Labor and Employment Law Blog
Labor and Employment
Overturning Roe v. Wade : Potential Effects on the Workforce (Not a Political Speech)
I started thinking of some questions which might occur in the employment context after Dobbs v. Jackson Women’s Health Organizationoverturned Roe v. Wade and all cases following it since 1973. Here are a few. Are people protected from employment discrimination if they end or refuse to end a pregnancy? The Pregnancy Discrimination Act and Title VII of the Civil Rights Act of 1964 should continue to protect employees of companies with more than 15 employees from reproductive health-related discrimination and harassment even after the Supreme Court’s decision, regardless of their state of employment. Some states also have explicit abortion nondiscrimination statutes and/or a fewer employee number threshold. The Third, Fifth, and Sixth Circuit federal Courts of Appeals have held that an employer can’t discriminate based on the employee obtaining an abortion. The EEOC will continue to take this position. But the best course is not to inquire about employees’ health care decisions in the first place. Can an employer fire a person based on religious grounds for having an abortion? Courts generally have held that private employers can’t discriminate based on sex even if the policy purportedly is based on their religious beliefs. However, an exception to Title VII’s discrimination provision bars clergy members from bringing an employment discrimination claim against religious institutions. Can a pregnant person or one who had an abortion be protected from employment discrimination based on the Americans with Disabilities Act? Pregnancy itself isn’t a disability under the ADA unless the person is experiencing complications or aftereffects of pregnancy that impact one or more “essential life functions”; for instance, the mother develops long-term high blood pressure, affecting her ability to work at a broad variety of jobs. It’s also feasible that the aftereffects of an abortion could be an ADA disability if it impacts those functions. There will be more claims of disability and requests for accommodations due to pregnancy. How will this decision impact our current labor shortage? An immediate reduction in the labor force is a logical conclusion. The more pregnancies there are, the more pregnancy-related health issues will exist – leading to more absenteeism, reduced work hours, and disability leaves. Mothers will be out on maternity leave; paid maternity leave is legally mandated in some states. Workers sometimes leave the workforce because of pregnancy. That’s a few thoughts I’ve mulled over. What questions do you have about the effects of the Dobbs decision?
July 14, 2022
Labor and Employment
Time to Care Act
The Time to Care Act has passed, and beginning on January 1, 2025, most Maryland employees can apply for paid leave from a state fund. Fortunately, while this law took effect June 1, 2022, it isn’t functional until October 1, 2023, when employee and employer contributions start, and employees will not be eligible to take leave until January 1, 2025-allowing employers time to prepare. Essentially, employees who worked at least 680 hours over the 12 months immediately preceding the date on which leave is to begin are entitled to 12 weeks of paid leave for health and caretaking reasons. This leave can run concurrently with FMLA leave and, in many cases, essentially makes FMLA paid leave. That said, for employers who do not fall under the FMLA, it is important to note that the Time to Care Act does contain job protection similar to FMLA. While employers should start to consider next steps related to implementing new leave laws, they have some lead time. While employees won’t be eligible to take leave until 2025, employers should start communicating with employees about the new law next year since they will see contributions to the fund deducted from their paychecks beginning October 1, 2023. There are also a few unanswered questions based on how the law is drafted that I expect we will get answers to over the next 12-18 months.
