with the new mandates. Following adoption of the emergency proposal, the Standards Board will submit the language to the Office of Administrative Law, which will have 10 days to review and approve the proposal. Therefore, this complex new standard may be in effect by as soon as November 29.
The emergency regulation will be in effect for 180 days, and can be extended. It is anticipated that Cal/OSHA will move forward with regular and permanent rulemaking on this topic during this period of time.
This new standard will require California employers to take immediate action on many COVID-19 fronts. So what do California employers need to know? Here are the top nine takeaways for California employers – including specific recommendations about what you need to do in response to each new obligation.
As the pandemic rages through Kentucky and the holidays right around the corner, Governor Beshear just issued an executive order mandating significant restrictions on businesses to slow down the escalating spread of COVID-19 – with restaurants and bars being one of the hardest-hit industries. However, the order contains a financial path forward for businesses impacted by the new round of closures. What do Kentucky hospitality employers need to know about these new developments?
In an attempt to curb the rapid community spread of COVID-19 in the Commonwealth, Kentucky Governor Andy Beshear just issued new restrictions, effective November 20, that will impact employers across the state. While the governor specified that the new restrictions were not a “shutdown,” certain businesses will certainly feel the squeeze more than others as the new executive order further limits certain specific industries. What do Kentucky employers need to know about this latest development?
The Oregon Occupational Safety and Health Administration recently adopted a temporary rule requiring employers to implement safety measures to reduce the spread of COVID-19. The rule, which took effect November 16 and remains in effect through May 4, 2021 – requires you to complete an Exposure Risk Assessment and Infection Control Plan by December 7 and provide employee training by December 21. These dates are rapidly approaching, so your compliance efforts need to begin immediately. What do Oregon employers need to know about this significant development?
The National Labor Relations Board recently ruled that an employer could not discipline a group of protesting employees who reported to work in street clothes instead of their uniforms to draw attention to a uniform shortage. The Board’s October 28 decision found the employees’ protest was protected concerted activity and did not cross the line to an indefensible unprotected strike or work slowdown, and therefore the employer’s decision to discipline them amounted to an unfair labor practice under the National Labor Relations Act. Nevertheless, the Board did rule it was lawful to issue attendance infractions to the employees that left work following the protest to retrieve their uniforms. What do employers need to know about this decision?
The federal agency charged with enforcing the nation’s main workplace discrimination laws just announced that it recovered over $535 million from employers on behalf of aggrieved workers and applicants this past fiscal year, a figure that shattered the previous record and set an all-time high. The EEOC’s November 16 financial report also touted successes in clearing old inventory of charges, increasing the percentage of resolutions achieved in favor of charging parties, and mediating thousands of charges to conclusion. The report further indicated that the EEOC filed the second-lowest number of merits lawsuits against employers in over two decades. What are the top five takeaways for employers from this latest report?
Smaller employers are in far greater danger of being the targets of COVID-19 workplace litigation, as are healthcare employers and other businesses requiring an in-person workforce –Fisher Phillips uncovered in its latest upgrades to the firm’s landmark litigation tracking map. Since it debuted earlier this year as the nation’s first comprehensive database of COVID-19-related employment litigation, the Fisher Phillips COVID-19 Employment Litigation Tracker has been the go-to source of information for employers looking to ensure they kept one step ahead of workplace lawsuits stemming from virus-related concerns. Due to advances made by the firm’s Knowledge Management Department, the tracker is an even more invaluable tool as it now includes data on three new, key measurements:
-the size of employers being most frequently sued;
-the number of cases filed per state analyzed as a ratio of state population;
-and the industries most commonly targeted by COVID-19 workplace-related litigation.
Here are the three most surprising trends revealed with a fresh examination of this key data
COVID-19 won this past college football Saturday. The Southeastern Conference (SEC) football schedule for November 14 originally included seven games. Only three were played, none of which included ranked teams No. 1 Alabama, No. 6 Texas A&M, No. 11 Georgia, and No. 21 Auburn. These four SEC games were not canceled, however, because several players or staff had COVID-19, but rather because they were identified through contact tracing to have been exposed to the virus and thus were required to quarantine.
Media outlets announced Saturday that Joe Biden will become the 46th president of the United States. If the legal challenges to the election result fail and he is inaugurated in January, President-Elect Biden can begin taking actions that will immediately impact employers. You should begin preparing now for managing a workforce under the Biden administration, which has pledged to make significant changes to the American workplace, including an expansion of worker's rights.
