Legal Alerts Archive
- 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.
The U.S. Department of Labor just released a Field Assistance Bulletin (FAB) to provide employers with guidance regarding their wage and hour obligations to track the hours of employees working remotely or teleworking. Importantly, while the August 24 FAB directly speaks to employers’ Fair Labor Standards Act (FLSA) requirements under remote work arrangements that have arisen amid COVID-19, it also applies to all other telework or remote work arrangements. This guidance may be especially useful to employers who are new to the remote work world.
As New Jersey schools announce their re-opening plans, employers in the state are trying to understand their obligations under different federal and state leave laws. As we have seen, some schools plan to remain open several days a week and direct students to attend remotely the other days. Others will split classes into morning and afternoon sessions, allowing students attending in the morning to participate remotely at home for the rest of day and vice versa. Still others will require physical attendance at all times, while some will choose to operate entirely under a remote learning model.
As the summer draws to a close, schools are announcing their re-opening plans, which vary widely across states and localities. Some schools plan to remain open several days a week and direct students to attend remotely the other days. Others will split classes into morning and afternoon sessions, allowing students attending in the morning to participate remotely at home for the rest of day and vice versa. Still others will require physical attendance at all times, while some will choose to operate entirely under a remote learning model.
This article addresses many employment-related issues facing employers in the wake of hurricane-related disasters; consequently, in addition to federal laws, we also focus on certain state laws, especially those in the areas most impacted by the storms. Nevertheless, the information here is of more widespread applicability than just the current hurricane season, and may be helpful following any unexpected natural catastrophe.
Addressing the issue for the first time since the pandemic, the National Labor Relations Board recently released a series of advice memoranda instructing its Regional offices to dismiss various COVID-19 related charges against employers. The agency dismissed all of the underlying charges, further demonstrating its recent tendency to extend a degree of latitude to employers confronting virus-related challenges.
As the flu season approaches and the COVID-19 pandemic continues, employers’ mandatory vaccination policies may soon become more important than ever. For several reasons, those policies will also attract unprecedented scrutiny. First, the Centers for Disease Control (CDC) has stated that getting the flu vaccine this fall will be all the more important, both to reduce health risks for individuals and to conserve the country’s potentially scarce healthcare resources, particularly for respiratory conditions like the flu and COVID-19. Second, one or more COVID-19 vaccines are expected to become available later this year or in early 2021, offering possible protection from this worldwide scourge. Third, mandatory vaccination policies sometimes spark deeply personal responses at a time when political differences and social justice issues remain at the forefront of the nation’s consciousness.
- Conflict Between State And City Orders Resolved: Georgia Businesses May Opt In Or Out Of Local Mask Orders8.17.20
Georgia Governor Brian Kemp issued an August 15 Executive Order — effective through August 31 — that allows local governments to require individuals to wear face coverings, masks, face shields, or personal protective equipment if certain conditions are met. The August 15 Executive Order protects businesses from liability from any local mask order, and gives businesses the option to choose not to permit enforcement of a local mask order against individuals on their property. Otherwise, the August 15 Executive Order is nearly identical to the prior Orders released in July that replaced the initial guidelines and requirements for businesses to reopen. What do you need to know about this order, and what should you do as you continue to reopen and operate your business?
Throughout the COVID-19 pandemic, the Centers for Disease Control and Prevention has issued constantly changing guidance for employers that many view as complex, confusing, and impractical. In its perplexing web of guidelines, the CDC recommends that your company take several actions to protect workers from contracting COVID-19, like self-isolating sick employees, quarantining exposed employees, screening employees for symptoms prior to work, and installing partitions to protect public-facing employees.
In the last Mining MSHA article, we explored the unwarrantable failure finding and indicated that an unwarrantable failure finding can lead to agent liability. We continue this series with a discussion of agent liability. This article focuses on individual civil liability. Operators should understand what agent liability is and how to avoid special investigations and a potential “knowing violation” of a mandatory standard.
Although the Centers for Disease Control and Prevention has published guidelines to help employers navigate the many different return-to-work scenarios presented by COVID-19, it is difficult to understand your obligations and recommended best practices in light of the many scenarios you encounter at your workplace. When can employees safely return to work after a COVID-19 diagnosis? What if they show some symptoms but haven’t been tested? What if they have been exposed to an infected person but show no symptoms? These and many other similar questions are arising daily in workplaces across the country, and there doesn’t seem to be a single place where you can find a roadmap to help you find your way – until now.
The Equal Employment Opportunity Commission recently released two new technical assistance documents that address issues concerning the employment provisions of the Americans with Disabilities Act in relation to the use of opioids by employees. The August 5 guidance documents are presented in a question and answer format and, although not legally binding on the public, provide valuable insight into how the EEOC expects the reasonable accommodation process to operate as it relates to opioid-related disabilities. What do employers need to know about each document?
