Articles on workplace-related issues from newspapers and Internet news sources around the country.
September 17, 2021
President Biden Tasks Federal Contractors With Ensuring Adequate COVID-19 Safety Protocols
Source: Laura A. Mitchell, Leslie A. Stout-Tabackman and F. Christopher Chrisbens, JacksonLewis
The Path Out of the Pandemic - President Biden’s COVID-19 Action Plan is broad and multi-faceted. In addition to a strategy for employers with at least 100 employees, the Plan includes an Executive Order tasking federal contractors with a direct and primary role in implementing COVID-19 safeguards. Read this article to learn more.
Discipline Over ‘Mark of the Beast’ Letter OK, NLRB Lawyers Say
Source: Robert Iafolla, Bloomberg Law
A Seattle hospital could lawfully discipline a worker for emailing coworkers a letter that contained apocalyptic prophecies, Bible verses, and a warning about a “Mark of the Beast” Covid-19 vaccine that would doom a recipient’s soul, the National Labor Relations Board’s legal division said. Read this article to learn more.
MSHA Unveils Proposed Powered Haulage Rule
Source: William K. Doran and Margaret S. Lopez, Ogletree Deakins
On September 8, 2021, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced its proposed powered haulage rule for surface mines and surface areas of underground mines. The proposed rule, which is open to public comment through November 8, 2021, will be set out at a new 30 C.F.R. §§ 56.23000–23004; §§ 57.23000–23004; and §§ 77.2100–2104 (surface coal). The proposed rule would require mine operators with six or more miners to develop and implement a written powered haulage safety program. The rule would not apply to belt conveyors. According to MSHA, this rule would not create any “universal mandates” regarding the specifics of each operator’s program. Read this article to learn more.
September 16, 2021
Activision Blizzard employees file unfair labor practice suit against company
Source: Shannon Liao, Washington Post
Activision Blizzard employees and the Communications Workers of America (CWA), a major media labor union, have filed an unfair labor practice lawsuit against Activision Blizzard accusing the video game company of worker intimidation and union busting. The union claims that Activision Blizzard is using coercive tactics to stop employees from unionizing. Read this article to learn more.
California Law Limiting Arbitration Resurrected by Ninth Circuit (1)
Source: Erin Mulvaney, Bloomberg Law
Workers in California won’t be forced into arbitration as a condition of employment thanks to a federal appeals court ruling that revived a novel state law, threatening a common business practice and carving out a unique way to circumvent a federal law that controls these contracts. Read this article to learn more.
Tight U.S. Labor Market Makes $15 an Hour De Facto Minimum Wage
Source: Michael Sasso, Bloomberg Law
The push for a $15 federal minimum wage may have stalled in Congress, but Covid-19 is helping steer the U.S. ever closer toward a key objective of labor unions and their allies in the White House and on Capitol Hill. Read this article to learn more.
September 15, 2021
Enhanced Remedies for NLRA Violations Are on the Horizon
Source: Stevens & Lee, Stevens & Lee
Jennifer Abruzzo, the General Counsel for the National Labor Relations Board (“NLRB”), recently issued a memorandum advising Regional Offices of the NLRB to seek a variety of remedies to ensure that victims of unlawful conduct under the National Labor Relations Act (“NLRA”) are made whole for losses they have suffered. Read this article to learn more.
Six-Figure Salary Plus Overtime Ruling Hits Energy Sector Pay
Source: Erin Mulvaney, Bloomberg Law
A federal appeals court in New Orleans recently ruled that an offshore oil rig manager can get overtime despite making $200,000 a year, prompting energy sector concerns about the decision’s broad effects on industry pay practices. Read this article to learn more.
Not So Fast! California Bill Would Require Disclosure of “Quotas” to Warehouse Distribution Center Employees
Source: Bruce Sarchet , Littler
The California legislature has wrapped up its annual legislative session, once again sending a number of employment and labor law bills to Governor Newsom’s desk. One of the most notable, and potentially revolutionary bills – AB 701 – seeks to regulate the use of employee “quotas” in warehouse distribution centers. Read this article to learn more.
September 14, 2021
Unions split on vaccine mandates, complicating Biden push
Source: Nicholas Riccardi, ABC News
The National Nurses Union applauded President Joe Biden's proposal to require that companies with more than 100 employees vaccinate their work force. The American Federation of Teachers once said vaccine mandates weren't necessary, but now embraces them. In Oregon, police and firefighter unions are suing to block a mask mandate for state workers. Read this article to learn more.
Walmart's wage bump signals pressure to raise pay in industry battle for labor
Source: Richa Naidu, Reuters
Walmart Inc's (WMT.N) move on Thursday to give 565,000 of its U.S. store workers raises of at least $1 puts the spotlight on the industry's tight, competitive labor market as the all-important holiday shopping season is set to kick off. Read this article to learn more.
Unions Pressure OSHA to Make Temporary COVID-19 Rule Permanent and Cover Manufacturing Companies
Source: Adam D. Hirtz and Nina C. Sykora, JacksonLewis
Labor unions want to broaden the reach of the COVID-19 Emergency Temporary Standard (ETS) for healthcare settings promulgated by the Occupational Safety and Health Administration (OSHA) on July 10, 2021, and set to expire in December 2021, to manufacturers and other employers. They also want OSHA to make the ETS permanent. Read this article to learn more.
September 13, 2021
After the Storm: Employers Obligations Following Natural Disasters
Source: Charles F. Seemann III, Susan Fahey Desmond and Michael Brian Taylor, JacksonLewis
Hurricane Ida reportedly was the third most powerful storm on record to hit Louisiana when it landed on August 29, 2021. Indeed, more than 590,000 homes and businesses across the region still were without power as of September 5th, according to news reports. The hurricane’s full economic impact may not be realized for months. Read this article to learn more.
Biden Order of Paid Time Off for Covid-19 Shots Has Precedent
Source: Chris Marr, Bloomberg Law
President Joe Biden said he’ll require private employers to provide paid time off for their workers to be vaccinated against Covid-19 and to recover from any after-effects. Such time off mandates are uncommon, though not unprecedented, but the president’s initiative may still face legal pushback. Read this article to learn more.