While the election results may still be debated until officially certified and litigation is resolved, employers should be looking ahead to what a Biden administration will mean for immigration. Prior to this tumultuous year, immigration was one of the biggest hot button topics in the country. But due to the pandemic, social unrest, and the national economic downturn, immigration has grabbed fewer headlines. Regardless, immigration policy will be one of the areas most significantly impacted by the change in administration. This article will cover the top 10 developments that employers can expect in immigration law under President Biden.
- The Crystal Ball Says These 6 Issues Will Demand The Attention Of Healthcare Employers During Biden Administration’s First Year11.16.20
We have already taken a broad look at workplace law developments likely to emerge under Joe Biden’s administration, unless the political landscape shifts suddenly and dramatically. The healthcare industry is of course already unique and challenging, especially as the COVID-19 pandemic continues. After all, reports of increased demands for staff, personal protective equipment (PPE), supplies, and treatment have been in the headlines throughout the crisis. The Centers for Disease Control and Prevention (CDC) has premised much of its fundamental guidance on its efforts to safeguard the capacity of the nation’s healthcare system. This is a primary reason the CDC has repeatedly stated that getting flu shots is more important this year than ever. When a COVID-19 vaccine becomes available, that will obviously be another huge development.
As you prepare for the prospect of a Biden presidency, businesses large and small should consider the potential impact on decision-making and regulatory reform at the National Labor Relations Board (NLRB) – whether or not your workforce is unionized. The new administration can be expected to fulfill promises made to organized labor by rolling back Trump Board measures that have inured to the benefit of unionized and non-union employers alike. As made clear in a recent campaign position paper, President-elect Biden plans to push for adoption of pro-union elements within the Protecting the Right to Organize Act (PRO Act) passed by the House earlier this year as a cornerstone of his Administration’s regulatory labor agenda.
We recently discussed the healthcare industry's unprecedented profusion of advanced technologies amidst the pandemic. Such technologies primarily include the expansion of telehealth across the nation and complex advancements to the nuanced roles of artificial intelligence, analytics, and biometrics to improve the integrity of electronic health records (EHR). Under the Biden Administration, we anticipate a push for stricter federal privacy legislation favoring consumer and patient rights, mirroring the California Consumer Privacy Act (CCPA).
A Biden presidency will surely bring changes to federal labor law under the National Labor Relations Act, the primary law that governs employee collective activity, labor-management relations, collective bargaining, and union elections. The NLRA is enforced by the National Labor Relations Board, a quasi-judicial body comprised of a General Counsel and a five-member board, each of whom are appointed by the president with the consent of the Senate.
In late September, Indiana Governor Holcomb announced that Indiana could move to Stage 5 of his “Back On Track” COVID-19 plan, which allowed businesses to reopen and operate under a few restrictive measures. Since that time, the number of positive COVID-19 cases has risen significantly and steadily. Indiana’s seven-day positivity rate went from 3.9% in late September to 10.6% as of November 13. In light of this, Governor Holcomb issued an Executive Order (EO) today which rescinds Stage 5 of “Back On Track” and imposes a county-based assessment to determine the measures and restrictions needed to counter the spread of COVID-19. What do businesses need to know about this latest development?
The Kentucky Supreme Court issued a decision today determining Governor Andy Beshear was acting within his powers when he issued orders related to COVID-19 without deference to local authorities or other emergency management agencies. This means that Governor Beshear’s industry-specific COVID-19 reopening requirements, also known as “Healthy at Work,” continue to be in effect – and it could mean that more orders could soon be on their way. What do Kentucky employers need to know about today’s decision and what this means for the near future?
In an ongoing effort to control the spread of COVID-19 in Ohio, Governor Mike DeWine stated today that the Ohio Department of Health will soon issue Revised Mask Orders, creating new obligations for employers throughout the state. Noting that new COVID-19 cases are increasing exponentially and that hospitals will soon be strained, Governor DeWine states there is much to do before a vaccine becomes available. What do Ohio employers – especially retail establishments – need to know about these new requirements?
With the increased rates of COVID-19 transmission across the United States and with all but six states presently on Chicago’s Emergency Travel Order quarantine list, the City of Chicago announced sweeping changes to the City’s Emergency Travel Order that are slated to go into effect on Friday, November 13. The new Travel Order now categorizes states into three categories – yellow, orange, and red – based on the status of the outbreaks in the states and how the data compares to the situation in Chicago. What do employers need to know about this latest development?
Colorado employers with five or more employees need to begin preparing to ensure they are in compliance with obligations brought about by a new state law that ensures nearly a million Colorado workers have access to retirement savings plans. Covered employers likely will need to either sponsor their own retirement plan, such as a 401(k), or facilitate employee participation in the recently enacted Colorado Secure Savings Program. While we anticipate that compliance will be phased in starting in 2021, the exact effective date has not yet been announced – but that doesn’t mean you shouldn’t be starting to prepare. What do Colorado employers need to know about this new item on your to-do list?
