Labor & Employment

As we recently reported, OFCCP has issued its 2020 Corporate Scheduling Announcement List.  That list included contractors selected for two new types of reviews focused on promotions and accommodations.  Other than some comments made by Director Leen in speeches, contractors had little information concerning the new types of reviews and what they entailed. That is, until now.  On September 23, 2020, OFCCP announced the launch of two websites providing information on the new Promotions Focused Reviews and Accommodations Focused Reviews.  These websites provide an overview of the new types of focused reviews and the scope of the new…
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…
On September 8, 2020, the EEOC released an updated technical assistance document addressing COVID-19 and the federal anti-discrimination laws enforced by the agency, including the Americans with Disabilities Act (“ADA”). Our previous posts about the EEOC’s prior COVID-19 guidance are available here and here. The updated guidance includes 18 new questions and answers, most of which were adapted from a webinar conducted by the agency in March. Several other responses have also been updated. Most of the new questions and updates involve three topics: (1) disability-related inquiries and medical examinations, (2) confidentiality of medical information, and (3) reasonable accommodations.…
In a Law360 guest article published on May 26, we alerted employers to an anticipated flood of various types of COVID-19 health and safety-related whistleblower retaliation claims, including those filed with the Occupational Safety and Health Administration, as well as those filed in courts under common law and state and federal statutes. The predicted deluge of complaints to OSHA has been borne out by statistics released by OSHA showing a total of 2,660 COVID-19-related whistleblower complaints were filed between Feb. 18 and Aug. 25. This led to questions as to whether the agency could adequately address complaints in a timely…
As we have previously reported, the Families First Coronavirus Response Act (FFCRA), which remains in effect through December 31, 2020, provides, among other things, that eligible employees can take up to 12 weeks of FMLA leave if the employee is unable to work (or telework) due to a need for leave to care for their son or daughter if the child’s school or place of care has been closed, or the child’s child care provider is unavailable, due to a public health emergency with respect to COVID-19 declared by a Federal, State, or local authorities. The United States Department…
On August 21, 2020, the Centers for Disease Control and Prevention (“CDC”) updated its guidance on Travel during the COVID-19 Pandemic. Previously, the guidance recommended that travelers self-quarantine for 14 days after: (1) all international travel, and (2) domestic travel to areas with a high concentration of COVID-19 cases. The guidance now recommends that travelers “follow state, local, and territorial travel restrictions,” which may include “testing requirements, stay-at-home orders, and quarantine requirements upon arrival.” For international travel, the CDC recommends visiting the destination’s Office of Foreign Affairs or Ministry of Health or the U.S. State Department website for information…
On August 24, 2020, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) providing guidance on employers’ obligations under the Fair Labor Standards Act (“FLSA”) to track and pay for the hours of compensable work performed by employees who are working remotely.  While timely in light of the COVID-19 pandemic, the guidance is applicable to all situations where non-exempt employees are working away from a worksite or premises controlled by their employer. It’s long been the law that an employer is required to pay its employees for all hours worked, including work not…
The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation.  On August 13, 2020, the National Labor Relations Board (“NLRB”) Division of Advice (“Advice”), the agency’s internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the COVID-19 pandemic.  The Memoranda were all drafted by Advice within the past two months, expanding upon the guidance previously released on July 15. Each Memoranda addresses a different COVID-related complaint concerning a variety of topics, such as employers’ responses to employees voicing concerns about workplace…
On August 8, 2020, the President issued an executive memoranda establishing the Lost Wages Assistance (“LWA”) program, a new unemployment benefit intended to replace the recently-expired $600 per week Federal Pandemic Unemployment Compensation (“FPUC”) payment. As a refresher, the CARES Act created three unemployment benefits programs: (1) Pandemic Unemployment Assistance (“PUA”), providing benefits for those not traditionally eligible for unemployment; (2) Pandemic Emergency Unemployment Compensation (“PEUC”), providing 13 additional weeks of benefits for those whose benefits expire; and (3) FPUC, providing a $600 per week additional benefit if the individual received other unemployment benefits in that week. While PUA and…
On August 3, Judge Paul Oetken of the Southern District of New York issued a decision invalidating various portions of the Department of Labor’s rules implementing the federal Families First Coronavirus Response Act (FFCRA). The FFCRA is the federal law that provides emergency relief and support to employees who need to take leave from work for COVID-19 related reasons during the pandemic. The two key provisions of the law are the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA).  Both apply only to employers with fewer than 500 employees.  The EFMLEA amends…
Quick Hit:  Employees in the District of Columbia are currently eligible for paid and unpaid COVID-19 related leave under measures that temporarily expand the D.C. Family and Medical Leave Act (“DCFMLA”) and D.C. Accrued Sick and Safe Leave Act (“ASSLA”). Key Takeaway:  D.C. employers now must navigate an additional set of paid and unpaid leave requirements.  D.C. employers should review these new requirements and update their policies to reflect these temporary measures. More Detail: As we previously reported, in March 2020 the District of Columbia passed the D.C. COVID-19 Response Emergency Amendment Act of 2020, which expanded DCFMLA to…