Legal Alerts Archive
Nearly half of all COVID-19-related workplace lawsuits that have been initiated between employees and employers were filed in the past month, according to data collected by the Fisher Phillips COVID-19 Employment Litigation Tracker. Of the 283 COVID-19-related lawsuits filed in federal and state courts through June 30, 122 of them – or 43% – were filed in the month of June, demonstrating an exponential increase in the number of claims involving disputes between workers and employers. Digging deeper in this data, we have identified a number of key takeaways for employers, including potential vulnerabilities that smart employers should proactively address before they turn into costly lawsuits.
In what can only be described as a complete flipping of the script in employment-related litigation, the owner and manager of a suburban Pittsburgh restaurant adversely impacted by the COVID-19 pandemic have sued a former restaurant server for defamation in Pennsylvania state court. They allege that when they changed their pay plan to deal with the impact of lost business due to a government shutdown order, the server took to social media making disparaging comments about their business that were false, defamatory, and damaging to the restaurant’s and the individuals’ reputations. While there has been a steady stream of lawsuits being filed across the country by employees alleging COVID-19-related workplace wrongdoings, suits by employers against employees regarding impacts of the pandemic remain an extreme rarity. What can employers learn from this example?
Pennsylvania’s Department of Health just issued an order mandating the use of face coverings in the Commonwealth. The July 1 order — which was likley prompted by a sharp rise in new reported COVID-19 cases following Pennsylvania’s efforts to re-open the region — is a departure from previous orders regarding face coverings in that it requires the use of face coverings outdoors and in public places rather than just businesses. What do employers need to know about this development?
The restaurant industry has been severely impacted by state shutdown orders. As states start reopening businesses, it is vital to know the applicable rules that apply to your location or locations. Whether you operate a single location or are a multi-unit operator, compliance will include assessing business operations, bringing employees back to work, and ensuring a safe operation for customers and employees. In an effort to assist the restaurant industry, our Hospitality Practice Group has prepared a comprehensive state-by-state chart that addresses your most commonly asked questions.
On the heels of a recent spike in new COVID-19 cases, at least six South Carolina cities, including the state’s two largest in Charleston and Columbia, have passed emergency face-covering ordinances. Both were enacted shortly after Greenville implemented the Palmetto State’s first face mask ordinance on June 23. All told, roughly 1 in 10 South Carolinians are now under a face mask order with more expected in the coming days and weeks. While cities in other parts of the United States have passed similar face mask orders backed by criminal penalties, violators in most South Carolina cities would receive civil fines up to $25. Businesses can expect more substantial penalties for non-compliance. Columbia’s ordinance took effect on Friday, June 26 at 6 a.m. and Charleston’s ordinance is soon to follow, beginning at midnight on Wednesday, July 1. With no sign of the current pandemic slowing down, Columbia’s ordinance is set to remain in effect for 60 days, unless otherwise lifted. What do employers in the state capital need to know?
On June 29, 2020, California introduced a bill that would require employers within 24 hours to notify their employees, the Division of Occupational Safety and Health, and the State Department of Public Health, of any employee exposure to COVID-19 “that the employer knew of or should have reasonably have known of.” An employer’s failure to adhere to the proposed notification requirements would be a misdemeanor carrying a $10,000 fine.
As expected, Governor Brian Kemp issued a detailed executive order to begin to re-open businesses throughout the state in the hopes that the worst of the COVID-19 crisis has passed.
Nevada employers need to prepare for a substantial change to minimum wage laws, as the pay rate will eventually reach $12.00 per hour over the course of the next four years – beginning with a hike taking effect on July 1, 2020. As a result of the passage of Assembly Bill 456 (now codified as Nevada Revised Statutes § 608.250) in 2019, employers should be prepared for the gradual increases beginning this week.
As many California employers are still reeling from the impacts of the pandemic, employers need to brace themselves and prepare for the minimum wage hikes going into effect in several cities across the state as of July 1, 2020. On Wednesday of this week, the following increased minimum wages will go into effect:
- Total (Security) Recall: Labor Board Returns To Historical Precedent And Allows Discipline Of Newly Organized Union Members6.26.20
The National Labor Relations Board restored its longstanding precedent involving an employer’s duty to bargain over discipline in a newly certified bargaining unit, ruling that employers have no obligation to negotiate with newly formed unions over disciplining workers before the initial collective bargaining agreement is finalized. The June 23 decision in 800 River Road Operating Company, LLC d/b/a CareOne at New Milford marked a return to 80 years of established NLRB precedent.