- Washington Supreme Court Grants Dairy Workers Overtime Pay As Fundamental Right, Raising Concerns For Agricultural Employers11.10.20
In a sweeping 5-4 opinion last week, the Washington Supreme Court held that dairy workers are entitled to overtime pay, concluding that a state statutory exemption violated the Washington State Constitution. For the previous 60 years, Washington’s Minimum Wage Act (RCW 49.46.130(2)(g)) had expressly exempted agricultural workers from receiving weekly overtime premium pay for any work performed above 40 hours in a workweek. But in the November 5 decision in Martinez-Cuevas, et al. v. DeRuyter Brothers Dairy, Inc., the court found that the overtime exemption impermissibly granted agricultural employers an unconstitutional privilege or immunity from paying otherwise mandatory overtime pay to these high-risk workers. What do Washington agricultural employers need to know about this decision?
With Joe Biden now being called the president-elect, we can expect changes to the Mine Safety and Health Administration (MSHA) once he takes office in January 2021. Right now, while there is speculation as to who will be the next Secretary of Labor and who will be the next Assistant Secretary of Labor for MSHA, we can be confident that the expansion of workers’ rights, a key focus for the Biden administration, will include some significant changes in MSHA’s focus. Now is the time for operators to prepare for a shift from MSHA’s enforcement posture over the past four years. Here are the top three significant changes we can expect from MSHA under a Biden administration:
Media outlets announced Saturday that Joe Biden will become the 46th president of the United States. If the legal challenges to the election result fail and he is inaugurated in January, President-Elect Biden can begin taking actions that will immediately impact employers. You should begin preparing now for managing a workforce under the Biden administration, which has pledged to make significant changes to the American workplace, including an expansion of worker's rights.
It appears to be official: unless the election results can be overturned in several states, Joe Biden will soon be our nation’s 46th president. Now the work begins to forecast what the next four years will bring. We’ve spent some time gathering our firm’s collective wisdom on what the next administration will mean for workplace law and the nation’s employers. Here are our predictions in 11 key areas.
The Small Business Administration (SBA) has released loan necessity questionnaires that lenders must issue to over 50,000 borrowers that received $2 million or more in funds from the Paycheck Protection Program (PPP) – and the questions indicate that borrowers may face a higher hurdle than originally anticipated when it comes to forgiveness. Businesses may need to demonstrate that they suffered actual economic harm as a result of the pandemic in order to be eligible for full forgiveness, which is a change from what many initially believed at the time the applications were submitted. Borrowers only have 10 days from the time they receive the questionnaire to complete it and submit supporting documentation, so those who received $2 million or more from the PPP should begin preparing to respond to the questionnaire now.
Californians just passed a ballot measure that will soon expand the nation’s most stringent data privacy law – and it will have an impact on employers across the country. By voting in favor of Proposition 24 – the California Privacy Rights Act of 2020 (CPRA) – employers and businesses will face an expansion of the state’s landmark privacy law, the California Consumer Privacy Act of 2018 (CCPA). Most provisions of the CPRA go into effect on January 1, 2023, although some provisions have a 12-month lookback, as explained below. What do employers and businesses need to know about this dramatic new legal obligation – especially those beyond the California border who may not recognize their obligations?
Colorado voters passed Proposition 118 yesterday, creating Paid Family and Medical Leave obligations for all employers in the state. This initiative mandates that employers provide 12 weeks of leave for Colorado employees, plus an additional four weeks in case of medical complications. What do employers need to know about this groundbreaking new law?
Florida voters just approved a constitutional amendment that will gradually raise the state minimum wage to $15 per hour in 2026. What does this mean for employers? Here are the top five things you need to know about yesterday’s groundbreaking election result.
As Georgia faces a resurgence of COVID-19 cases and the possibility of stricter mitigation measures, employers should know what the latest City of Atlanta mask order requires and how failure to comply will affect their business. What do employers need to know?
Colorado employers should be preparing for a big change that will impact your workplaces, as Colorado’s Equal Pay for Equal Work Act becomes effective on January 1, 2021. With the effective date fast approaching, you must use the remaining months in 2020 to get up to speed on the requirements and adjust your policies, procedures, and job postings.
- “Can We Do That?” Kentucky Employers Should Tread Cautiously When Regulating Employees’ Off-Duty Conduct To Reduce COVID-19 Spread11.2.20
As coronavirus cases continue to surge across the United States and the Commonwealth of Kentucky, wary employers are revising their policies and response plans to mitigate against potential outbreaks in the workplace. Such policies and plans are critical to keep workers safe and to comply with the deluge of federal, state, and local workplace safety guidelines that have been issued since the beginning of the pandemic.
