Labor & Employment

After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020.  However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting doubt on when, if at all, the new rules will apply.  Details of the planned changes are outlined in our reporting on the NLRB’s initial announcement of proposed amendments, as well as updated rules regarding election rules and procedures here and here. On…
As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases. The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules from such decisions due to the varied workplaces – even more so now during the COVID-19 pandemic, where workplaces are transforming and new safety guidelines are issued. What may present a legitimate workplace safety concern in one setting, may be deemed pretext in another.…
The proposed Chicago COVID-19 Anti-Retaliation Ordinance (the “Ordinance”) that was the subject of our post on April 27, 2020, has now become law. The Ordinance prohibits Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19.  This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic. *      *      * Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management…
A Reuters article published on May 26, 2020 reports that the SEC has experienced an uptick in complaints amid the COVID-19 pandemic.  According to the article, the SEC received about 4,000 complaints from mid-March through mid-May – a 35% increase from the previous year.  With an abundance of tips at its disposal, the SEC is eager to investigate and prosecute COVID-19 related misconduct. The article discusses how the COVID-19 pandemic has incited a wave of misconduct, ranging from loan and healthcare fraud to the production of counterfeit and substandard medical supplies, across a wide range of industries.  The article quotes…
The CDC has issued interim guidance on antibody testing for the SARS-CoV-2 coronavirus that causes COVID-19. While the guidance is primarily directed at clinical and public health entities, it does contain some information relevant to employers, educational institutions, and other entities who may be considering whether and to what extent such antibody testing may play a role in its reopening plans. Specifically, the guidance states that, although the presence of anti-SARS-CoV-2 antibodies when detected using a reliable antibody testing method “likely indicates at least some degree of immunity, until the durability and duration of immunity is established, it cannot be…
The Illinois House of Representatives recently introduced House Bill 5769, which would create the Illinois Personal Protective Equipment Responsibility Act (the “Act”).  The Act would require “essential employers” to provide personal protective equipment (“PPE”) to both employees and independent contractors.  The Act defines an “essential employer” as an employer engaged in an “essential business” as defined by a disaster proclamation issued pursuant to Illinois’s Emergency Management Act or any executive order issued in furtherance thereof. At a minimum, essential employers would be required to provide face coverings and require that such coverings be worn “when maintaining a 6-foot social…
During the early days of the coronavirus pandemic, the Maryland legislature passed over 600 pieces of legislation, many of which relate to employment issues.  Several of these bills, including ones that prohibit use of facial recognition technology, wage history inquires and hairstyle discrimination, and revise the state’s mini-WARN act, recently became law when the deadline for their enactment passed without Governor Larry Hogan’s veto.  These laws, which are detailed below, will take effect on October 1, 2020. Prohibition Against Use of Facial Recognition Technology Quick Hit: Maryland now prohibits using facial recognition technology during the job interview process, absent an…
As we discussed here, the National Labor Relations Board decided early this month that it would temporarily suspend the remedial notice-posting and emailing requirement at facilities shut down due to the COVID-19 pandemic until after reopening and a return of a “substantial complement” of employees.  See Danbury Ambulance Service, Inc., 369 NLRB 68 (2020). The Danbury Ambulance ruling addressed the posting obligation following the issuance of a Board decision in a contested unfair labor practice case. Normally, employers are required to post the Notice to Employees at the workplace within 14 days after issuance of a decision.  The…
On May 19, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued a memorandum updating previous guidance regarding employers’ obligation to record cases of COVID-19 in the workplace. On May 26, 2020, the previous guidance will be rescinded and OSHA’s updated guidance will go into effect, the key provisions of which are summarized below. Under the updated guidance, all employers subject to OSHA recordkeeping requirements will now have to determine whether employees’ COVID-19 cases are work-related and, if so, record such cases on the employer’s OSHA Form 300 log. The previous guidance generally exempted employers (aside from…
Originally published on April 8, 2020. Updated as of May 20, 2020. In an effort to halt the spread of the novel coronavirus Covid-19 (“Covid-19”), on March 14, 2020 the French government mandated a shut-down of non-essential businesses and other venues open to the public. The shut-down ended on May 11, 2020. Among the businesses concerned were retail stores, shopping centers, and restaurants. Businesses were authorized to continue their online activities and related deliveries. The shut-down did not impact businesses that are considered “essential to the life of the nation”, such as food shops, drugstores, banks, and gas stations (the…
For almost 80 years, it has been the law that an overtime-eligible employee whose hours fluctuate from week to week and who agrees to receive a fixed weekly salary covering all hours of work is entitled to a halftime premium for hours worked in excess of 40 per week—not a “time and a half” premium. The rationale is that the employee, by virtue of the fixed salary covering all hours of work, has already been paid the “straight-time” component of pay for the hours over 40. Accordingly, all that remains for the employer to pay is the “half” in the…
As many states throughout the country have begun implementing phased reopening plans, so too has the NLRB begun to return to a semblance of normality. Representation elections resumed in early April, and the NLRB recently provided clarification as to how representation hearings should be conducted. In the last few weeks the agency has counted ballots in representation elections by videoconference. The agency’s prosecutorial arm is now ramping back up. The NLRB Division of Judges announced on May 15 that it will resume holding hearings on unfair labor practice complaints beginning on Monday, June 1. Unfair labor practice trials…
***Last Updated: May 19, 2020*** New York State has issued detailed guidance on Governor Cuomo’s “New York Forward” Plan, under which the State will re-open in four phases on a regional basis. The guidance includes additional information regarding: (1) when regions will be permitted to begin a phased re-opening; (2) which businesses are included in each of the four phases; (3) what is required of businesses in order to re-open; and (4) how compliance will be enforced. Below is a summary of what employers need to know about the guidance. When Are Regions Able to Re-Open? While the…
On Monday May 18, 2020, Governor Baker announced the first phase of his administration’s much-anticipated plan to reopen Massachusetts (the “Plan”), nearly eight weeks after first ordering non-essential businesses to close and advising residents to stay home in light of the COVID-19 pandemic. In describing the phased reopening, the Governor repeatedly emphasized that the coronavirus has hit Massachusetts particularly hard – both in terms of confirmed cases and confirmed cases per capita. The Plan to reopen accordingly presents a careful and deliberate phased approach with regards to which businesses can open and when, and what metrics those businesses must meet…
The California Chamber of Commerce has just identified 10 recently introduced “job killer” bills that have been proposed by the California legislature. Worth noting are the following: AB 196 (Gonzalez; D-San Diego) Establishes “Conclusive Presumption” of Injury. Conclusively presumes that contraction of COVID-19 by all “essential workers” is a workplace injury, which will greatly increase the cost of workers’ compensation insurance for employers. AB 1107 (Chu; D-San Jose) Unemployment Insurance Compensation and Tax Increase. Raises employers’ share of payroll taxes to fund an increase in unemployment payments. AB 2999 (Low; D-Campbell) Requires Bereavement Leave. Requires employers to provide 10 days…
As if there weren’t enough to worry about, Los Angeles employers may face an even tougher challenge to prevail at trial in the aftermath of the Coronavirus pandemic, the trial consulting firm Dispute Dynamics suggests in its latest study. On May 4th, Dispute Dynamics surveyed Los Angeles County residents and people nationwide, inquiring about their most up-to-date attitudes in the context of being called as a potential juror during/following the pandemic. Astoundingly, without knowing anything more about the case, 80% of respondents from Los Angeles County said that they would believe an employee over an employer in a dispute, compared…