Legal Alerts Archive
In an apparent effort to ease some of the anxieties surrounding the impact of the Families First Coronavirus Response Act on employers, the Department of Treasury, IRS, and Department of Labor issued a press release on Friday, March 20, announcing plans to provide some relief for small and midsize employers.
After ordering all non-life sustaining businesses in Pennsylvania to cease physical operations in a March 18 order, Pennsylvania agreed to delay enforcement of the order until Monday, March 23, at 8 a.m. due to a high volume of waiver requests from businesses and stakeholders throughout the Commonwealth.
As part of Connecticut’s continued response to the COVID-19 pandemic, Connecticut Governor Ned Lemont released Executive Order No. 7H on March 20, implementing telecommuting and closures of non-essential businesses or not-for-profit entities, effective March 23, 2020 through April 22, 2020, unless earlier modified, extended, or terminated.
California is under a shelter-in-place order that threatens to impact businesses throughout the state. Meanwhile, the “Families First Coronavirus Response Act” will take effect on April 1, 2020, ushering in an emergency expansion of the federal Family and Medical Leave Act and federal paid sick, among other things. The Fisher Phillips Automotive Dealership Practice Group has collected the most frequently asked questions from California dealerships and assembled our best guidance in one source. For an in-depth discussion of many of these topics, you can access our firm’s Comprehensive and Updated FAQ for Employers on the Covid-19 Coronavirus.
- New Jersey Governor Orders Partial Business Shutdown, Statewide Consistency of Anti-COVID-19 Efforts3.21.20
On Saturday March 21, New Jersey Governor Phil Murphy issued two executive orders, both of which went into effect at 9 p.m. the same day. The first commands citizens to stay at home, with some exceptions, and compels the shutdown or partial shutdown of certain businesses. The second invalidates conflicting county and municipal orders.
Many schools have closed temporarily and moved to remote learning processes consistent with local or state orders, health department, or CDC guidance. We are receiving many questions regarding how schools should manage certain processes both during this time of closure and as they plan to reopen the schools. In addition, many of our schools and daycare centers have remained open. They, too, have questions about their operations and risks associated with same.
Governor Tom Wolf just ordered all non-life sustaining businesses in Pennsylvania to close until further notice. Any businesses that fail to comply with the governor’s order by March 21, 2020 at 12:01 a.m. will be subject to enforcement actions including citations, fines, license suspensions, administrative actions, imprisonment, the forfeiture of disaster relief funds, and the termination of state loan or grant funding.
Wednesday was a busy day for Oregon employers – both from a federal and local level. In Washington, D.C., President Trump signed into law the Families First Coronavirus Response Act, introducing an emergency expansion of the Family and Medical Leave Act (FMLA) and federal paid sick leave, among other things. Back here in Oregon, the Commissioner of the Bureau of Labor and Industries (BOLI) issued an emergency rule amending OFLA’s sick child leave as it relates to school closures, which is relevant considering Governor Brown’s March 17, 2020 executive order closing schools through April 28, 2020.
As part of New York’s continued response to the COVID-19 pandemic, Governor Cuomo announced during a press conference this morning that he will be signing an executive order mandating that 100% of the workforce stay home, excluding essential services. This follows his two previous executive orders requiring that non-essential businesses decrease their in-person staff by 50% effective March 20 at 8 p.m. and 75% effective March 21 at 8 p.m., as we reported yesterday.
North Carolina Governor Roy Cooper recently issued Executive Order No. 118 in response to the COVID-19 coronavirus pandemic. The Executive Order has two main components: (1) it restricts the operations of restaurants and bars; and (2) vastly expands the availability of unemployment insurance benefits to workers adversely affected by COVID-19.
- Emergency Changes To Georgia Unemployment With Harsh Penalties For Employers In Response To COVID-193.19.20
The Georgia Department of Labor announced this week that it passed emergency rules regarding partial unemployment claims and shifted Career Center registration from in-person to online. The rule will remain in effect for 120 days or until the agency proposes or adopts a subsequent rule.
