Labor & Employment

As employers faced with a representation petition filed during the COVID-19 pandemic can attest, Regional Directors of the National Labor Relations Board have been incredibly reticent to hold in-person elections.  Indeed, since April 1st, when the Board resumed processing representation petitions, approximately ninety percent (90%) of elections have been held by mail rather than in-person.  This necessary paradigm shift flew in the face of the Board’s long-standing general policy to hold manual-ballot, in-person elections.  However, on November 9, 2020, the Board finally provided Regional Directors and key stakeholders, such as employers, employees and unions with important guidance concerning when, and…
On November 2, 2020, the Eastern District of New York issued a notable decision regarding an employer’s compliance with federal and state public health law during the COVID-19 pandemic. This is not the only case of its kind during the pandemic, and we certainly don’t expect that it will be the last as employers should be prepared to defend claims that they did not follow the governing health protocols or otherwise ensure the health and safety of their employees. Relevant Background In Palmer, et al. v. Amazon.Com, Inc., et al., case number 20-cv-2468 (E.D.N.Y. 2020), employees working at an…
As jurisdictions continue to respond to COVID-19 with new rules, regulations, orders and guidance, employers must ensure that they adhere to these requirements as they manage business operations. To assist multi-state employers as they navigate these developments, we have created ProTrack COVID-19, a state and local tracker tool. Our proprietary tracker allows employers to search the legal requirements in the jurisdictions where they conduct business, and provides realtime updates. Key features Access to our database of COVID-19 employment and privacy-related state and local rules, regulations, orders and guidance – updated in real-time. Interactive map feature to drill down to state-specific…
New York State has released an informal guidance page, including frequently asked questions, regarding the newly enacted statewide paid sick leave law, which took effect on September 30, 2020. As we have previously reported, the law requires employers with New York employees to provide a certain amount of paid or unpaid sick leave to be used for certain medical and employee safety-related reasons. Specifically, under the new law: employers with 4 or fewer employees and a net income of less than $1 million in the prior tax year must provide employees with up to 40 hours of…
On October 28, New Jersey Governor Phil Murphy issued an Executive Order addressing health and safety requirements for New Jersey employers that require or permit their workers to be physically present in the office. The Order supplements other guidance that was previously issued for certain industries – including retail, gyms and fitness centers, and child care. Below is a brief summary of what New Jersey employers need to know about the Order. Minimum Health and Safety Protocols. Beginning on Thursday, November 5, all employers that require or permit their workers to be physically present in the office to perform work…
State-by-State Real Time Updates on Employment and Privacy-Related Rules, Regulations, Orders and Guidance As jurisdictions continue to respond to COVID-19 with new rules, regulations, orders and guidance, employers must ensure that they adhere to these requirements as they manage business operations. To assist multi-state employers as they navigate these developments, we have created ProTrack COVID-19, a state and local tracker tool. Our proprietary tracker allows employers to search the legal requirements in the jurisdictions where they conduct business, and provides realtime updates. Key features Access to our database of COVID-19 employment and privacy-related state and local rules, regulations, orders and…
In this episode of The Proskauer Brief, partner Harris Mufson and associate Phil Lebel discuss recent legal developments in California, specifically a new supplemental paid sick leave law and coronavirus (COVID-19) exposure notification requirements. Tune in as we discuss steps employers can take to ensure compliance with these new requirements. Listen to the podcast.  …
Amidst the COVID-19 pandemic and the flurry of associated leave issues, Gov. Newsom recently signed Senate Bill 1383 (“SB 1383”) into law, which provides up to 12 weeks of job-protected leave under the California Family Rights Act (“CFRA”) to employers with as few as five employees.  Beginning on January 1, 2021, when SB 1383 takes effect, employees of most small employers will be eligible for leaves of absence: (1) for the birth of a child; (2) for adoption or foster care placement of a child; (3) to care for a seriously ill family member; and/or (4) to care for the…