U.S. House Poised to Add Civil Penalties to National Labor Relations Act
Source: Jim Paretti, Maury Baskin, and Michael J. Lotito, Littler
With supporters of the Protecting the Right to Organize (PRO) Act unable to advance the legislation under the regular rules of the Senate, they are now attempting to move pieces of the legislation by way of special rules relating to the federal budget. Legislative language released on September 8, 2021 indicates that provisions in the PRO Act imposing civil penalties for unfair labor practices (ULPs), and the creation of new ULPs, will be included when the House takes up “budget reconciliation” in the near future. Read this article to learn more.
September 10, 2021
Massachusetts Supreme Judicial Court Addresses ‘Service Charges’ Under the Massachusetts Tips Act
Source: Lisa Stephanian Burton and Laurielle Howe, Ogletree Deakins
Massachusetts is seeing an increase in Tips Act claims, and the Massachusetts Supreme Judicial Court (SJC) just reinforced that a lack of clarity in fee- and tip-related documentation may result in employer liability, including mandatory treble damages and attorneys’ fees. The Massachusetts Tips Act requires that an employer or person who collects “service charges” or “tips” (as those terms are defined under the act) remit the proceeds of those charges to service employees and waitstaff in proportion to the services the employees provided to the employer. Massachusetts has a long history of protecting service employees’ ability to collect tips and service charges, and the recent decision handed down by Massachusetts’s highest court in Hovagimian v. Concert Blue Hill, LLC serves as a reminder that employers may want to take care when drafting contractual documents. Read this article to learn more.
Google may cut pay of staff who work from home
Source: BBC
Google employees in the US who opt to work from home permanently may get a pay cut. Read this article to learn more.
Biden Asks OSHA to Order Vaccine Mandates at Large Employers
Source: Lauren Hirsch, The New York Times
New federal safety regulations that call for businesses with more than 100 workers to require vaccinations against the coronavirus will affirm mandates already in place at many companies and give cover to employers that had yet to decide. Read this article to learn more.
September 9, 2021
Unemployment benefits delayed? You can collect past the Labor Day cutoff
Source: Greg Iacurci, CNBC
Federal unemployment benefits lapsed on Labor Day. But there’s good news for Americans who’ve been waiting weeks or months for that aid to arrive: They can still collect back pay past the cutoff date. Read this article to learn more.
EEOC Brings Its First Covid-Telework Suit Under Disability Law
Source: Erin Mulvaney, Bloomberg Law
A health and safety manager in Georgia was fired after her employer denied her request to continue working from home because her heart condition heightened her Covid-19 risk, the EEOC alleged in its first disability accommodation lawsuit connected to the pandemic. Read this article to learn more.
What Employers Can Require With the Approved Covid-19 Vaccine
Source: Rebecca Ojserkis, Whittney Barth, and Kate Mueting, Bloomberg Law
Shortly after the FDA approved the Pfizer-BioNTech Covid-19 vaccine, many companies and law firms announced they would require returning employees to get vaccinated. Three Sanford Heisler Sharp LLP employee-side attorneys answer some commonly asked questions about the legality of—and limitations on—employer-mandated vaccinations. Read this article to learn more.
September 8, 2021
The hidden scourge of 'wage theft': When higher profits come out of workers' pockets
Source: Gretchen Morgenson and Lisa Cavazuti, NBC News
Wage theft can include paying less than legal minimum wage, not paying overtime, barring workers from taking meal breaks or requiring off-the-clock work. And it affects the most vulnerable workers, those who are desperate for pay and willing to take temporary jobs, who may be undocumented and who may be paid by subcontractors in cash. The emergency repair and cleanup business — which has proven an attractive investment target for private-equity firms in recent years as natural disasters have intensified — combines many of the factors that can expose workers to wage theft. Read this article and watch the corresponding video to learn more.
U.S. workplaces look to college fights as return to work 'turning point' looms
Source: Tom Hals, Reuters
A legal battle is brewing over remote work between administrators at U.S. colleges committed to in-person classes and some faculty with disabilities. Experts warn it is a precursor of what awaits employers that order staff back to the office amid the COVID-19 pandemic. Read this article to learn more.
New York Designates COVID-19 as a Highly Contagious Communicable Disease, Triggering NY HERO Act Obligations
Source: Lisa M. Griffith and Sanjay V. Nair, Littler
On September 6, 2021, the New York State commissioner of health designated COVID-19 as a highly contagious communicable disease, thereby triggering certain requirements under the New York Health and Essential Rights (HERO) Act. Previously, employers were required to adopt an airborne infectious disease exposure prevention plan by using the state’s model plan or drafting a plan that met the state’s minimum requirements, but employers were not obligated to implement the plan. With the commissioner of health’s formal designation of COVID-19 as a “highly contagious communicable disease” (a designation heralded by New York Governor Kathy Hochul), employers must now implement their New York HERO Act airborne infectious disease exposure prevention plan. This plan includes certain safety measures for the workplace, such as scheduled housekeeping and disinfection schedules, providing PPE to employees, and requiring health screenings for all employees. Read this article to learn more.
September 7, 2021
Georgia 2021: Unemployment Benefit Developments
Source: Emily S. Borna and Claire E. Fyvolent, JacksonLewis
Georgia employers may be experiencing some whiplash from the latest updates to the state’s unemployment and partial unemployment rules and regulations in the wake of the COVID-19 pandemic. Most recently, the Georgia Department of Labor (GDOL) amended its Separation Notice form. This is another update in a long line of notable changes to the state’s unemployment and partial unemployment rules and regulations in the post-pandemic world. Read this article to learn more.
California Privacy Rights Act for Employers: The Rights to Opt Out of Sales and Sharing, Restrict Sensitive Personal Information, and Non-Discrimination
Source: Zoe Argento
The California Privacy Rights Act (“CPRA”), which goes into effect on January 1, 2023, grants six new rights to California residents in their roles as employees, applicants, independent contractors, and other human resources members (“HR Individuals”).1 In our previous article in this series, we covered how the rights to know, correct, and delete personal information apply to employers.2 This article covers the three other rights. Two of these are the right to opt out of the sale or sharing of personal information, and the right to restrict the use and disclosure of sensitive personal information, by the employer and employer’s vendors. The last right is the right of HR Individuals not to be discriminated against for exercising these rights. Read this article to learn more.