Adopting the mantra “Stay Home for Nevada,” Governor Steve Sisolak has announced enhanced COVID-19 Risk Mitigation measures, including the closure of non-essential public-facing businesses in Nevada for at least 30 days, effective at noon on March 18. His proclamation represents the latest of several measures enacted since he declared a State of Emergency on March 12 in response to COVID-19 coronavirus outbreak.
Ohio Governor Mike DeWine has requested that any Ohio employer that remains open during the current public health crisis take the temperatures of its employees daily before beginning work. According to DeWine, employees who show an elevated temperature (100.4 degrees or higher, or 99.6 for the elderly) should be sent home to help prevent the spread of COVID-19, the disease caused by the new coronavirus.
As Florida continues to see the spread of the COVID-19 coronavirus, South Florida has emerged as a hotspot for the state’s total cases. Today, Miami-Dade County Mayor Carlos Gimenez issued Emergency Order 07-20, mandating the closure of all non-essential retail and commercial establishments effective at 9:00 p.m. on Thursday, March 19. The Executive Order includes exemptions for grocery stores, healthcare providers, media services, and restaurants and other food services, among others. The closure order is scheduled to last for as long as the Miami-Dade County State of Local Emergency is in effect.
In response to the continued surge of COVID-19 coronavirus cases in New York State, Governor Andrew Cuomo announced at a press conference this morning that, beginning this same day, non-essential businesses must decrease their in-office workforce by 75%. This comes on the heels of an Executive Order Governor Cuomo issued just yesterday directing non-essential businesses to decrease their in-office workforce by 50%.
Governor Brown announced earlier this week that she is banning seated dining at the state’s bars and restaurants and prohibiting gatherings of more than 25 people. The March 16 executive order 20-07 includes exemptions for grocery stores and retail outlets. The ban started Tuesday, March 17 and is scheduled to last at least four weeks. Violating the governor’s executive order is a misdemeanor.
The Senate passed the Families First Coronavirus Response Act today, an economic stimulus plan aimed at addressing the impact of the COVID-19 outbreak on Americans and introducing paid sick leave and an expanded family and medical leave act to the nation’s employers. An earlier version of this Act (H.R. 6201) was previously passed by the House in the early hours of Saturday, March 14 before being significantly altered late Monday, March 16. The bill now awaits President Trump’s signature, which is expected later today or tomorrow as he has already publicly supported the bill. Once he signs the bill, it will become effective in 15 days.
While the world grapples with COVID-19 and its implications for daily life, those in the mining industry may wonder whether the onset of the pandemic presents any MSHA compliance issues. Indeed, unlike its sister agency OSHA – which put forth a 35-page guidance document and several online resources – MSHA has thus far been silent on the subject. While no MSHA standard or regulation directly addresses anything like COVID-19, certain issues may arise.
Among other challenges in the last week, California employers have grappled with important issues relating to reducing their workforces: Are we subject to the state and federal laws requiring advance notice of layoffs? If so, what do we do, since it’s not possible to give 60 days of notice? Are there exceptions? What are the consequences of not providing the required notice?
The Equal Employment Opportunity Commission just weighed in on the impact that the COVID-19 coronavirus is having on American workforces and issued a press release today titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” The publication takes a Q&A format and tackles some common areas of concern for employers.
Restaurants and Hospitality businesses are on the front lines of dealing with the COVID-19 coronavirus outbreak. What should you consider in the coming days, weeks, and months to deal with the COVID-19 coronavirus crisis? Below we have provided both an update on the latest federal and state rules relating to coronavirus and a six-point plan you should review and consider adopting.
With Governor Inslee’s announcement Sunday evening that he would be issuing an Emergency Proclamation ordering the closure of restaurants, bars, and entertainment and recreational facilities, all Washington businesses have been taking a closer look at what this means for their employees and operations. The March 16, 2020 Proclamation includes new requirements for retail establishments to remain open, and a second Proclamation further limited the size of public gatherings to 50.
Massachusetts Governor Charlie Baker announced a series of orders on Sunday in the Commonwealth’s latest efforts to deter the spread of COVID-19. The most recent steps include statewide school closures, a prohibition on any gatherings of more than 25 people, and a ban of on-premises consumption of food or drink at all bars and restaurants. These efforts, designed to maximize “social distancing” and “flatten the curve,” will last from March 17 through April 6.