July 13, 2022
Contractor's Corner
FedEx Purchase Agreements-More Than Just Legal Mumbo-jumbo
Often, when I first speak with prospective FedEx contractors, they are chomping at the bit to get started. They have learned about the industry and are excited about the opportunity to own a part of the booming logistics industry. This excitement often causes them to gloss over the purchase agreement in favor of moving forward quickly, viewing the purchase agreement as merely an obstacle to moving forward with the deal. However, failure to give the purchase agreement the attention it is due can yield complicated and expensive outcomes. The purchase agreement is more than just legal jargon and is the pivotal document dictating any verbal agreement the parties have reached and governs when the parties can terminate the deal, when the buyer gets their deposit back, and what the obligations of the seller between the execution of the purchase agreement and closing and after the sale. Outside the FedEx industry, businesses will often sign the purchase agreement and close on the same day. However, in the FedEx industry, because the sale depends on FedEx approval, the parties sign the purchase agreement and close weeks, if not months, later. This process, which is colloquially referred to as a “sign and delayed close,” leaves a lot of room for issues to arise between the time the parties sign the purchase agreement and closing, including, among other things: Seller failing to keep up the business in the ordinary course, leading to the buyer not getting what they were expecting on the closing date; A buyer failing to obtain or maintain financing; Physical assets falling into disrepair or becoming nonoperational; Employees leaving and the seller failing to hire new ones; and Seller improperly disposing of assets. Additionally, given the need to move forward quickly to start the process of getting FedEx approval, buyers are typically performing due diligence between signing the purchase agreement and closing, which can lead to buyers discovering unsavory details about the seller’s business that make them want to terminate the contract. While these are all real risks of “sign and delayed close” deals, they are palatable risks as long as the parties have a firm understanding of the risk they are each taking on, and the seller’s obligations between signing and close and the purchase agreement contains contingencies and reasonable outs for the buyer. Without proper protections in the purchase agreement, a buyer may have no choice but to move forward with an unexpectedly unsavory deal or risk losing their deposit. The moral of the story is: Don’t gloss over the purchase agreement! It governs the entire transaction, including what the buyer is entitled to between signing and closing and when the parties will go their separate ways.
July 10, 2022
Labor and Employment
Revisit Your Non-Disclosure Agreements or Risk #MeToo Issues
As you probably know, non-disclosure agreements signed by employees are legally binding. These may prevent workers from speaking out about workplace practices, including #MeToo issues. Newly introduced federal legislation targets NDAs that silence employees reporting sexual harassment. This is already a matter of law in some states, including California and Washington. Lift Our Voices, a pro-worker policy group headed by former Fox News anchor Gretchen Carlson, has spurred the House introduction by a Democrat of the SPEAK OUT Act (H.R. 8227). As with the last #MeToo related law passed, SPEAK OUT is backed by several GOP representatives already. Lift Our Voices expects an introduction of a similar Senate bill, apparently to be backed by Republican senators, including Lindsey Graham. Lift Our Voices supported another #MeToo-related bill, H.B. 4445, through its passage. That law nullifies provisions that force workers to arbitrate #MeToo claims rather than have their day in court. The SPEAK OUT Act applies to pre-dispute non-disclosure agreements signed before an issue arises. However, if a business is sued by an employee alleging sex discrimination or harassment, it would still be legal to include an NDA in a settlement agreement or release. Take a look at NDAs you’re using. It might be a good time to revise them, given the bipartisan support of this bill and state bills. I’m speculating here, but a court could go on to invalidate other provisions of the NDA if it contains this type of provision.
July 8, 2022
Labor and Employment
Is the Company’s Non-Compete Enforceable?
There’s a lot of fuss nationwide about whether agreements signed by employees not to compete after their employment are allowable. The FTC has now said that it is going to pursue a regulation banning non-competes. I have reviewed and written many non-compete agreements over the course of my career. Many of them are likely unenforceable under existing law. Here are some possible reasons (this list is not exhaustive): Agreements may be overbroad. For example, it may be that an agreement trying to ban someone from working worldwide when they only had a U.S. role is unenforceable. Depending upon where the person lives or is sued, the court might not let the employer revise the scope to make it enforceable. It would simply be thrown out, in that case. Employers: don’t overreach! Agreements may apply to employees who can’t be restricted. If the person is working in a state in which non-competes are void, even if the person is brought into a different state court, they might not be held to the agreement. D.C. passed an ordinance banning non-competes last year. Agreements don’t protect a legitimate business interest. Is there a legitimate business interest in disallowing a person (who has signed a confidentiality agreement) from working in the mailroom of a competitor? Agreements may restrict a person’s right to free speech. Just try to enforce an agreement not to disparage a company (and its employees, services, products, etc.) forever. Agreements don’t offer the employee any type of consideration for signing. In some states, merely letting someone continue to work for an employer is not enough value to the signer to enforce the non-compete. Most employees think nothing of signing these agreements – they want their jobs – or are not allowed to receive valuable things such as stock options if they don’t. But when the employee is moving on, they are faced with this dilemma: will I be sued if I ignore the non-compete? My advice is to consult a lawyer experienced in non-competes and non-solicitation agreements to learn more about yours. And employers, beware of the above common problems with non-competes; the law is changing very quickly on this subject. It’s wise to have your agreements reviewed often, given the number of recent court decisions and many new state laws limiting these provisions.