The government agency overseeing affirmative action requirements for federal contractors recently declared that healthcare providers who participate in TRICARE – the federal health care program providing benefits to uniformed service members, retirees and their families – are “independent” from its jurisdiction. The final rule released by the Office of Federal Contract Compliance Programs (OFCCP) establishes a national interest exemption from Executive Order 11246 (E.O. 11246), Section 503 of the Rehabilitation Act of 1973 (Section 503), and the Vietnam Era Veterans’ Readjustment Action of 1974 (VEVRAA) for those health care providers with agreements to furnish medical services and supplies to individuals participating in TRICARE. Thus, long-awaited regulations make clear that hospitals whose only “federal contract” is the acceptance of the military healthcare insurance program are not subject to the requirements or the enforcement of the OFCCP regulations.
"It is coming and it is coming now,” says New Jersey Governor Phil Murphy of the second coronavirus wave hitting the state. To address the public health dangers of the new uptick in cases, which are exacerbated by the return of many employees to the workplace over the last several months, Governor Murphy just issued a new executive order with requirements for employers that take effect at 6:00 a.m. on Thursday, November 5. The order also directs the establishment of complaint procedures and imposes penalties for violations.
To prove that an employer failed to accommodate an employee’s disability in violation of the Americans With Disabilities Act, an employee alleging disability bias does not need to show that the employer fired them or took a similar adverse employment action, the 10th Circuit Court of Appeals opined yesterday. The issue in Exby-Stolley v. Bd. of Cty. Comm’rs – whether an adverse employment action is required to maintain an ADA claim – has split the appeals courts across the country and may require final resolution by the Supreme Court. For now, though, employers in Colorado, Kansas, New Mexico, and other nearby states will need to be extra cautious when it comes to ADA compliance efforts due to this decision.
Michigan just passed four new COVID-19 bills touching on workplace safety, employee protections, and legal immunity for businesses – and employers will need to be sure to stay on top of state rules if they want to avoid liability or safety concerns. The bills, passed on October 21, were the result of a compromise between Governor Whitmer and the Republican-held state legislature. In general, the bills incentivize Michigan employers to maintain similar workplace protections as laid out in Governor Whitmer’s now-invalid executive orders and MIOSHA’s recently enacted emergency rules. This article addresses what Michigan employers should do in light of each of the new laws.
As the U.S. faces what looks like a resurgence of COVID-19 cases and the possibility of more state and local shelter-in-place orders, employers who have been operating during the pandemic should know what the federal government requires and whether they will be able to continue to operate. What do employers need to know about federal “critical infrastructure” guidance, and what do you need to know as you continue to operate your business?
New COVID-19 contact tracing procedures released by the federal government yesterday have expanded the category of individuals who are deemed to be in close contact with each other – and will complicate the already difficult task faced by employers when trying to maintain a safe workplace environment. The updated guidance now indicates that workers should be considered to be at risk of contracting the novel coronavirus if they were within six feet of an infected individual for a total of 15 minutes or more over a 24-hour period during the 48 hours before the infected individual exhibited symptoms or, if asymptomatic, 48 hours before the COVID-19 test was administered, even if the interactions that lead to a cumulative total of 15 minutes were brief and spread out over that time. What do employers need to know about this new standard, and more importantly what do you need to change about your workplace practices?
The Centers for Disease Control and Prevention (CDC) recently released updated guidance on COVID-19 testing protocols for K-12 schools, making clear that the Equal Employment Opportunity Commission (EEOC) permits schools to implement required testing policies for their employees. However, the October 13 additions to the CDC’s published guidance suggests limits on how testing policies should be applied to students. Although CDC guidance is developed with public and charter schools in mind, private schools may also find these developments helpful.
In the past week, two Michigan administrative agency directors have issued emergency regulations to fill in for Governor Whitmer’s now-invalidated COVID-19 executive orders. The emergency regulations largely mirror Governor Whitmer’s now-invalidated mask mandate, workplace protections, employee protections, and “Safe Start” executive orders. This article addresses what the two emergency regulations cover, as well as how employers should respond.
- Does Trump’s COVID-19 Case Need To Be Reported To OSHA? What Employers Can Learn From President’s Illness10.10.20
President Donald Trump’s recent hospitalization at the Walter Reed Medical Center has captured the American public’s attention, especially given the potential implications with the election less than a month away. But for human resources and safety professionals, the news of the president’s positive COVID-19 diagnosis and a subsequent hospitalization has raised questions unrelated to the election: namely, whether his illness is considered “work-related,” and if so, how would it be treated under the Occupational Safety and Health Administration’s (OSHA) recordability and reporting laws. What can this most high-profile case of COVID-19 teach employers about mandatory safety reporting obligations?