Texas Appellate Court Clarifies Proof Required for Establishing Misconduct in Receipt of Unemployment Benefits Cases
Source: Lawrence D. Smith, Ogletree Deakins
Navigating the unemployment benefit administrative process under the Texas Unemployment Compensation Act can be difficult for employers. The act limits the type of conduct that may disqualify a claimant from receiving benefits, but it does provide for disqualification “if the individual was discharged for misconduct connected with the individual’s last work.” Employers’ notions of “misconduct” do not necessarily match the act’s definition of “misconduct.” A recent Texas appellate court decision, Texas Workforce Commission v. Dental Health for Arlington, Inc., provides guidance for employers regarding the factors required to establish misconduct that would disqualify a former employee from receiving unemployment benefits. Read this article to learn more.
September 6, 2021
OFCCP Reverses Course, Will Use EEO-1 Pay Data for Investigation, Enforcement
Source: Jim Paretti, David Goldstein, Michael Lotito, and Carroll Wright, Littler
On September 1, 2021, the Office of Federal Contract Compliance Programs (OFCCP), the Department of Labor sub-agency charged with enforcing affirmative action and non-discrimination requirements imposed on federal contractors by way of Executive Order 11246, announced that it was reversing its prior position regarding the use of EEO-1 compensation data collected by the Equal Employment Opportunity Commission for calendar years 2018 and 2019 (the so-called “Component 2”). Read this article to learn more.
New Missouri Law Requires Employers to Provide Leave to Victims of Domestic or Sexual Violence
Source: Karen R. Glickstein, Jessica L. Liss and Nina C. Sykora, JacksonLewis
Missouri employers with at least 20 employees will soon be obligated to provide leave to victims of domestic or sexual violence under the Victims Economic Safety and Security Act (VESSA), signed into law by Governor Mike Parson on August 28, 2021. VESSA also requires employers to provide employees notice of the new law no later than October 27, 2021. Read this article to learn more.
Maine’s New ‘Ban-the-Box’ Law: When Can Employers Inquire About Criminal Histories?
Source: Gustavo A. Suarez, Ogletree Deakins
In July 2021, Maine enacted a new “ban-the-box” law that limits employer inquiries into an applicant’s criminal history. Under the new law, entitled “An Act Relating to Fair Chance in Employment,” employers are prohibited from including criminal history inquiries in an application, but can engage in such inquiries during an interview or once the employer has determined that the applicant is otherwise qualified for the position. Read this article to learn more.
September 3, 2021
It’s Not Over ‘Til It’s Over: The COBRA Premium Subsidy Is Ending
Source: Stephanie A. Smithey, Ogletree Deakins
As we mentioned in our May 23, 2021, article, the American Rescue Plan Act of 2021 (ARPA) provides a 100 percent premium subsidy for continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) between April 1 and September 30, 2021, for certain assistance eligible individuals (AEIs). A part of an employer’s and plan administrator’s obligation is to notify AEIs that their subsidies are about to expire. Due to the timing requirements described below, plan administrators and their third party administrators must notify affected COBRA participants that their COBRA premium subsidies are ending soon. Read this article to learn more.
ICE: I-9 Flexibility to Continue Through 2021
Source: Amy L. Peck, Michael H. Neifach & Otieno B. Ombok, JacksonLewis
Once again, at the last moment, ICE has extended “flexibility” for I-9 employment verification. This time, for four more months, until the end of the year, December 31, 2021, due to continuing COVID-19 precautions. Read this article to learn more.
OSHA’s COVID-19 Emergency Temporary Standard to Expire December 2021
Source: Melanie L. Paul and Kristina T. Brooks, JacksonLewis
On August 31, 2021, the Occupational Safety and Health Administration (OSHA) tipped its hand that it will let the federal emergency temporary standard (ETS) expire in December 2021. Read this article to learn more.
September 2, 2021
OFCCP's Affirmative Action Program Verification Interface Approved
Source: Nancy Van Der Veer Holt and Jill M. Harrison, FordHarrison
The Office of Management and Budget (OMB) has approved the OFCCP’s Affirmative Action Program Verification Interface (AAP-VI). Although the AAP-VI portal on the OFCCP’s website is not currently live, there is a placeholder page for it at https://www.dol.gov/agencies/ofccp/aavi. The OFCCP has published a User Guide, available here, and an Admin Guide, available here, which provide more information about the AAP-VI. Currently, federal contractors submit their AAPs via mail or email during an audit, but when the AAP-VI becomes active it will be the primary source for entering, tracking, and submitting AAPs for review by the OFCCP. Contractors should note that the AAP-VI system will require them to respond annually in the System for Award Management (SAM) portal to a question seeking certification of their compliance with AAP requirements. Read this article to learn more.
Federal Judge Refuses to Dismiss Action Seeking to Classify Student-Athletes as Employees
Source: Gregg E. Clifton and John G. Long , JacksonLewis
A case that may signal the continued erosion of the amateur status of college student-athletes will continue as the action in Ralph “Trey” Johnson et al. v. NCAA has survived the defendants’ motion to dismiss the complaint. Read this article to learn more.
NLRB’s General Counsel Outlines Labor Law Priorities
Source: Stevens & Lee, Stevens & Lee
Jennifer Abruzzo, the General Counsel for the National Labor Relations Board (NLRB), recently issued a memorandum outlining the key labor issues that she wants to target during her term as General Counsel. Read this article to learn more.
September 1, 2021
New York HERO Act Requires Employers to Prepare Airborne Infectious Disease Policy
Source: Bran Noonan and Timothy M. Barbetta, FordHarrison
New York recently passed the New York Health and Essential Rights Act (“NY HERO Act”), which requires private employers to develop and implement a health and safety plan targeting the spread of future airborne infectious diseases. Read this article to learn more.
New York Expands Vaccination Mandate for Healthcare Workers
Source: Kelly C. Spina, Lisa M. Griffith, Jason Stanevich, and Terri M. Solomon, Littler
On August 26, 2021, the New York State Department of Health’s Public Health and Health Planning Council (PHHPC) approved emergency regulations that institute a broad vaccine mandate for New York healthcare facilities. These emergency regulations supersede and go beyond earlier vaccine directives aimed at healthcare workers. Read this article to learn more.