- Executive Action Takes Aim At Reducing Payroll Taxes And Extending Enhanced Unemployment Payments As COVID-19 Crisis Continues8.12.20
While Congress continues to work on a legislative deal, President Trump signed Executive Memoranda and Executive Orders that are designed to provide additional stimulus to address the ongoing economic ramifications of the COVID-19 crisis. This article focuses on two employment-related directives from the August 8 actions that directly impact employers: (1) deferral of payroll taxes; and (2) the extension of enhanced unemployment insurance benefits to dislocated workers. What do employers need to know about these developments and what needs to be done as a result?
- Nevada Enacts COVID-19 Liability Protection For Businesses But Imposes Additional Mitigation Requirements For Public Accommodation Facilities8.11.20
At the conclusion of its Special Legislative Session, the Nevada Legislature passed a law granting legal immunity from COVID-19-related lawsuits to most businesses, nonprofits, and government agencies so long as they adhere to requirements promulgated by local, state and federal agencies, and refrain from acting in a grossly negligent manner. Senate Bill 4 was signed into law by Governor Steven Sisolak on August 11 and will be effective immediately upon promulgation of the required regulations.
Though sometimes overlooked given the abundance of federal and state statutory claims, employers must remember that their existing contractual obligations remain in place during the pandemic. As a review of the Fisher Phillips COVID-19 Employment Litigation Tracker demonstrates, employers must take care when imposing unilateral terminations or salary reductions against employees with written employment agreements or they could face a breach of contract lawsuit – even where the actions are a result of the financial exigencies created by COVID-19. Instead, employers should review any written employment agreements and confirm that the proposed action is permitted (or defensible) before doing so. A failure to consider existing contractual obligations could result in a claim for breach of contract.
As COVID-19 cases and deaths continue to rise, so too does the number of lawsuits filed against employers. Recently, an increasing number of families of employees who died from COVID-19 have asserted wrongful death actions against employers for failing to keep their family members safe while at work. What can employers learn from these lawsuits to not only keep their workers safe but avoid being on the receiving end of such a claim?
Businesses in Georgia now have protection from civil lawsuits arising out of alleged COVID-19 exposure, transmission, infection or potential exposure. The Georgia COVID-19 Pandemic Business Safety Act (GCPBSA), which is now in effect, protects businesses and individuals in many circumstances from COVID-19 exposure claims (and other types of claims) that accrue before July 14, 2021. You must take some specific proactive steps to receive this protection, however – so you need to make sure you understand the details of this new law.
As of this writing, employees from across the country have filed more than 430 COVID-19-related lawsuits against their employers and former employers. Not all of these claims have focused on the Family First Coronavirus Response Act (FFCRA) — the federal legislation governing Emergency Paid Sick Leave and Emergency Family and Medical Leave — but rather a substantial number of lawsuits have alleged employer impropriety using COVID-19 as a factual backdrop. Examining some of these cases more closely, some common themes emerge. How should employers prepare for potential litigation?
In a surprising and significant ruling yesterday, a New York federal judge tossed out several key Department of Labor rules regulating the Families First Coronavirus Response Act (FFCRA), meaning that more workers will be able to take paid leave under the new law. The ruling also creates uncertainty for employers trying to comply with administrative aspects of the leave act requirements, and brings us back to the confusing early days of the new law before the DOL issued clarifying regulations. The scope of the ruling is unclear at present, as the judge did not specifically indicate if it applies nationally or just in New York. However, even if limited in scope, the same reasoning could be followed by other courts considering similar challenges in other parts of the country.
- Illinois Issues Guidance For Employers’ Requirement To Report Adverse Judgments And Administrative Rulings7.30.20
After state lawmakers passed sweeping expansions to the Illinois Human Rights Act (IHRA) in August 2019, employers have been left in the dark as to how the state would interpret and enforce the new requirement forcing employers to report adverse judgments or administrative rulings regarding unlawful discrimination to the Illinois Department of Human Rights (IDHR). This has been particularly frustrating given that the change went into effect on July 1, 2020. Fortunately, the IDHR just issued guidance for these requirements. What do Illinois employers need to know in order be ready to comply with their reporting obligations under the IHRA?
Although COVID-19 remains a significant public health concern, companies throughout the country have reopened their manufacturing facilities. As they reopen, companies should follow certain best practices to ensure the safety of their employees and avoid potential liability. Here is a five-step best practices plan to put your company – and your employees – in the best position to succeed.
The National Labor Relations Board has just proposed new union election rules that would reduce the information employers must provide to unions prior to elections and allowing absentee voting by workers on military leave. This is the third rule the Board has proposed during the Trump administration impacting elections of bargaining representatives. What do employers need to know about this proposal?