- Keep Calm And Carry On: What Michigan Employers Should Do After State Supreme Court Invalidated Governor’s COVID-19 Orders10.6.20
The Michigan Supreme Court issued a bombshell opinion last Friday invalidating all of Governor Whitmer’s executive orders since April 30, 2020, including those covering workplace safety standards, unemployment benefits, and the mask mandate. Obviously, this opinion has caused significant confusion among Michigan businesses as to what they can and should do now. This is especially true since it is currently unclear whether the opinion became effective immediately (i.e., the executive orders officially invalidated) or whether it will take effect as much as 28 days later (October 30, 2020). This alert addresses what is being done by the Michigan government to fill the void caused by the opinion and what employers should do in the meantime.
The Sacramento County Health Officer just issued an Order superseding the County’s previous Stay-At-Home Order, reflecting the County’s shift from the Widespread Tier (Purple) to the Substantial Tier (Red) on the state’s Blueprint for a Safer Economy tiered reopening plan. The September 29 Order also permits certain businesses to begin indoor operations with limited capacity.
The U.S. Occupational Safety and Health Administration (OSHA) just published its newest series of answers to its COVID-19 Frequently Asked Questions (FAQs) addressing when an employer must report to OSHA an employee’s hospitalization as a result of contracting COVID-19 at work. Why is this September 30 update important? Mainly because employers have been confused by OSHA’s reporting requirements for COVID-19 cases since the pandemic began. To be blunt, OSHA’s explanations have been extremely confusing. Indeed, OSHA published FAQs on its website on July 15 attempting to interpret the hospitalization reporting requirement of 29 CFR 1904.39(b)(6). Apparently, the guidance created so much confusion for employers that OSHA removed the FAQs from its website without explanation. But thankfully, the struggle to understand the hospitalization reporting requirements for work-related COVID-19 cases is over … for now. Here’s what employers need to know about OSHA’s newest interpretation of an employer’s reporting obligations.
Governor Newsom just signed into law a requirement that private employers with 100 or more employees must annually report to the state detailed pay data categorized by gender, race, and ethnicity. SB 973, signed into effect late on September 30, will require covered businesses to report this data to the Department of Fair Employment and Housing (DFEH) on March 31, 2021 and every March 31 thereafter. That date will be here before you know it, so California employers should begin to take compliance steps at once. What do you need to know about this significant new obligation?
In a major win for transgender rights, the 4th Circuit Court of Appeals recently ruled in favor a transgender teenager who wanted to use the boys’ bathroom at his former school, finding that the school district violated his constitutional rights when it prescribed which bathroom he should use and failed to amend his transcripts to reflect the gender with which he identifies. On August 28, the court sided with a growing number of courts when it concluded the Equal Protection Clause of the Constitution and Title IX dictated that schools must allow individuals to use the bathrooms that correspond with the gender with which they identify. Significantly, this case is the first to rule on bathroom access for transgender persons under Title IX after the U.S. Supreme Court’s recent watershed decision that bars transgender discrimination under Title VII. What do schools need to know about this development?
When President Trump issued an executive order on September 22 on “Combating Race and Sex Stereotyping,” the federal contractor community was concerned about what new requirements might be added to their already full plates. Fortunately, most of the executive order addresses federal government agency requirements. However, there are two key points of which the federal contractor community must be aware.
California employers have been faced with an endless uptick of claims filed under the Private Attorneys General Act of 2004 – also known as PAGA – alleging violations of any of the hundreds of enumerated provisions of the state Labor Code. However, we have seen relatively few PAGA claims alleging violations of the Cal/OSHA health and safety law commencing in California Labor Code §§ 6300 et seq. That may all soon change. As the world – and California – continues to deal with the COVID-19 pandemic, we are likely on the verge of a new wave of PAGA litigation for alleged Cal/OSHA violations. This article provides a 10-step plan you can take to limit exposure for such claims.
Just days before New York’s statewide paid sick leave law (NYPSL) takes effect on September 30, the New York City council passed a suite of amendments to NYC’s existing Earned Safe and Sick Leave Law (ESSL), in part aligning safe and sick leave obligations with the impending NYPSL and in part creating new obligations under the ESSL. The amendments to the ESSL were signed into law by Mayor DeBlasio on September 28 and take effect on September 30.
This year has brought unprecedented challenges for dealerships across the country. To top it off, the country will close 2020 with a highly contested presidential election. As a result, this presidential election cycle will create unique concerns for dealerships dealing with employees who wish to discuss politics at work, especially given our country’s politically and socially charged environment.