NLRB Mulls "Consequential Damages"
Source: Stevens & Lee, Stevens & Lee
The National Labor Relations Board (NLRB) issued a ruling on August 25, 2021, finding that a New Jersey nursing home violated federal labor law by unilaterally changing its employee health insurance plan. While the finding of a violation is rather commonplace, what is most interesting about the NLRB’s decision is that NLRB Chair Lauren McFerran stated in her written opinion that she believes the NLRB should consider adding “consequential damages” to the list of remedies it can order in a case. Even more interesting is that fellow Board Member John Ring, who has a more conservative political bend, joined McFerran’s call to consider such damages. Read this article to learn more.
August 31, 2021
CPRA Individual Rights
Source: Zoe Argento, Philip L. Gordon, and Kwabena A. Appenteng, Littler
Littler Shareholder and core Privacy Team member Zoe Argento discusses the extensive list of rights the CPRA confers on employees, independent contractors, and job applicants who reside in California. What is the scope of these rights, and what are employers’ obligations when responding to requests? Learn the answers to these questions and many more during this informative podcast.
Texas Expands Sexual Harassment Protections for Employees, Exposure for Employers and Individuals
Source: Kristin L. Bauer, Raha Assadi, and Julie A. Farmer, JacksonLewis
Beginning September 1, 2021, Texas employers of any size may be sued for sexual harassment in the workplace under legislative changes (SB 45) passed by the Texas legislature. SB 45 also expands liability to include individuals and business entities. Read this article to learn more.
California Face Covering and Vaccine Requirement Round-Up
Source: Jonathan A. Siegel, Chris D. Schlag, and Jianna Yun, JacksonLewis
In June, with much fanfare, California announced it was reopening and lifting many of the COVID-19 restrictions that had been in place through state executive and health department orders. However, as there have been surges of COVID-19 across the state, many state and local orders requiring COVID-19 controls have changed in response. Mask mandates and vaccination requirements for certain workers, in particular, have been on the rise. Employers should carefully review new state and local guidance as well as their procedures to account for the new developments. Read this article to learn more.
August 30, 2021
New Jersey Marijuana Law Employment Provisions Take Effect
Source: Lauren Marcus, Nancy Delogu and Dimitrios Markos, Littler
On August 19, 2021, the New Jersey Cannabis Regulatory Commission (the Commission) issued long-awaited initial rules implementing the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the Act), which Governor Murphy signed on February 22, 2021. The Act legalizes the use of recreational marijuana for adults over the age of 21 and creates many obstacles for employers seeking to maintain a drug-free workplace. The new rules deal almost exclusively with the provisions governing the recreational cannabis market, leaving many employer questions unanswered. Read this article to learn more.
Immigration and Labor Shortages
Source: Zain Abidi, JacksonLewis
The effects of the COVID-19 pandemic are far reaching. The labor shortage plaguing America has been one of the most publicized. Why is it so difficult for some employers to find employees? The 2020 United States Census offers possible reasons: an aging population, decreased fertility rates, and low rates of immigration. Read this article to learn more.
Don’t Forget About New Moms: Lactation Accommodations as Employees Return to Work
Source: Nicole M. Shaffer and Erin W. Kendrella , JacksonLewis
As working new moms return to the workplace, employers need to remember pre-pandemic workplace requirements, such as lactation accommodations. At the start of 2020, California’s enhanced lactation accommodation law went into effect. Read this article to learn more.
August 27, 2021
Oregon Issues New Rule Requiring Vaccinations of Healthcare Workers by Mid-October
Source: Sarah J. Ryan and Kevin M. Coles, JacksonLewis
Following on the heels of an executive order by Oregon’s governor requiring full vaccination for teachers, staff and volunteers in K12 schools, the Oregon Health Authority yesterday issued a new rule requiring that healthcare providers and healthcare staff be vaccinated against COVID-19 as of October 18, 2021. Healthcare providers and healthcare staff mean individuals in a healthcare setting who have the potential for direct or indirect exposure to patients, residents or infectious materials. Healthcare setting includes a healthcare facility, whether inpatient or outpatient, and assisted living facilities. Read this article to learn more.
Potential Bill Imposing Vaccination Or COVID Testing Requirements On Private Employers
Source: Alison L. Tsao and Rosario R. Stoliker, CDF Labor Law
With a growing number of employers becoming more comfortable with COVID-19 vaccine mandates, combined with this week’s FDA full approval of the Pfizer vaccine, the California Legislature is now discussing a potential bill that would impose a vaccine mandate or regular testing requirement on all private-sector employers. Although nothing has been drafted yet, the legislature is debating whether a mandate should be implemented. Read this article to learn more.
Sixth Circuit Limits Exercise of Personal Jurisdiction in FLSA Collective Actions
Source: Monica L. Lacks and Samuel H. Ottinger, Ogletree Deakins
On August 17, 2021, the Sixth Circuit Court of Appeals became the first federal appellate court to expressly rule on the application of the Supreme Court of the United States’ decision in Bristol-Myers Squibb Co. v. Superior Court of California to Fair Labor Standards Act (FLSA) collective actions. In Canaday v. The Anthem Companies, Inc., No. 20-5947, the Sixth Circuit held that a federal court cannot exercise personal jurisdiction over a corporate defendant with respect to the claims of nonresident opt-in plaintiffs who join an FLSA collective action when the claims are not connected to the defendant’s activities in the forum state. The decision is dispositive of the scope of FLSA collective actions in the Sixth Circuit, and it will likely have sweeping ramifications for FLSA collective actions nationwide. Read this article to learn more.
August 26, 2021
Illinois Amended Victim’s Economic Security and Safety Act for Greater Employee Protections
Source: Jody Kahn Mason, JacksonLewis
The Illinois Victim’s Economic Security and Safety Act (VESSA) has been amended to expand the list of reasons for which job-protected leave is available, among other provisions. The amendments went into effect on August 20, 2021. Read this article to learn more.
Workplace Protests and Mandatory Vaccinations
Source: William H. Floyd III, Nexsen Pruet
Employers remain entangled with COVID-19 and vaccinations, including internal and external protests. COVID-19 cases continue climbing, fueled by the Delta variant. Vaccinations are lagging behind, but may increase now that the FDA has officially approved a vaccine. As more employers consider shifting from encouraging to mandating vaccinations, there is a risk of internal protests by employees as well as external protests involving the public. Read this article to learn more.