In our last article, we explored the concept of negligence and how it can impact a citation or order. We continue this series with a discussion of the unwarrantable failure designation. Operators should understand what an unwarrantable failure is and how to avoid an allegation of aggravated conduct. Finally, we will provide operators a list of best practices to avoid this elevated negligence determination.
California Governor Gavin Newsom just released a 32-page COVID-19 Employer Playbook providing additional guidance for California employers related to COVID-19 and safe re-opening. Though the July 24 Playbook provides a helpful overview for employers regarding steps to take to ensure a safe workplace, like other guidance issued since the start of the pandemic, there are areas that are still unclear and will likely require further guidance. Here are the Playbook highlights you need to know about.
The state of New York has not been immune to the fast-growing COVID-19 employment litigation case load. This should come as no surprise to businesses located here, given that New York has been one of the states hit hardest by the pandemic and typically has one of the most voluminous employment litigation dockets. According to the FP COVID-19 Employment Litigation Tracker, a total of 28 cases have been filed in New York state and federal courts as of July 22. The U.S. District Court for the Southern District of New York, which encompasses Manhattan, leads the pack with 11 cases in its district. What are the five most important lessons you can learn from this data?
Reports of increased deaths and hospitalizations of nursing home employees infected with COVID-19 have prompted unprecedented numbers of federal and state workplace safety inspections at healthcare facilities. Just this week, the Occupational Safety and Health Administration (OSHA) issued its second COVID-19-related citation to an Ohio healthcare company for $40,482. What do healthcare employers need to know about this July 21 development and what can you do to ensure your workplaces meet the necessary safety standards?
In response to the rise and spread of newly reported COVID-19 cases, Ohio’s Department of Health issued an order this week mandating the use of face coverings in public. In addition to the mask mandate, the agency issued a new travel advisory for Ohioans. What do Ohio employers need to know about these developments?
Because COVID-19 continues to spread at a rapid rate throughout the country, with positivity rates hovering between 7% and 8% in Indiana, Governor Eric Holcomb recently announced he will sign an executive order requiring face coverings to be worn in most public and commercial settings starting Monday, July 27. Governor Holcomb is expected to sign the Order today. What do employers need to know about this new requirement?
- Virginia Creates Nation’s First Mandatory COVID-19 Workplace Safety Rules Effective July 27 – Look For Other States To Follow Suit (UPDATED)7.23.20
Virginia just adopted the nation’s first enforceable regulatory mandate regarding COVID-19 safety measures in the workplace. While the emergency standard adopted today by the Virginia Safety and Health Code Board will only be applicable to and enforceable against employers in Virginia, it sets the groundwork for other state plan states to adopt similar enforcement measures, including California, North Carolina, Oregon, and Michigan. What do Virginia employers – and employers around the country – need to know about this development?
- What Employers Need To Know About DOL’s New Guidance On Return-To-Work, Remote Work, And Wage And Hour Issues7.23.20
The Department of Labor issued several sets of new guidance materials to employers as return-to-work, remote work, and wage and hour issues remain hot – and sometimes confusing – topics. The agency recognizes that the intersection between the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA) can be a challenging place for compliance purposes, and therefore compiled some additional materials to aid you in navigating this journey.
- NLRB Rules That Employers Need Not Tolerate Sexist, Racist, Or Abusive Conduct By Employees Engaged In Otherwise Protected Activities7.23.20
In a critical reversal of Board precedent, the NLRB just unanimously held that employees engaging in abusive conduct in the course of protected concerted activities are not automatically shielded from discipline under the National Labor Relations Act (NLRA). This welcomed decision will make it less challenging for employers to terminate employees who engage in abusive, sexist, and racist behavior in the course of protected activity, including union activity. What do employers need to know about this significant ruling?
- Time To Reassess International Data Transfers After Court Declares EU-U.S. Privacy Shield Invalid: A 4-Step Action Plan7.22.20
The Court of Justice of the European Union just ruled that an important data protection scheme established between the European Union and the United States is invalid, calling into question many aspects of important data transfers carried out by private businesses in America. In what is being referred to as the “Schrems II” decision, the July 16 decision invalidating the EU-U.S. Privacy Shield reinforces the importance of data protection. It raises important questions as to the future of international data flows and use of data transfer mechanisms between the EU and companies around the globe, but especially those in the U.S.
During the COVID-19 pandemic, employers have had to manage an ever-increasing variety of stressful employee related issues. However, as the crisis surges forward, with multiple states facing increased rates of infection as businesses reopen, there is a new issue that employers should be wary of: increased employee substance misuse and substance use disorders.
The Centers for Disease Control and Prevention just changed its guidance for discontinuing transmission-based precautions and disposition of patients with COVID-19 for both healthcare and non-healthcare settings. Generally, the updated guidance reflects a better understanding of transmission and those most at risk for severe illness.