Encouraged by the drop in the COVID-19 positivity rate across the state and a decline in the overall number of new cases being reported (per 100,000 people), Governor Holcomb just issued an executive order announcing that Indiana can move to the final stage of reopening as of September 26. Stage 5 of the “Back On Track” COVID-19 plan allows all businesses to reopen and operate while continuing to require a few strategic and critical measures to protect Hoosiers. Here are a few things Indiana employers need to know about this latest development.
We now move to one of the more complex areas of mine safety and health law – discrimination complaints. Section 105(c) of the Federal Mine Safety and Health Act provides protections against retaliation for engaging in conduct protected under the Act. This article will explain what a discrimination case is and what steps operators can take to successfully navigate this area of law.
President Trump officially selected Judge Amy Coney Barrett to fill the empty seat on the Supreme Court bench, filling the vacancy caused by Justice Ruth Bader Ginsburg’s death. Assuming she is confirmed by the Senate, Judge Barrett’s appointment will have a long-lasting impact on the future of the SCOTUS, cementing a six-Justice majority of conservative jurists. There is a great deal of emotion and controversy surrounding this selection, but employers may still be curious about how Barrett would treat workplace law cases that come before her if she is elevated to the Supreme Court. Similar to the way we examined the nominations of Justice Sonia Sotomayor in 2009, Justice Elena Kagan in 2010, Justice Neil Gorsuch in 2017, and Justice Brett Kavanaugh in 2018, we now turn our attention to Judge Barrett.
Florida Governor Ron DeSantis issued an executive order pre-empting any local COVID-19 ordinance that prevents a business from operating or an individual from working, or that allows restaurants to operate at a minimum of 50% capacity. Fisher Phillips has reviewed Executive Order 20-244, which is summarized below.
As the Nation’s political season continues to intensify, the NLRB has issued a timely advice memo highlighting the test for determining when political activity is protected under federal labor law. In a recently issued advice memo released on September 14, the Division of Advice concluded that political activity with no “nexus to a specifically identified employment concern” was not protected by Section 7 of the National Labor Relations Act. What do employers need to know about this development, especially in light of today’s tumultuous political climate?
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 – received a jolt of good news this morning when the Department of Labor unveiled a proposed rule that will make it easier for workers to be classified as contractors. At the same time, the simplified rule will raise the bar and make it harder for disgruntled workers to claim they have been misclassified and should be treated as employees, reducing the chances of a costly judicial finding or expensive settlement in a minimum wage or overtime lawsuit.
- Keep It Neutral: Proposed Guidance Calls For Stricter Test When Evaluating Employer Support Of Union Activity9.22.20
The NLRB’s General Counsel recently released a guidance memorandum advising the Board to apply a stricter standard when evaluating if an employer’s support for union organizing activities violates the National Labor Relations Act. This change would implement a single “more than ministerial aid” standard for the Board’s evaluation of employer support for both pre-certification union activities and employee de-certification activities. The September 4 guidance provides examples of employer conduct that would be unlawful under the stricter standard, and takes specific aim at pre-certification neutrality agreements, identifying provisions that would constitute impermissible support. If adopted by the full Board, the new standard would clarify the amount of support employers can give to a union before it is the exclusive bargaining representative – and would especially create confusion for cannabis employers across the country.
Maryland employers will soon be prohibited from requesting or relying on an employment applicant’s wage history to make decisions about employment or initial pay rates, requiring many employers to take immediate changes to their hiring practices. Beginning on October 1, 2020, Maryland will join numerous other states and local jurisdictions that have banned or restricted reliance on applicants’ salary histories to set wage rates for open positions. While Maryland employers can rely on wage histories voluntarily provided by applicants with some important restrictions, you should tread carefully in doing so. What do you need to know about this important change to state law?
- California Dramatically Expands Coverage Under State Leave Law, Creating New Obligations For Employers9.17.20
Governor Newsom just signed legislation that will greatly expand the California Family Rights Act in a manner that will impact both small and large California employers. The CFRA requires covered employers to provide up to 12 weeks of unpaid leave during each 12-month period for purposes of family and medical leave.
Governor Newsom just signed into law a bill that will require public and private California employers to provide detailed notices to employees when there is a COVID-19 exposure in the workplace, and to provide notice to local public health departments for COVID-19 “outbreaks.” AB 685 (Reyes), which will go into effect on January 1, 2021, uses vague language and three different definitions of who must receive notice, so employers will need to pay close attention in order to be in compliance come January.