Paid Time Off For Vaccinations – A Reason for an Employer Tax Credit
Source: Michael T. Brittingham and Jim P. Rourke, Nexsen Pruet
On July 29, 2021, the IRS updated its frequently asked questions (FAQs) regarding the paid sick and family leave tax credits under the American Rescue Plan Act of 2021 (ARPA). The new guidance clarifies that eligible employers can claim ARPA tax credits for providing paid leave to employees to either (1) accompany a family or household member or certain other individuals to obtain the COVID vaccine or (2) care those individuals while they are recovering from the side effects related to the COVID vaccine. Eligible employers are private employers with fewer than 500 employees and certain governmental employers without regard to the number of employees. Prior to the issuance of this guidance, it was unclear whether the tax credit could be extended to vaccine-related leave. Read this article to learn more.
August 24, 2021
White House Announces that Nursing Homes Risk Losing Medicare and Medicaid Funding Unless They Mandate Staff Vaccination
Source: Jeremy Wood and David Gartenberg, Littler
On August 18, 2021, President Biden announced that nursing home staff must be vaccinated against COVID-19 or the facilities employing them could lose federal Medicare and Medicaid funding. These new requirements are similar to those of many states and localities across the nation that have begun to require vaccination for healthcare workers. These new rules on nursing homes will be issued by the U.S. Department of Health & Human Services (HHS), which President Biden directed to develop emergency regulations. Read this article to learn more.
Manufacturing During a Labor Shortage: How Manufacturers Have Been Innovating on Ways to Attract New Employees
Source: Bernard J. Bobber, Ogletree Deakins
For the past several months, the media have been reporting on the general labor shortage in the United States. Most manufacturers have been understaffed in their factories for even longer than this news cycle, but current events have transformed what before 2020 was merely a typical challenge for manufacturers seeking to hire enough people, into a dilemma that for many is mission critical. Read this article to learn more.
Top Five Labor Law Developments for July 2021
Source: Jonathan J. Spitz, Richard F. Vitarelli, Richard I. Greenberg, Chad P. Richter, Thomas V. Walsh, Megann K. McManus and Christopher M. Repole, Jackson Lewis
The Senate confirmed Jennifer Abruzzo to the National Labor Relations Board (NLRB) General Counsel post and Gwynne Wilcox and David Prouty as NLRB members. Read this article to learn more.
August 23, 2021
In the Crosshairs: U.S. Congress Again Takes Aim at Arbitration Agreements in Employment Context
Source: John Andrew Schaffer and Marla N. Presley, JacksonLewis
In the U.S. Congress’ latest proposal to strike against arbitration, Judiciary Committee Chairman Jerrold Nadler and Labor Committee Chairman Robert C. “Bobby” Scott introduced the Restoring Justice for Workers Act. The proposed legislation seeks to put an end to pre-dispute arbitration clauses in the employment context. Significantly, a similar bill was introduced in October 2018 but did not receive a U.S. Senate vote and died in session. The 2021 version of the bill will likely suffer a similar fate. Although frequently under attack, pre-dispute arbitration agreements remain an important and effective tool for employment dispute resolution. Read this article to learn more.
Inclusion, Equity, & Diversity Update – SEC Approves Nasdaq Rule on Board Diversity
Source: Philip M. Berkowitz, Corinn Jackson, and Britney Noelle Torres, Littler
As companies focus on workforce inclusion, equity, and diversity (IE&D), they are under increasing pressure to assure that the membership of their boards reflects these values. The Securities and Exchange Commission (SEC) recently approved a rule proposed by Nasdaq that requires companies listed on its exchange to meet certain minimum diversity targets on their boards or explain in writing why they are not doing so. This “comply or explain” approach demands of corporations additional accountability for IE&D efforts, requiring them to navigate diversity and anti-discrimination considerations thoughtfully. Read this article to learn more.
The Unlikely Marriage of Unions and Tech Employees
Source: Scott P. Jang and Laura A. Pierson-Scheinberg, JacksonLewis
Unions are successfully targeting workers in the technology industry, even as employees transition to a more remote workplace during the pandemic. Learn more by listening to this podcast.
August 21, 2021
"Updated OSHA Guidance on COVID-19," Jones Walker LLP Labor & Employment Client Alert
Source: Jane Henican Heidingsfelder, Jones Walker
On Friday, August 13, the Occupational Safety and Health Administration (OSHA) updated its guidance for general industry in order to help protect workers from COVID-19. OSHA issued this new guidance so it would be consistent with the latest science and data and Centers for Disease Control and Prevention (CDC) guidance.
August 20, 2021
The Cuomo Report: An Employment Lawyer’s Takeaways and Tips on Conducting Workplace Investigations
Source: Michael K. Clarkson, Ogletree Deakins
he August 3, 2021, report regarding the sexual harassment allegations brought against former New York governor Andrew Cuomo, “Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo” resulted in his resignation on August 10, 2021, and renewed attention to the #MeToo movement. As a political wonk and an employment lawyer, these events have been of great interest. Also noteworthy, are the lessons one can glean from the report in how to conduct an effective workplace investigation.
UPDATE: EEO-1 Reporting Deadline Extended Until October 25, 2021
Source: Laura A. Mitchell & Christopher T. Patrick, JacksonLewis
The EEOC has announced on its EEO-1 Data Collection website that it has, again, extended the deadline for filing EEO-1 Reports this year—this time to October 25. Employers still rushing to finalize and upload their 2019 and 2020 EEO-1 reports by the prior August 23 deadline will certainly welcome this extra breathing room.
August 19, 2021
Leaders, Don’t Be Afraid to Talk About Your Fears and Anxieties
Source: Lauren C. Howe, Jochen I. Menges, and John Monks, Harvard Business Review
Now more than ever, leaders are struggling with anxieties, fears, and all sorts of difficult emotions. What’s the best way to handle these internal struggles at work? This article discusses strategies to help leaders get more comfortable sharing The authors analyzed journal entries from thirty global leaders in May and June of 2020 and identified three distinct leadership styles: Heroes, who negative emotions in a helpful and productive way.