Nevada Governor Steven Sisolak announced that, effective 11:59 p.m. on Thursday, June 25, 2020, face coverings will now be required in public. In announcing this new requirement, Governor Sisolak lamented that Nevada is experiencing an increasing trend in its cumulative test positivity rate and hospitalizations since May 31. To combat these increases, the governor’s COVID-19 Medical Advisory Team advised that “a mouth-and-nose lockdown is far more sustainable than a full-body lockdown.” What do employers need to know in order to ensure compliance with Governor Sisolak’s Declaration of Emergency Directive 024?
The San Francisco Board of Supervisors just passed the Back-to-Work Emergency Ordinance aimed at guaranteeing reemployment to certain workers who were laid off by covered employers due to the COVID-19 pandemic. This Ordinance creates a temporary right to reemployment when certain larger employers seek to hire workers for the same or substantially similar positions previously held by other workers who were recently laid off. This Ordinance also prohibits covered employers from discriminating against those laid-off workers with family care hardships and allows them to request reasonable accommodations for the hardships. The Ordinance, approved on June 23, will become effective immediately upon the Mayor’s signature and will expire upon the 61st day following enactment unless extended. What do San Francisco employers need to know about this new obligation?
California’s landmark privacy law could soon be amended with updated compliance burdens for employers – and it will be up to voters statewide to determine whether these changes take effect. An amendment to the California Consumer Privacy Act (CCPA), titled as the California Privacy Rights Act (CPRA), has just qualified to appear on the November 3, 2020 statewide ballot. If voters approve the measure, the CPRA would require covered businesses to implement policies and procedures to provide consumers—including employees—with certain privacy rights. What do California employers need to know about this development to prepare for a possible revision to their compliance obligations?
The Small Business Administration (SBA) just released important new rules regarding forgiveness of Paycheck Protection Program (PPP) loans. The June 22 Revisions to Loan Forgiveness Interim Final Rule and SBA Loan Review Procedures Interim Final Rule offer additional clarification on the rules governing forgiveness of PPP loans, while providing borrowers with additional flexibility. What do employers need to know about these developments?
As Massachusetts employers navigate reopening their workplaces while complying with federal, state, and local guidelines, it is helpful to gain some insight into government enforcement priorities. The Fair Labor Division of the Massachusetts Attorney General’s Office has not only prepared a Frequently Asked Questions document, but recently participated in a webinar for employers to offer informal suggestions on wage and hour compliance during these unprecedented times. We attended the webinar and summarized the highlights below so you wouldn’t miss out.
President Trump just issued a Proclamation to further restrict legal immigration, preventing employers from bringing new H-1B, H-2B, L-1A, L-1B, and J-1 workers from abroad into the United States. Effective June 24, 2020 (12:01am EDT), this Proclamation will bar new temporary visas for foreign workers and their dependents through 2020 and potentially longer. The Proclamation also immediately extends the prior suspension of immigrant visas for those applying from abroad for the remainder of 2020. What do employers need to know about this development?
As medical offices, clinics, and surgical centers re-open, employers will not only face questions about clinical protocols and recommended steps for disinfecting and safeguarding the workplace from COVID-19, but must also respond to questions from employees about your expectations and their related fears and concerns. Members of our Healthcare Practice Group have assembled the most common questions medical offices are asking and provided best practices and key recommendations below. Keep in mind that the following guidance is general and may not apply to your factual situation.
The COVID-19 pandemic has created significant uncertainty for businesses across the country – but there is some good news for Louisiana employers and businesses. As offices, worksites, and other places of businesses reopen, many had been concerned about possible litigation brought by an employee or patron who claims to have contracted COVID-19 while on the premises. Fortunately, Louisiana has enacted legislation to limit business liability related to these types of COVID-19 claims. What do employers and businesses need to know?
When California declared that face coverings will be now required in public, employers across the state were handed new obligations when it comes to their workers and anyone else entering the workplace. In announcing this new requirement, Governor Gavin Newsom encourages all Californians to do their part to slow the spread of COVID-19 by wearing a mask – and employers have an important role to play in this arena. What do employers need to know in order to ensure compliance?
Welcome to “Mining MSHA,” a regular series of posts focusing on mine safety fundamentals – but designed for both new and experienced mine safety professionals. This series will help safety professionals develop their MSHA legal knowledge, as we explore over 40 years of case law developed by the Federal Mine Safety and Health Review Commission and its bench of Administrative Law Judges. You will want to share this series with your safety personnel at all levels, because understanding what MSHA can and cannot legally do is the first step in managing your relationship with this enforcement agency. Join your Fisher Phillips Mine Safety team as we mine legal knowledge from the body of Federal Mine Safety and Health law.