The Department of Labor just provided employers a sign that it might be open to altering the Family and Medical Leave Act regulations and guidance, perhaps resolving some of the more difficult aspects of the law that cause the most administrative and implementation headaches. In a July 16 release, the DOL published a request for information seeking public input about the way it interprets and implements the federal leave law so it can “provide a foundation for examining the effectiveness of the current regulations in meeting the statutory objectives of the FMLA.” What are the top five changes that could be on the horizon?
- Transportation Arbitration Agreements Ruled Enforceable Under New Jersey’s Arbitration Act Despite U.S. Supreme Court Ruling7.17.20
The New Jersey Supreme Court just ruled that state law ensures the enforceability of arbitration agreements with transportation workers despite a recent U.S. Supreme Court case that struck down such an agreement under federal law. The July 14 decision in Arafa v. Health Express Corp., which sheds new light on the contours of the Supreme Court’s New Prime v. Oliveira decision, is a welcome development for New Jersey employers – and is perhaps a sign of things to come for businesses across the country. What do you need to know about this latest development?
As the pandemic continues to scar wide portions of our society, a number of employees have expressed to their employers an interest in donating their own PTO to help co-workers and community members adversely impacted by COVID-19. Employers have the opportunity to harness this collective spirit of generosity with a special leave-based donation program designed specifically for COVID-19, or with traditional approaches adapted for this specific circumstance. If you want to provide employees with an opportunity to donate leave to assist pandemic victims, there are several options.
- Georgia Schools Required To Screen Staff And Students While Conflict Between State And City Orders Remains7.16.20
Georgia Governor Brian Kemp issued a July 15 Executive Order that imposes new requirements on Georgia schools to help mitigate the spread of COVID-19 and that reiterates the supremacy of state law over local orders and ordinances during the pandemic. With a few exceptions, the latest Executive Order, effective through July 31, is nearly identical to the prior Orders released in June that replaced the initial guidelines and requirements for businesses to reopen. What do you need to know about this order, and what should you do as you continue to reopen and operate your business?
As an increasing number of businesses begin to require face coverings in their facilities – whether as a result of a local legal mandate or in the interest of public safety – there has been a corresponding increase in the number of well-publicized reports of customers and guests reacting in a belligerent, hostile, or even violent manner after being asked to comply with mask rules. What should your business do to minimize the chances of such an incident occurring in your workplace, and what should you do if an anti-mask guest disrupts your business? Here is a five-step plan to address this unfortunate part of our new reality.
Colorado now joins the growing number of states requiring most employers to provide paid sick leave – not only extending COVID-19-related sick leave protections to take effect immediately, but also creating a traditional paid sick leave requirement beginning January 1, 2021. What do Colorado employers need to know about the Healthy Families and Workplaces Act?
The White House recently announced that nonimmigrant visa holder students may not remain in the United States if they take full online course loads in the fall. Additionally, the Department of State announced it will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester. The directive stemming from the July 6 announcement, enforced by Immigration and Customs Enforcement (ICE), will impact foreign national students studying in the United States on an F-1 or M-1 visa. What do educational institutions need to know about this development, and what can they do to address the situation?
- What The Supreme Court’s LGBTQ Decision May Mean For Bathroom And Locker Room Access In Title IX Schools: A 4-Step Best Practices Guide7.15.20
When the Supreme Court recently concluded that Title VII protects LGBTQ employees from discrimination based on their “sex” in its Bostock v. Clayton County opinion, many schools immediately asked: “What does this mean for us?” – especially as it relates to bathroom and locker room access issues for LGBTQ students and employees. Since the definition of “sex” and court decisions interpreting Title VII and Title IX (and their regulations) are so interconnected, it stands to reason that schools would begin to question whether the legal standards have now changed. What do schools need to know about the current state of the law given this landmark decision? We’ll give you an analysis and provide a four-step best practices guide to assist schools in navigating this new terrain.
Maryland employers face a broad array of new workplace rules set to take effect on October 1, 2020. The new legislation will add protected characteristics to Maryland’s anti-discrimination law, create new mandatory advance notice requirements in cases of mass layoffs, install new obligations and protections related to employee salaries and related inquiries, and prohibit non-consensual use of facial recognition services during the hiring process. October 1 will be here before you know it – what do you need to do this summer to prepare for these new obligations?
In an effort to slow the rising number of positive COVID-19 cases, Mississippi governor Tate Reeves recently issued Executive Order 1507, requiring businesses in 13 counties to require masks for both their employees and customers. The mask mandate is effective Monday, July 13 through Monday, July 20, 2020, and affects the following counties: Claiborne, Desoto, Grenada, Harrison, Hinds, Jackson, Jefferson, Madison, Quitman, Rankin, Sunflower, Washington, and Wayne.
So far in this series, we have discussed conferencing and contesting citations and orders and what is “Significant and Substantial.” Here, we turn our attention to another important designation on a citation or order: operator negligence.