Employers across the country are restructuring business operations to mitigate the continuing impact of the Covid-19 pandemic. Restructuring business operations—whether by complete shutdown, sale, or bankruptcy—implicates several employer-sponsored health and welfare plan issues. This article provides a high-level overview of common health and welfare plan scenarios that plan sponsors may encounter during a restructuring. Managing Health & Welfare Plans During Restructuring
In late September, the Pension Benefit Guaranty Corporation (the “PBGC”) published Press Release 20-04 and issued Technical Update 20-2 providing flexibility in the calculation of variable-rate premiums for plan sponsors who take advantage of extended pension contribution deadlines for 2020—even in certain circumstances where the plan sponsor has already completed its PBGC premium filing. The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) allows plan sponsors to delay until January 1, 2021 the payment of minimum required contributions to tax-qualified defined benefit pension plans that would otherwise be due in 2020.  The IRS subsequently clarified in Notice 2020-61
Late last week, Gov. Newsom signed AB 685 into law which, among other things, adds section 6409.6 (“Section 6409.6”) to the Labor Code.  The new statute, which takes effect January 1, 2021, requires that employers notify employees and, in some instances, public health officials about COVID-19 exposures at work. Specifically, Section 6409.6 requires that employers take all of the following steps within one business day of notice of a potential exposure in the workplace: Provide written notice to all employees (and employers of subcontracted employees), who were on the premises at the same “worksite” as the infected or potentially infected…
Quick Hit:  The temporary expansion of the DC Family and Medical Leave Act to provide D.C. employees up to 16 weeks of unpaid, job-protected “COVID-19 leave” has been extended through October 9, 2020.   The D.C. Office of Human Rights has published an updated notice reflecting the extended effective date, which employers “must post and maintain . . . in a conspicuous place and transmit it to employees working remotely.”  Note that should the Mayor extend the declared COVID-19 public health emergency beyond October 9, 2020, this leave expansion will likely be extended again. More Detail: As we previously reported,…
On September 15, 2020, the National Labor Relations Board (the “NLRB” or “Board”) Division of Advice (“Advice”), published four Advice Memoranda addressing an array of issues ranging from COVID-19-related unilateral actions to non-work political advocacy and the legality of confidentiality provisions in separation agreements.  The Memoranda were drafted by Advice last month, and join the panoply of other recent guidance released by Advice on July 15 and August 13. Advice Memoranda are only binding on the parties subject to the instant dispute, but they are publicly released to give the public an idea of how the agency might handle…
On September 11, 2020 the U.S. Department of Labor (“DOL”) issued revised Families First Coronavirus Response Act (“FFCRA”) regulations in response to a federal court decision striking down certain portions of its previous regulations. The FFCRA is a federal law that requires certain employers to provide: (1) two weeks of paid sick leave to employees who are unable to work for any of six qualifying reasons related to COVID-19, and (2) up to twelve weeks of expanded family and medical leave – at least ten of which must be paid – to employees who need to care for a child…
On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which is intended to fill gaps left by the Families First Coronavirus Response Act (“FFCRA”). The new law requires that private employers with 500 or more employees in the United States provide eligible (non-food sector) employees with up to 80 hours of supplemental paid COVID-19 sick leave (“Supplemental COVID-19 Leave”). AB 1867 also codifies the food sector-specific supplemental paid leave provided under Executive Order N-51-20, and extends paid leave benefits to health care and emergency responders who were not provided with paid sick leave under the FFCRA. For…
The National Labor Relations Board recently cancelled a union election at a Las Vegas casino that suspended its operations and laid off employees amid the COVID-19 pandemic. In NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel and Local Joint Executive Board of Las Vegas, 370 NLRB No. 11 (2020), the Board found that the Regional Director erred in scheduling the election given that the laid-off employees had no “reasonable expectation of recall” and thus were ineligible to vote. Texas Station Casino and the COVID-19 Pandemic On March 18, 2020, the Governor of Nevada issued an emergency declaration…