On the heels of Shelby County’s decision to remain in Phase 2 of its Back to Business Plan, the Memphis City Council just approved a new Ordinance requiring individuals within the City of Memphis to wear a face covering or mask while present in businesses and public indoor spaces. Described as a “remedial” measure to “mitigate the spread of infectious disease,” the Ordinance gives the mayor the authority to penalize violators of any public health directive, including the failure to use face coverings. The Ordinance was officially approved by the City Council on June 18 and was signed by Mayor Strickland on June 25. The Ordinance will remain in effect until there is no longer a declared public health emergency or the Ordinance is lifted by the mayor. What do employers need to know about this new ordinance?
- Is COVID-19 A Disability Under Discrimination Law? The Next Wave of Workplace Lawsuits May Answer Question6.19.20
With an increasing number of employees being diagnosed with COVID-19 and requiring a leave of absence to recover from the virus, the question arises whether having COVID-19 renders an employee “disabled” as defined under the Americans with Disabilities Act (ADA) or other state and local anti-discrimination laws. A recent lawsuit filed in New Jersey requests that the court answer this question in the affirmative and render an employee who was diagnosed with COVID-19 as disabled under the New Jersey Law Against Discrimination (LAD). In Tihara Worthy v. Wellington Estates LLC, a former employee alleges that she was wrongfully terminated and not permitted to return to work because of COVID-19, which she argues is a “disability.” As many non-essential businesses are beginning to reopen their doors, this lawsuit raises questions that many employers will likely be grappling with in the weeks and months to come.
The EEOC further revised its guidance to employers to clarify that it does not deem workplace antibody testing lawful under the Americans with Disabilities Act (ADA). COVID-19 antibody tests have recently been touted as a way to help prevent infection spread in the workplace, as they could be incredibly useful to employers – if deemed effective and reliable. Unfortunately, we do not yet know if or the extent to which the presence of the relevant antibody means that an individual is completely or partially immune to future COVID-19 infection. While antibody tests have a vital role in analyzing the spread of and our response to COVID-19, so far this testing has not been determined to be a useful mass screening tool for employers – which prompted the EEOC to clarify its stance on the matter.
What Did The EEOC Say?
The Occupational Safety and Health Administration (OSHA) released a Guidance on Returning to Work document that describes strategies and recommends steps employers should take during all phases of reopening. Most of OSHA’s recommendations involve steps employers have been implementing based on state and local reopening guidelines, including basic hygiene, social distancing, identification and isolation of sick employees, workplace controls and flexibilities, and training. However, the June 18 guidance addresses a few areas that have raised concerns due to some reopening guidance on the state and local levels.
The City of Chicago has gone a step further than most other jurisdictions to protect employees who have encountered some of the devastating aspects of COVID-19. Adopting portions of the Chicago Minimum Wage and Paid Sick Leave Ordinance, the City just enacted new requirements prohibiting retaliation against a significant number of employees. The new ordinance – signed into law on May 20, 2020 and implementing new provisions effective immediately – requires employers to be cognizant of new developments related to COVID-19 and vigilant about their employment practices. The ramifications employers may face when found in violation of the new provision are significant and should give you pause before taking any adverse employment action. What do Illinois employers need to know about this new development?
By a 5-4 vote, the U.S. Supreme Court ruled today the Trump administration did not provide adequate and appropriate justification to terminate the Deferred Action for Childhood Arrivals (DACA) program, preserving the ability of approximately 700,000 individuals – sometimes known as “Dreamers” – to remain in the country and in American workforces. Considering today’s decision, many DACA recipients will be able to apply to continue to extend their employment authorization or pursue additional educational opportunities.
As an increasing number of employees return to work, employers should be aware that a number of COVID-19-related lawsuits raising FMLA and ADA concerns have already begun to emerge. What do employers need to know in order to avoid being on the receiving end of such a claim?
San Francisco and San Jose have joined the growing list of local California jurisdictions to adopt COVID-19-specific paid sick leave measures impacting employer and employees who operate in the local areas. In general, these ordinances do not amend existing law. Rather, they supplement paid leave already offered under federal law and other local ordinances.
Is the EEOC finally ready to replace its invalidated rule allowing employers to incentivize participation in employer-sponsored wellness programs? Just maybe. Late last week, the EEOC voted 2-1 to send a notice of proposed rulemaking to the Office of Management and Budget (OMB). Despite the June 11 vote, the EEOC has not yet set a timeframe for sending the proposed new rule to the White House’s budget office. Once the OMB receives the proposed new rule from the EEOC – and assuming that it is approved – the proposed new rule will then be shared publicly for comment. What do employers need to know about this latest development?