The California Supreme Court issued a long-awaited decision last week that makes clear that a plaintiff who settles and/or dismisses their individual claims does not lose standing to pursue an action under the Labor Code Private Attorneys General Act of 2004 (PAGA).
In an effort to boost the government’s response to the COVID-19 coronavirus outbreak, the U.S. House of Representatives passed the Families First Coronavirus Response Act yesterday, an economic stimulus plan aimed at addressing the impact of COVID-19 on Americans. It includes many provisions which apply to employers, such as paid sick leave for employees impacted by COVID-19 and those serving as caregivers for individuals with COVID-19.
We have previously reported about the new wage and hour laws heading to Colorado in the very near future, but there are some compliance requirements contained in the impending law that employers may easily overlook. Although employers must understand and adapt to all aspects of the new legal framework brought about by the Colorado Department of Labor and Employment’s new Colorado Overtime and Minimum Pay Standards Order #36 (COMPS Order), you should ensure you pay attention to the COMPS Order’s significant new posting, distribution, and translation requirements.
The Colorado Department of Labor and Employment recently adopted the Colorado Overtime and Minimum Pay Standards Order #36 (COMPS Order), meaning employers need to brace for new wage and hour laws related to employee coverage, the minimum salary threshold, and expanded break rights. The new laws, which replace the Colorado Minimum Wage Order #35, will go into effect on March 16, 2020. What are the more significant changes Colorado employers need to be prepare for?
The Centers for Disease Control (CDC) recently addressed the possible spread of COVID-2019 coronavirus across the United States and outlined contingency recommendations for schools and businesses. To help schools think through the issues for their institutions and communities, we are outlining some Frequently Asked Questions (FAQs) about COVID-2019, as well as a recommended 10-point action plan, that schools can take to assure themselves and their communities that they are best positioned to address potential issues. Because facts are rapidly changing, we recommend you check current CDC and other status reports.
Employers are not permitted to justify disparity in pay based on prior pay history, the 9th Circuit Court of Appeals just ruled, eliminating a defense to pay equity claims for businesses across the west coast. Although the Equal Pay Act (EPA) contains a catch-all provision allowing employers to defend pay differentials caused by “any other factor other than sex,” an en banc panel concluded in the February 27 ruling in Rizo v. Yovino that prior salary history does not fit into that exception. Employers in the 9th Circuit now have certainty when it comes to understanding the contours of the federal equal pay statute and need to adjust their business practices accordingly.
In a unanimous decision, the Supreme Court just declined to limit the timeframe in which disgruntled employees could bring suit challenging the investment decisions made by plan fiduciaries. While the Employee Retirement Income Security Act (ERISA) provides a shrunken three-year statute of limitations when workers have “actual knowledge” of an alleged breach or violation, the Court concluded that this shorter period is not triggered when the employee in question chose not to read or did not recall having read all the relevant information about the investments provided by the plan. In such situations, the Court ruled in yesterday’s decision, a longer six-year statute of limitations applies. This development opens employers and retirement plan fiduciaries up to an increased risk of legal challenges, while heightening the standard for evaluating breach claims and class action certifications (Intel Corp. Investment Policy Committee v. Sulyma).
The National Labor Relations Board just published a final rule that will soon fundamentally alter the definition of joint employment, making it more difficult for businesses to be held legally responsible for alleged labor law violations by staffing companies, franchisees, and other related organizations. The rule will also limit the ability of employees from affiliated companies to join together to form unions.
In a unanimous decision, the California Supreme Court just held that the time spent by employees waiting for and undergoing security checks of bags and other personal items is compensable time under California law, even when the policy only applies to employees who choose to bring personal items to work. However, in a bit of good news for employers, the court left some wiggle room rather than craft a bright-line test by providing a multi-factor test as to whether “onsite employer-controlled activities” must be compensated as “hours worked.” In any event, this latest well-articulated decision instructs that, under the new multi-factor factor test, the element of employee choice is only one of several issues to consider when determining if the employee is subject to the employer’s control for an activity and thus owed compensation for that time (Frlekin v. Apple, Inc.).