How to Redesign Your Office for Hybrid Work
Source: Rebecca Hinds, Inc.
Many employers are in the throes of planning their employees' return to the office. One top-of-mind consideration is how to redesign the office to accommodate new hybrid work models. According to research by Microsoft, 66 percent of employers are redesigning their offices to meet the new demands of hybrid work.
As a leader, the decisions you make about redesigning your office space matter. As you contemplate redesigning your office space for a hybrid workforce, this article outlines three strategies to set your employees up for success.
OSHA Publishes Updated COVID-19 Guidance in Light of Rising Delta Variant Cases
Source: Alka Ramchandani-Raj and Karen Charlson, Littler
On August 13, 2021, OSHA issued updated guidance to better align with the Centers for Disease Control and Prevention’s July 27, 2021 recommendations, given the rising cases of the COVID-19 Delta variant. The guidance’s purpose is to summarize the CDC’s “substantial or high transmission” guidance and assist employers in recognizing and abating COVID-19 hazards in the workplace. In the guidance’s preamble, OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes to get vaccinated and recover from side effects, and to consider working with local public health authorities to provide vaccinations in the workplace. OSHA also suggests that employers “consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”
August 18, 2021
Apple To Increase Covid Testing For Workers Amid Surge
Source: Kimberly Speakman, Forbes
Apple is increasing coronavirus testing for corporate and retail staff, the company said in a memo obtained by Bloomberg, and it will halt plans to bring back in-person classes at U.S. stores as coronavirus cases continue to surge due to the highly infectious delta variant.
How to Work with Someone Who Creates Unnecessary Conflict
Source: Amanda Ripley, Harvard Business Review
Conflict at work comes in many forms. Good conflict, the kind that is healthy, pushes us to be better as people and communities. Most organizations need more good conflict, not less. But sometimes, conflict can become malignant. It hijacks precious time, trust, and energy, turning allies against each other and distorting reality. This is what’s known as “high conflict,” the kind that takes on a life of its own, and eventually, leaves almost everyone worse off.
OSHA Updates Non-Healthcare Employer Guidance on COVID-19
Source: Catherine A. Cano, JacksonLewis
While embracing the Centers for Disease Control and Prevention’s updated recommendations for fully vaccinated people in areas of substantial or high transmission of COVID-19, OSHA also echoes the protocol President Joe Biden adopted for many federal employees and on-site employees of federal contractors and suggests that employers may want to “consider” adopting a policy requiring employees to receive the COVID-19 vaccination or submit to regular COVID-19 testing.
August 17, 2021
Unconscious Bias Training That Works
Source: Gino and Katherine Coffman, Harvard Business Review
To become more diverse, equitable, and inclusive, many companies have turned to unconscious bias (UB) training. By raising awareness of the mental shortcuts that lead to snap judgments—often based on race and gender—about people’s talents or character, it strives to make hiring and promotion fairer and improve interactions with customers and among colleagues. But most UB training is ineffective, research shows. The problem is, increasing awareness is not enough—and can even backfire—because sending the message that bias is involuntary and widespread may make it seem unavoidable.
UB training that gets results, in contrast, teaches attendees to manage their biases, practice new behaviors, and track their progress. It gives them information that contradicts stereotypes and allows them to connect with colleagues whose experiences are different from theirs. And it’s not a onetime session; it entails a longer journey and structural organizational changes.
Workplace Culture Doesn’t Align With Your Authentic Self? 14 Tips
Source: Forbes Expert Panel, Forbes
In a professional setting, being your most authentic self can help you forge open and honest working relationships, as demonstrating authenticity and transparency helps one come across as genuine and trustworthy. However, there are times when you may feel compelled to conform to cultural or organizational norms in your workplace that don’t align with your own personal values or morals.
Mental Health Is The Next Big Workplace Issue
Source: Erica Pandey, Axios
Employees' mental health is quickly becoming a top concern for companies as they try to hold on to workers through the pandemic.
Why it matters: The firms that confront mental health are poised to win the war for talent.
"These days there are worker shortages everywhere," says Chris Swift, CEO of The Hartford, a financial services and insurance company. Mental health is a massive contributor to that, he says.
What's happening: The pandemic has dragged on, and people are dealing with even more loss and isolation — at the same time that America's opioid crisis has gotten worse. Burnout and addiction are seeping into the workplace.
August 16, 2021
Encouraging Employees to Get COVID-19 Vaccinations: Are Healthcare Surcharges the Answer?
Source: Katherine Dudley Helms, Ogletree Deakins
The number of U.S. workers choosing to be vaccinated plateaued earlier this summer. As a result, employers, many of which hoped to return employees to the workplace in early fall, were left to debate whether to require employees to get vaccinated or to merely “strongly encourage” vaccination. Although many mandatory vaccination policies may pass legal scrutiny, they may nonetheless raise cultural tensions and raise the risk of losing employees in an already tight labor market.
For these and other reasons, many employers have delayed implementation of mandatory vaccination policies and instead have attempted to incentivize their employees to get vaccinated. For example, employers have offered paid time off, gift cards, cash, and other financial incentives to motivate their employees to get more fully vaccinated. The results of these efforts appeared to have been effective initially, but vaccination rates have stalled as of late.
Ninth Circuit Holds TCPA Prohibits Pre-Recorded Recruiting Calls to Cell Phones Without Prior Express Consent
Source: Rod M. Fliegel, Littler
Staffing companies and employers using all tools at their disposal to recruit workers may face increased risk following the Ninth Circuit’s recent opinion in Loyhayem v. Fraser Financial. In Loyhayem, the court found that calling potential workers’ cell phones with pre-recorded voice messages could violate the Telephone Consumer Protection Act (TCPA), unless the workers had previously consented to the calls. In light of Loyhayem, “cold-calling” prospects using this method may subject companies to class actions carrying risk of substantial statutory damages.
COVID-19 Variants and Key Government Actions Accelerate Employer Vaccination Policy Implementation
Source: James M. Paul, Ogletree Deakins
With transmission of the Delta variant on the rise, many employers are revisiting plans to implement COVID-19 vaccination policies. Employers may encourage and mandate vaccination against COVID-19, subject to exceptions for covered disabilities under the Americans with Disabilities Act and sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. Guidance that the U.S. Equal Employment Opportunity Commission (EEOC) recently issued has been consistent with this position and federal courts have recently affirmed the same.