- California Enacts Workers’ Compensation Presumption That Applies To Most Employers With COVID-19 “Outbreaks”9.17.20
California Governor Gavin Newsom just signed legislation that establishes a workers’ compensation presumption that will apply to most employers in the state that have a COVID-19 “outbreak” through 2022 – meaning it is much more likely that worker infections will be covered under workers’ comp coverage. This legislation, Senate Bill 1159, will shift the burden of proof to presume that covered workers who contracted COVID-19 did so at work, unless the employer can prove otherwise. The new legislation also enacts a rebuttable presumption that applies to first responders and certain health care workers. Finally, the law requires employers to provide notice to their workers’ compensation carrier of employees who test positive for COVID-19. SB 1159 was enacted as an “urgency” measure and therefore went into effect immediately. What do California employers need to know about this new law?
The Illinois Biometric Information Privacy Act (BIPA) has proven to be a significant burden on Illinois employers, and a recent Illinois federal court decision may have made the legal landscape even more difficult. In Cothron v. White Castle System, Inc., the court addressed when a “violation” takes place under BIPA — a question which had not been squarely addressed by the statute or other case law. How does the court’s interpretation affect Illinois employers?
A recent report from the federal government revealing that workplace safety whistleblower claims have exponentially increased during the pandemic should give all employers pause – and should motivate you to take immediate steps to ensure you don’t find yourself on the receiving end of such a claim. What do you need to know about this dramatic rise and what can you do about it?
Employers across the country continue to be challenged with difficult decisions about their workforce in the wake of COVID-19, including decisions about employee layoffs and returning employees to the worksite. As businesses try to return to a new normal, employers must avoid making such decisions based on who they perceive as “high risk” for contracting COVID-19, such as older employees. Notwithstanding any good intentions you might have to protect “high risk” older employees, employees would have a strong claim for age discrimination where a decision to not bring the employee back is based on their age. One recently filed lawsuit in Ohio highlights the risks employers face should they make employment decisions based on an employee’s perceived risk due to their age. What can your business learn from these allegations?
- Thousands Of Government Contractors Slated To Be Evaluated As Feds Release FY2020 Audit Scheduling List9.14.20
In keeping with the promise to make the agency more transparent, the Office of Federal Contract Compliance Programs just released a list of over 2,000 federal contractors that will be soon subject to compliance reviews. By being included on the 2020 Corporate Scheduling Announcement Letter (CSAL) list, 2,250 supply and service establishments and 200 construction contractors now have a minimum 45-day courtesy notification before the OFCCP will begin sending OMB-approved scheduling letters. What do employers need to know about this development?
- Labor Department Revises COVID-19 Leave Regulations, Broadening Coverage For Healthcare Workers And Clarifying Other Employer Obligations9.14.20
Employers of healthcare providers will soon be required to provide paid sick leave and partially paid family leave to a broader category of employees, and all employers subject to the law now have clarification on a number of other obligations, thanks to a revised set of regulations released by the Labor Department late Friday afternoon. After a federal court judge recently knocked down the agency’s first attempt to provide employers with practical direction in complying with the Families First Coronavirus Act (FFCRA), the Labor Department issued a second set of rules on September 11 that in some instances revise and in other instances clarify employer compliance duties. Here are the key changes and clarifications, which are slated to go into effect on September 16, that employers need to know about.
- Employees Laid Off As A Result Of COVID-19 Ask Courts To Find Their Non-Compete Agreements Unenforceable9.11.20
Since the onset of COVID-19 and the related business shut-downs, employers across the country have been forced to make the difficult decision to lay off or terminate many of their employees. Of the tens of millions who have been impacted to date, several hundred individuals have already filed suit against their former employers, bringing claims ranging from racial and religious discrimination to alleged violations of the Family First Coronavirus Response Act. Fisher Phillips has been closely tracking these and other COVID-19-related lawsuits in our COVID-19 Employment Litigation Tracker. Recently, a new trend in COVID-19-related litigation has emerged: employees who had previously signed non-compete and other restrictive covenant agreements with their former employers are now asking courts to declare those agreements unenforceable.
Many companies were left struggling to quickly understand and comply with the Families First Coronavirus Response Act when it went into effect earlier this year. As more and more employees continue to request leave under the Act, some are also starting to bring lawsuits alleging that their requests for leave were wrongly denied, or that they were retaliated against for asserting their rights under the Act. A recent trend involving litigation from caregivers – employees needing to care for an individual with COVID-19 – should attract the notice of employers. What do employers need to know in order to avoid being on the receiving end of such a claim?
- The COVID-Confusion Over Face Masks, N95s And Respirators: Small Detail Or Big Difference For Employers?9.9.20
COVID-19 pandemic guidance from agencies like the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) has been constantly changing and confusing for employers. Directives concerning the use of face coverings and masks have proven to be one of the most commonly misunderstood areas.