Maryland has just joined a growing number of states and local jurisdictions — including Baltimore, Montgomery County, and Prince George’s County — in banning private employers from requesting information about an applicant’s criminal history in job applications. Thanks to the state legislature overriding the governor’s veto, it appears the ban-the-box law has taken effect immediately, so the time is now to make sure you are in compliance with Maryland’s newest employment statute.
The U.S. House of Representatives just passed a bill that would tilt the scales of labor law unequivocally in favor of organized labor. The Protecting the Right to Organize (PRO) Act would bring about a radical shift in labor relations and could even reverse the steady decline of unionization seen in this country since the 1950s. To reach this goal, the PRO Act takes aim at virtually every pro-employer right, outlawing and replacing them with a Frankenstein-like collection of pro-labor protections. What do employers need to know about the bill passed on February 6, and what could the future hold?
A federal appeals court just resurrected the salary history ban that will now prevent Philadelphia employers from asking job applicants about how much they are paid or setting new salaries based on pay history. Thanks to today’s 3rd Circuit Court of Appeals ruling, employers in Philadelphia must immediately alter their hiring practices and cease the practice of asking questions about compensation history on applications, in interviews, and at any stage during the hiring practice. You must also ensure that you do not use this forbidden information when setting new salary levels. What do employers need to know about today’s ruling and how best to come into compliance?
The federal government just released an updated Form I-9, and although you aren’t required to use the new version until May 1, 2020, best practices dictate that you should start using it immediately. It has been a few years since United States Citizenship and Immigration Services (USCIS) updated the Form I-9, which verifies the identity of new hires and ensures they are authorized to work in the United States. But with this recent announcement, you should take immediate steps to come into compliance or risk financial penalties.
A federal judge just extended the reprieve that permitted California employers to escape the grasp of a newly enacted law that aimed to prevent them from utilizing mandatory arbitration agreements with their employees. After granting a temporary restraining order that pressed pause on the new law before it could take effect on January 1, the court today granted a full preliminary injunction that will block the law during the court proceedings that will examine the legality of the new statute. This is good news for California employers, but because things could evolve rapidly over the coming weeks and months, you will want to pay particular attention to upcoming developments to ensure you are in compliance.
- 10 Takeaways From Latest EEOC Statistics1.28.20
Employers paid out a record $68.2 million to those alleging sexual harassment violations through the EEOC in 2019, shattering the all-time record by over $10 million and reminding us all that the #MeToo movement continues to be a major influence on workplaces across the country. This is just one of many interesting findings released by the Equal Employment Opportunity Commission (EEOC) in its annual data summary covering fiscal year 2019 (which wrapped up in September). The January 24 release is full of eye-opening statistics that could help you set your compliance priorities for 2020 and beyond. Here are 10 thought-provoking takeaways from the EEOC’s annual summary.
Thanks to a new law just signed into effect by Governor Phil Murphy, New Jersey employers will soon be required to provide severance pay and increased advance notice to most workers affected by a mass layoff or termination or transfer of operations. With the January 21 expansion of the Millville Dallas Airmotive Plant Job Loss Notification Act – otherwise known as the New Jersey WARN Act – most doing business in the state will have to provide a week’s worth of pay for each year of service under an employee’s belt as part of any mass layoff or termination or transfer of operations. The law making New Jersey the first state in the country to mandate severance pay during layoffs won’t take effect until July 19, 2020, but employers should begin to prepare now. Below is a summary of the law’s key points, along with a series of FAQs to help with your compliance efforts.
Now that we know that the Kansas City Chiefs will be playing the San Francisco 49ers in Super Bowl LIV in a few weeks, it’s time to assess whether this annual American tradition will create any workplace issues for your organization. With over 110 million television viewers expected to tune in – including die-hard supporters, casual fans, and those only interested in the halftime show and the commercials – you can be sure that many of your employees will be spending Sunday, February 2 watching football.
After a busy 2019 of expanding workplace protections in New York, Governor Cuomo just issued his 2020 State of the State to lay out his priorities for the coming year. And it should come as no surprise that several of the policy proposals announced on January 8 indicated an intent to continue New York State’s expansion of workplace laws into 2020 and beyond. Among the highlights to look for in the new year: paid sick leave, gig economy reforms, pay equity, and more.