August 13, 2021
Can an Employer Discipline an Employee for Excessive FMLA-Related Absences Before Requesting Recertification? The Simple Answer is NO.
Source: Jeff Nowak, Littler
Matt was a correction officer for the Camden County Board of Chosen Freeholders. He served as one of the caretakers for his mom. Matt sought FMLA leave, and he obtained medical certification from his mom’s doctor supporting his absence once per month for up to five days. Matt ended up exceeding the frequency by two episodes. In response, his supervisor recommended that Matt be disciplined for excessive absences, which later led to his suspension. Matt sued his employer for FMLA violations.
COVID-19, Workplace Safety and Health, and Employee Claims of Retaliation: What’s an Employer to Do?
Source: Dee Anna D. Hays, Ogletree Deakins
As of August 8, 2021, the Occupational Safety and Health Administration (OSHA) has received more than 5,558 whistleblower complaints related to COVID-19 since the start of the pandemic (and State Plans have received an additional 2,118 complaints). Notably, President Joe Biden has made it clear that OSHA enforcement focused on “violations that put the largest number of workers at serious risk [of COVID-19] or are contrary to anti-retaliation principles” is a priority of his administration.
The Emerging Trend in State Pay Transparency Laws
Source: Chris Taylor, F. Christopher Chrisbens and Christopher T. Patrick
The push for pay equity has moved beyond prohibiting pay discrimination and into requiring employers encourage pay transparency for applicants and employees.
At the federal level, the National Labor Relations Act can protect discussions involving compensation as concerted activity. For federal contractors, OFCCP prohibits policies that discourage pay transparency. Many states have followed suit — and done even more.
August 12, 2021
Preparing for Your First Day Back at the Office
Source: Elizabeth Grace Saunders, Harvard Business Review
Laying the Groundwork for a Successful Hybrid Workforce
Source: Faiza Hughell, Houston Chronicle
To create a truly unified global team that unlocks the power of remote and on-site work, both technology and corporate culture must evolve to ensure equal engagement and opportunity for employees — no matter where they are.
Mandatory Vaccines or Mandatory Testing? A “Soft Approach”
Source: Philip Berkowitz and Devjani Mishra , Littler
In its recently amended Technical Assistance Guidance (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws), the Equal Employment Opportunity Commission (EEOC) made clear that an employer may require COVID-19 vaccines for employees and exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace, because their presence would pose a direct threat to the health or safety of others.
August 9, 2021
Louisiana Enacts Law Impacting Employer Consideration of Applicant Criminal Histories
Source: Andrew P. Burnside, Ogletree Deakins
On June 9, 2021, the Louisiana State Legislature passed House Bill (HB) No. 707, a measure that prohibits discrimination in employment based on criminal history records and that provides criteria for employers making hiring decisions in conjunction with criminal history records.
Mandatory Employee Vaccines – Coming to A State Near You?
Source: Littler Mendelson , Littler
In recent weeks, several states and municipalities have announced that, in essence, they are requiring certain categories of workers to be vaccinated.
Withdrawal Liability – Real Property Presumed a Trade or Business
Source: David M. Pixley , JacksonLewis
An employer’s permanent cessation of contributions to a multiemployer pension plan can trigger withdrawal liability. This liability may reach affiliated trades or businesses with sufficient common ownership to be under “common control” with the employer.
IRS Updates FAQs to Include Leave to Accompany Someone to a COVID-19 Vaccination or to Care for Someone for COVID-19 Vaccination-Related Illnesses
Source: Tania J. Mistretta, JacksonLewis
The IRS recently updated its FAQs on the Paid Sick and Paid Family Leave credits to now include within the definition of qualified sick and family leave wages, wages paid for leave taken by employees to accompany individuals to COVID-19 vaccination appointments, and to care for individuals recovering from COVID-19 vaccine-related illnesses.
August 6, 2021
Denver Mandates That All Public-Sector and Certain Private-Sector Employees Be Vaccinated for COVID-19
Source: David Gartenberg , Littler
On August 2, 2021, Denver, Colorado Mayor Michael B. Hancock announced that all city employees, as well as private-sector workers in certain “high-risk” settings, must be fully vaccinated against COVID-19 by September 30, 2021.
Are You Ready? New Cal/OSHA PPE Stockpiling Requirement Is Now in Effect
Source: Ursula L. Clemons, Ogletree Deakins
On September 29, 2020, California Governor Gavin Newsom signed into law Assembly Bill (AB) 2537, one of the latest in a series of legislative enactments designed to protect employees from COVID-19 exposure in the workplace.
Top Takeaways for Employers from the Andrew Cuomo Investigation Report
Source: Daphne P. Bishop, CDF Labor Law
There is much that private employers and workplace investigators can learn from the Cuomo investigation report.
August 5, 2021
Yes, employers can require workers get vaccinated—and it might help them attract top talent
Source: Abigail Johnson Hess, CNBC
Government organizations such as the Equal Employment Opportunity Commission have long made it clear that employers can require vaccination.
Is Every Indoor Workplace a ‘Public Indoor Setting’ Under the CDC’s New Masking Guideline or Are Employers Jumping to Conclusions?
Source: Eric E. Hobbs, Ogletree Deakins
Many employers decided to amend their COVID-19 policies to allow vaccinated workers to go without masks in the workplace.
DOJ Releases Memorandum Supporting Employers’ Right to Mandate Vaccines Approved by the FDA for Emergency Use
Source: Michael Oliver Eckard, Ogletree Deakins
On July 6, 2021, the Office of Legal Counsel of the U.S. Department of Justice (DOJ) issued a memorandum opining that private businesses and public entities are not prohibited from mandating COVID-19 vaccines that have only received approval for use under an EUA
Labor Department Formally Withdraws Trump-Era Joint Employer Final Rule
Source: Justin R. Barnes, JacksonLewis
In an action anticipated since it issued its Notice of Proposed Rulemaking in March, the U.S. Department of Labor (DOL) officially has withdrawn the Joint Employer Final Rule published during the previous administration.
August 4, 2021
California Mid-Year Legislative Update: Family Leave, Sick Pay, and Work Quotas
Source: Michael J. Nader, Ogletree Deakins
The pandemic continues to loom large over the California legislature this year, as indicated by the bills advancing through the legislative process.