Noting that outbreaks at food processing facilities and other high-density critical infrastructure businesses have raised unique questions that require additional guidance, the Centers for Disease Control and Prevention (CDC) just released a new testing strategy for those workplaces to augment existing testing guidance and measures aimed at reducing further transmission of COVID-19.
- “No Contest”: Supreme Court Finds Title VII Protects LGBTQ Individuals From Workplace Discrimination6.15.20
In a 6-to-3 vote today, the U.S. Supreme Court ruled that workplace discrimination because of an individual’s sexual orientation or gender identity — including being transgender — is unlawful discrimination “because of sex” under Title VII of the Civil Rights Act of 1964. The basis for the Court’s ruling in Bostock v. Clayton County was summarized by Justice Gorsuch in his majority opinion: “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” What do employers need to know about this historic decision?
An engineer terminated for job abandonment just sued his former employer for not allowing him to work from home due to the COVID-19 pandemic. According to his complaint, Yiyu Lin, a 55-year-old Chinese-American engineer with high blood pressure who lives with his elderly mother, was terminated after repeated requests to work from home were denied. Instead, he claims his termination was unlawful disability, age, and national origin discrimination – and that his employer violated the Massachusetts Earned Sick Leave law when it terminated him for his use of sick leave. The case, filed in a Massachusetts federal court, is one of many lawsuits filed across the country as businesses begin to emerge from the worldwide pandemic. What can all employers – especially those in essential industries that cannot utilize telework – learn from this claim?
In its latest round of updates to a series of COVID-19 Frequently Asked Questions, the Equal Employment Opportunity Commission just warned employers they cannot prevent older workers from returning to work even if they want to protect such workers from the effects of COVID-19. The updates also provide additional guidance regarding ADA reasonable accommodations, preventing workplace harassment in a remote work environment, and addressing other workplace discrimination concerns. What do employers need to know about this latest agency guidance?
After several months of closures or offering virtual fitness classes, Governor Gavin Newsom announced that California fitness centers can soon begin reopening – so long as they comply with specific modifications. The California Division of Occupational Safety and Health (Cal/OSHA) and the California Department of Public Health (CDPH) recently issued guidance to help fitness facilities safely reopen. The new guidance recommends that fitness facilities be permitted to reopen no sooner than June 12.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has just published a series of frequently asked questions and answers regarding the use of cloth face coverings, surgical masks, and respirators in the workplace. While much of the document summarizes concepts and principles that most employers should know by now, there are at least three important clarifying points that deserve your attention. What do employers need to know about this latest guidance?
In a major reversal of a 2014 Obama-era precedent, the National Labor Relations Board just ruled that it will no longer assert jurisdiction over bona fide religiously affiliated schools. This decision is of enormous significance for religiously affiliated colleges and universities which have faced union organizing in recent years – among their contingent faculty in particular. Such institutions will no longer have to be concerned about union organizing if they meet the new bright-line test established by the Board. What do you need to know about the June 10 decision in Bethany College (369 NLRB No. 98 (2020))?
The California Consumer Privacy Act (CCPA) had only been in effect for a short time before the COVID-19 pandemic struck, raising a host of new privacy challenges for employers in the midst of trying to comply with an entirely new set of challenges and laws. As California businesses begin to reopen, these concerns have only increased – and will only amplify once the enforcement date of the CCPA kicks in on July 1, 2020. What do employers need to know about complying with California’s new privacy law during the COVID-19 era?
It is no surprise that COVID-19 whistleblower lawsuits are being filed against healthcare employers – and a recent claim filed by a former assistant director at a nursing home facility reveals ways in which healthcare employers may be in a vulnerable position if they don’t proactively address concerns raised by their employees. Indeed, because the COVID-19 pandemic has increased the focus on health and safety issues, it is now more likely that a terminated employee had some role in actively voicing their opinion about health and safety compliance. As a result, it may now be easier for them to claim they were a whistleblower. In this context, the best defense is a good offense: healthcare employers should already be taking precautions to address the “whistleblower’s” complaints and be able to document this in order to defend against the claims. Reviewing the allegations in the Hinich v. Norwood Life Society, Inc. case, filed in Cook County, Illinois, can help you develop your own proactive plan to avoid such a lawsuit.
With well over 175 COVID-19-related employment lawsuits already having been filed nationwide, employers need to keep abreast of ongoing issues that impact the physical and remote workplace. One area where employers need to be mindful is in the context of employees’ conduct before and after their shifts (also referred to as “preliminary” and “postliminary” activities) and whether such time is compensable. For example, in today’s environment, you may wonder whether you are required to pay employees for time spent washing their personal protective equipment (PPE) or uniforms to limit the transmission risk of COVID-19. Asking yourself six questions will help you determine your wage and hour obligations in these turbulent times.