The U.S. Department of Labor just finalized its rule that attempts to limit the scope of joint employment liability for wage and hour matters. Although much remains to be seen, this rule may usher in a new era, and could lead to fewer businesses being found to be joint employers by a court or agency when it comes to minimum wage, overtime, and other similar liability under the Fair Labor Standards Act (FLSA). However, many questions still remain about various aspects of this rule, particularly how courts will apply the test’s four factors as well as the alternative “catch-all” test. You should now reexamine your business models to capitalize on the new standard, which should take effect on or about March 16, 2020.
New York employers will soon be required to pay an estimated 70,000 tipped workers the full minimum wage, regardless of any tips received. Governor Andrew Cuomo just announced on December 31 that the New York State Department of Labor is issuing an order eliminating the tip credit for “miscellaneous” industries statewide by the end of 2020. That credit currently allows employers to pay a subminimum wage to certain tipped workers such as nail salon workers, hairdressers, aestheticians, car wash workers, valet parking attendants, door-persons, tow truck drivers, dog groomers and tour guides. Importantly, however, workers in the hospitality industry – such as restaurant wait staff, bartenders, or other service employees who customarily receive tips – will not be impacted by this impending change, and employers can continue to pay them a subminimum wage so long as tips received ensure the workers earn the applicable minimum wage.
As we look forward to the New Year, Massachusetts employers should be aware of upcoming changes to the Commonwealth’s employment laws that took effect on January 1, 2020, as well as possible changes we foresee on the horizon. Now is also the perfect time to ensure you are in compliance with laws that took effect in 2019.
Thanks to a constitutional provision that requires Florida to adjust its minimum wage each year to match inflation, employers in the Sunshine State must now pay their employees at least $8.56 per hour. The 10-cent increase was immediately effective when the clock struck midnight and ushered in 2020. But employers might not want to get too comfortable with the current level. Come November, Florida citizens may be voting on a massive jump that could ultimately increase the minimum wage to $15.00 per hour.
California employers just received a last-minute reprieve from complying with a newly enacted law that aims to prevent them from utilizing mandatory arbitration agreements with their employees – at least for now. A federal court just this morning granted a temporary restraining order requested by a coalition of business groups that presses pause on the new law before it could take effect on January 1. But the battle is just beginning, so California employers will want to pay particular attention to upcoming developments to ensure they are in compliance with the current state of employment arbitration agreement law.
The National Labor Relations Board just ruled that employers may now require confidentiality from employees involved in open workplace investigations. Importantly, yesterday’s decision in Apogee Retail LLC resolves conflicting commands from the Board and the Equal Employment Opportunity Commission regarding investigation confidentiality that has plagued employers for years.
The National Labor Relations Board decided yesterday that employees have no statutory right to use an employer’s equipment, including work emails and IT resources. Therefore, employers may legally restrict the use of their equipment, such as work emails, even for union organizing activities or for other activities protected under Section 7 of the National Labor Relations Act. In reversing a significant Obama-era ruling, the Caesar’s Entertainment decision holds that employees’ statutory rights to engage in protected, Section 7 activities must yield to the property rights of employers to control the use of their equipment, provided that employers do not target union-related communications and activity and that employees have reasonable alternate means of communication available to them.
The National Labor Relations Board just decided that employers have the right to cease union dues collections once the relevant collective bargaining agreement expires, again restoring balance to the labor relations landscape. Yesterday’s decision in Valley Hospital Medical Center, Inc., which returns to a legal standard that had stood for decades before being overturned in 2015, will provide employers more options during the negotiation process.
The Equal Employment Opportunity Commission today withdrew its 1997 policy statement that had disapproved of the practice of requiring workers to enter into arbitration agreements to resolve workplace discrimination claims and instructed its staff to proceed with claims against employers despite the existence of such agreements. The move, following two decades of Supreme Court decisions supporting the use of arbitration, is yet another recent step taken by federal agencies to restore a natural balance in the area of workplace conflicts. It’s not yet known how this policy will impact day-to-day operations at the EEOC, but it could limit the type of enforcement action employers may face if they have enforceable arbitration agreements in place.