In a move sure to frustrate employers and usher in a wave of confusion, a New York federal court judge just struck down critical portions of the Labor Department’s new joint employer rule that went into effect a few months ago. Concluding that the agency’s rule has “major flaws,” U.S. District Judge Gregory Woods decided yesterday that the rule did not comport with the Fair Labor Standards Act (FLSA). The September 8 ruling tosses out the new standard that had applied to “vertical” employment relationships (when staffing company or subcontractor workers are contracted to work with another entity, for example), while keeping intact the rarer “horizontal” relationships between related entities that employ the same worker – which was not significantly changed by the final rule. Affected employers may have to chart a more difficult course in order to ensure they are not deemed liable in joint employer situations.
- Employees Win Latest California Bag Check Case – But Court Leaves One Final Cliffhanger On The Compensability Of Closing Tasks9.3.20
The long-fought bag-check battle against Apple is coming to an end, and the employee class just won a major victory in California when a federal court of appeals ruled that the company must pay its workers for the time spent during mandatory anti-theft searches at the end of their shifts. Following the California Supreme Court’s decision in February that concluded, among other things, that an element of employee choice whether to engage in an activity does not by itself make the time non-compensable, the 9th Circuit Court of Appeals reversed the lower court’s 2014 rulings in favor of Apple and directed the trial court to enter judgment in favor of the employee class. After the September 2 decision, the only question that remains open for most California employers is whether there might exist some type of de minimis doctrine under California law that would permit employers to avoid paying workers for short and occasional tasks, albeit one that is more limited than the federal canon.
There is no doubt the summer of 2020 has been memorable, but likely not for overseas jaunts or exotic vacations. Although the CDC recently relaxed its COVID-19 guidance regarding quarantine after travel, it still recognizes: “Travel increases your chance of getting and spreading COVID-19. Staying home is the best way to protect yourself and others from COVID-19.” While you may recognize the importance of following this advice, your employees may see things differently. In fact, as we head into the Labor Day holiday, some employees may be planning that overdue getaway. This raises questions regarding whether you can – or should – restrict personal travel among your workforce, and whether you can take other steps to ensure a safe workplace during the pandemic. This alert provides the most frequently asked questions employers have regarding this thorny issue and offers practical guidance to navigate the best policies and practices.
The U.S. Department of Labor, Wage and Hour Division (DOL) issued an Opinion Letter on August 31 concluding that, under the Fair Labor Standards Act (FLSA) and its implementing regulations, employers are permitted to reimburse employees who use their personal vehicle for work at a “reasonable approximation of actual expenses incurred.” This means that employers do not need to reimburse employees at the IRS mileage rate to meet their obligations under federal wage and hour laws. Given the surge of deliveries of all types of goods in 2020 and the abundance of litigation alleging under-reimbursement of driving expenses, this significant Opinion Letter provides guidance for companies reimbursing their employees for the use of personal vehicles.
The California Legislature is expected to pass legislation today that would provide up to 80 hours of supplemental paid sick leave to millions of California workers for reasons related to COVID-19. Mirror Senate and Assembly bills, SB 822 and AB 1867, achieve this goal, in part, by codifying the supplemental paid sick leave previously provided to “food sector” employees earlier this year via Executive Order N-51-20. In addition, the bills would expand this supplemental paid sick leave to all employees working for certain private companies and all health care providers and emergency response workers not already provided sick leave through the Families First Coronavirus Response Act (FFCRA). It is unclear at this point which bill the Legislature will pass, however, the effect of passing either SB 822 or AB 1867 will be the same for California employers.
Governor Gretchen Whitmer just issued an executive order that limits the availability of job-protected leave moving forward only to those employees who pose a “particular risk of infecting others with COVID-19.” She did this by narrowing the definition of which COVID-19 symptoms – whether standing alone or in combination with others – will trigger COVID-19 leave protections under Michigan law. At the same time, her August 27 executive order is not retroactive in nature and is still more protective than CDC guidelines with regard to when an employee may return to work. What do Michigan employers need to know about Executive Order 2020-172 and what they can and cannot do to return employees to work?
Georgia’s recent passage of a new lactation break law earlier this month has taken many employers by surprise – or may even be news to you. Over the past weeks, news headlines have been saturated with coverage on an array of pressing national matters. In the midst of an ongoing COVID-19 pandemic, civil unrest, a hotly contested presidential election year, and an already catastrophic hurricane season, many employers have shifted focus away from state and local initiatives for more pressing national concerns. As a result, you could be forgiven for not knowing about this new employer obligation. But given that the new lactation break law took effect immediately once it was passed on August 5, 2020, you need to turn your attention to understanding your new responsibilities and working on compliance measures.