After much discussion and debate, Congress just passed the Paycheck Protection Program Flexibility Act, which will implement substantial changes to the Paycheck Protection Program (PPP). President Trump is expected to sign the bill into law. Among other changes, the bill extends the time that businesses have to spend PPP loan funds and alters the forgiveness rules, including a reduction in the percentage of the loans that must be used for payroll purposes.
Thanks to an impending new law, Maryland employers faced with large employee reductions will no longer be able to simply determine on their own whether to follow the state’s voluntary advance notification guidelines. Beginning on October 1, 2020, the state law will mandate that certain employers provide advance notice to impacted employees and others ahead of such reductions in force. Because these new state requirements include lower thresholds and other provisions different and broader from the federal WARN Act requirements, they are likely to affect many Maryland employers. What do employers need to know about these significant changes to Maryland’s mini-WARN Act?
The National Basketball Association made national headlines last week by announcing its season would resume later this summer. That same night, league commissioner Adam Silver also garnered national attention – and criticism – when he said that older coaches may not be able to sit with their teams on the sidelines during games. In an interview on TNT’s “Inside the NBA,” Silver said that “some older coaches may not be able to be the bench coach in order to protect them.”
Washington Governor Inslee recently modified the statewide phased reopening plan with a Safe Start County-by-County plan – while also imposing new requirements on all employers by industry. The new plan gives individual counties greater flexibility to advance through each phase as they hit certain metrics, including disease activity, health care system readiness, testing availability, contact tracing, and number of confirmed cases. They will be used as targets rather than hardline rules, and good performance in one metric can offset a near miss in another. Moreover, counties may be permitted to resume certain activities in the next phase even where their progress falls short of supporting wholesale advancement. In short, the new plan offers a more nuanced approach to reopening than the governor’s initial plan. What do Washington employers need to know about this new reopening strategy?
- New Jersey Continues To Reopen As Restrictions Eased For Food And Beverage Establishments And Non-Essential Retail Businesses6.5.20
New Jersey Governor Phil Murphy just issued an executive order lifting some of the existing restrictions that were designated to limit person-to-person contact for the food, beverage, and retail sectors. Specifically, the order permits the provision of in-person, outdoor service at areas designated for food and/or beverage consumption and permits brick-and-mortar premises of non-essential retail businesses to reopen, subject to certain conditions. The order will go into effect at 6:00 A.M. on Monday, June 15. What do employers need to know?
The CDC and the U.S. Department of Labor just released interim guidance for all agriculture employers to provide an action template to protect agriculture workers from COVID-19. Primarily, the guidance addresses exposure risk to agriculture workers, and encourages employers to develop a COVID-19 assessment and control plan to protect themselves and farmworkers, in accordance with the CDC Interim Business Guidance for Businesses and Employees and General Business Frequently Asked Questions.
Just as the 2020 legislative session wrapped up, the Missouri legislature passed a bill increasing the standards for pleading and making it harder to prove claims for punitive damages – especially in employment cases. S.B. 591 is expected to be signed by Governor Parsons, and, if so, will apply to causes of action filed after August 28, 2020. This new law will be welcome news for employers. What do you need to know about the impending changes?
In an exclusive Q&A interview with Wolters Kluwer, Letitia Silas and Kerry Martin, partners in the firm’s Labor Relations practice, address the complexities of labor relations in the American workforce during and after the COVID-19 pandemic.
A nursing home in Georgia has received the first citation issued by the Occupational Safety and Health Administration (OSHA) related to the COVID-19 outbreak. The citation alleges six nursing home employees were hospitalized as a result of COVID-19 that was contracted while at work and the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. The citation alleges the employees were hospitalized around April 19, but the nursing home did not report the hospitalization to OSHA until May 5. OSHA has proposed a $6,500 fine for the alleged violation and classified the violation as “other than serious.”
Inevitably, a mine operator will receive a citation or order it disagrees with. The operator may attempt to conference the citation or order, discussing the merits of an enforcement action with the MSHA district. To request a conference, the operator should submit a written request to the district within 10 days of its issuance. However, it is within MSHA’s discretion whether to even conduct a conference.
After nearly three months of stay-at-home orders and the shutdown of non-essential retail businesses, New Jersey is slowly starting to reopen. Non-essential construction projects resumed, non-essential retail businesses have reopened with curbside pickup options, and Governor Murphy recently announced that non-essential in-person retail, outdoor dining, and daycares and summer camps can reopen as early as June 15, and salons and barbershops can reopen June 22.