California Supreme Court Requires Employers to Pay Meal and Rest Period Premiums at the Regular Rate of Pay
Source: David L. Cheng, FordHarrison
On July 15, 2021, the California Supreme Court held in Jessica Ferra v. Loews Hollywood Hotel, LLC that Labor Code Section 226.7 requires employers to pay meal and rest period premiums for each workday in which they were not provided a meal or rest period at a rate equivalent to the employee’s regular rate of pay.
U.S. DOL Rescinds Trump-Era Rule Regarding Joint-Employer Status Under the FLSA
Source: Jack Schadel, FordHarrison
On July 29, 2021, the United States Department of Labor announced that it would rescind the Trump-era rule (the “Joint Employer Rule”) pertaining to the determination of joint employers for purposes of assigning liability for wage and hour violations under the Fair Labor Standards Act .
Transportation Industry Alert - Labor Law Changes from the Biden Administration on the Horizon
Source: Jacquelyn L. Thompson, FordHarrison
In September 2020, then-presidential candidate Joe Biden promised organized labor that, if elected, he would be the “strongest labor president you’ve ever had.” It, therefore, comes as no surprise that he has already implemented significant labor-related changes.
August 3, 2021
Registered and Authorized Medical Cannabis Patients in Puerto Rico Gain Employment Protections
Source: Juan Felipe Santos, JacksonLewis
Registered and authorized patients of medical cannabis in Puerto Rico are considered a protected category for purposes of all employment laws under an amendment to the “Act to Manage the Study, Development and Investigation of Cannabis for Innovation, Applicable Norms and Limitations.”
Mask Up, Mask Down: In Reversal, Health Officials Recommend Masks for Fully-Vaccinated Individuals. What is the Potential Impact on Employer Immunity?
Source: Brittany N. Clark, Nexsen Pruet
On July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance on masking and other health measures in light of the rise in coronavirus cases fueled by the delta variant of COVID-19.
Lessons from Million Dollar OSHA Fine of Georgia Poultry Processor and Contractors
Source: William H. Floyd III, Nexsen Pruet
Earlier this year, six employees died during a tragic accident at a poultry processor in Georgia. A leak of liquid nitrogen within the plant caused the accident.
Forging Commitments: How Manufacturers Can Promote Retention After Investing in Employee Training
Source: James M. Stone, JacksonLewis
A pressing issue for many manufacturers is how to attract and retain skilled workers after investing the time and money to train them.
August 2, 2021
West Hollywood, California Adopts Comprehensive Hotel Worker Ordinance with Right to Recall
Source: Bruce Sarchet, Littler
Cities have started to implement workplace regulations, an area previously reserved to federal and state governments. The hotel industry, which often is one of the primary drivers of a local economy, has been a particular focus.
Oregon Issues Temporary Rule Expanding the Scope of its Paid Sick Leave Law During a Public Health Emergency
Source: Megan Crowhurst, Littler
On July 22, 2021, the Oregon Bureau of Labor and Industries (BOLI) issued a temporary rule that expands the reasons employees can use leave under Oregon’s paid sick and safe leave law during a public health emergency.
Where the Mining Industry Stands with MSHA—and What’s Ahead
Source: William K. Doran, Ogletree Deakins
It has been more than five months since President Biden took office, and while there is still a lot to learn about the prospective enforcement focus of the Mine Safety and Health Administration (MSHA), some priorities have become clearer.
Department of Labor Withdraws Joint Employer Regulations
Source: Jim Paretti, Littler
On July 29, 2021, the U.S. Department of Labor announced it was formally rescinding regulations issued by the prior administration defining “joint employer” status under the Fair Labor Standards Act (FLSA).
Breaking News: On-Site Federal Contractor Employees Not Fully Vaccinated May be Subject to Mask and COVID Screening Requirements
Source: Laura A. Mitchell, JacksonLewis
In an effort to slow the spread of the Delta variant of the Covid-19 virus, President Biden announced that on-site federal contractor employees will be asked about their vaccination status and if not fully vaccinated, be required to wear a mask and undergo COVID testing.
July 30, 2021
Crothall Healthcare to Pay $37,500 to Settle Disability Discrimination Lawsuit
Source: EEOC, EEOC
Crothall Healthcare, Inc., a medical laundry and linen service, will pay $37,500 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission.
Three Counties Issue Mask Mandates That Apply to California Employers – More to Come!!!
Source: Mark S. Spring, CDF Labor Law
With the rise of the Delta variant, three California counties have issued mask mandates for the fully vaccinated and the unvaccinated. These new mandates apply to employers in those counties.
As Facial Recognition Technology Surges, Organizations Face Privacy and Cybersecurity Concerns, and Fraud
Source: Joseph J. Lazzarotti, JacksonLewis
Facial recognition technology has become increasingly popular in recent years in the employment and consumer space, and in particular during the COVID-19 pandemic.
To Mandate or Not To Mandate: Department of Justice Weighs In on Vaccination Mandates
Source: Patricia Anderson Pryor, JacksonLewis
Can employers mandate vaccines? The Department of Justice’s Office of Legal Counsel (OLC) says they can, but before employers do, they should consider the many legal and practical risks.
July 29, 2021
New York Will Require State Workers To Be Vaccinated Or Undergo Weekly Testing
Source: NPR, NPR
New York will require all state employees to get vaccinated against the coronavirus by Labor Day or undergo weekly tests for COVID-19, Gov. Andrew Cuomo said Wednesday.
NLRB Refuses to Deflate ‘Scabby the Rat’
Source: Kevin M. Sibbernsen, JacksonLewis
A union’s use of Scabby the Rat (an inflatable rat “approximately 12 feet in height with red eyes, fangs, and claws”) and inflammatory banners targeting a neutral employer, without more, does not violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has ruled.
Mask On? Mask Off? Mask On? What Employers Need to Know About The New CDC Guidance
Source: Katharine C. Weber, JacksonLewis
The CDC is now recommending that everyone – including fully vaccinated individuals – wear masks in indoor public settings in all areas with substantial and high transmission of the COVID-19 virus and get tested following exposure to someone with suspected or confirmed COVID-19.