June 30, 2022
Labor and Employment
Defamation Claims: Johnny Depp Pulled Off a Miracle
Clients very frequently approach our lawyers with a keen interest in suing someone for defamation, a la Johnny Depp. I strongly discourage these claims. It’s a very tough row to hoe. First, defamation (libel is written defamation and slander is spoken defamation) requires a statement of fact, not opinion. For example, “John Doe is a racist” is not a defamatory statement because “racist” is an opinion (versus “John Doe used a racial slur.”) It also requires publication – sharing the statement with others. That means that a person could tell you off when you’re in a room alone, and it’s not defamation. Also, there are exceptions: for example, special standards apply to statements about people in the public eye. Almost anything goes with political figures, for instance. Finally, you have to prove actual damages. It might have hurt your feelings that someone published something very negative about you or your business, but did it lead to monetary harm? More than your legal bill would be if you sued? If the above requirements don’t eliminate the possibility of filing a defamation claim, I still think it’s a very tough one. As clearly revealed at the Depp v. Heard trial, it is “he said, she said” all the way. The plaintiff must prove by a preponderance of the evidence (that’s 51%) that the defendant’s statement was defamatory. Looking at the example above, how does John Doe prove that he did not make the racial slur? It’s his word against someone else’s word. Somehow, Depp pulled off this miracle. Defamation suits are only for people who lost a lot of money or suffered a huge indignity via the statements and have money to burn. Depp lost a pirate movie and other commercial opportunities; it’s extremely embarrassing to be labeled as a domestic abuser, and he is very wealthy. I shiver to think what he paid his lawyers for that win – against a person who filed a successful counterclaim for defamation against him; likely can’t pay it because the verdict is so large; and, at the bare minimum, won’t be paid for quite a while during the appeals process. I wonder if he feels it was worth it.
June 22, 2022
Labor and Employment
Anti-SLAPP and Section 230 Ruling
In a rare ruling on April 26, 2022, the Circuit Court for Baltimore City granted our Anti-SLAPP Motion to Dismiss in a defamation case brought by Joshua Harris, a former Green Party candidate for Mayor of Baltimore, against our clients Courtney Fix and Get Your Fix, LLC. Ms. Fix, who was the owner of a local donut shop, Full Circle Doughnuts, was sued by five different men in three separate lawsuits for defamation based on her social media posts that shared the stories of other women and their alleged loathsome experiences involving the men who filed suit. While two of the lawsuits were ultimately resolved out of court, the case filed by Mr. Harris was dismissed on several grounds, including Anti-SLAPP and Section 230 of the Communications Decency Act. In granting Ms. Fix’s Motion, the Court found that Mr. Harris brought the case against Ms. Fix in bad faith, his case lacked merit, Ms. Fix’s speech was protected under the First Amendment, and Mr. Harris’s status as a public figure, as well as the content of Ms. Fix’s speech in the context of the MeToo and Times Up movements, made Ms. Fix’s speech a matter of public concern. In making its ruling, the Court noted Mr. Harris’ request that the Court force Ms. Fix to submit to a mental evaluation “particularly offensive.” I was honored to have worked with my colleague Mark Dimenna to secure this outcome for our client. While Maryland’s Anti-SLAPP law has been on the books since 2004, these matters are rarely before Maryland courts, and there is just one reported case analyzing the law. On April 29, 2022, Mr. Harris appealed the Baltimore City Circuit Court’s decision, and the case is now pending before the Court of Special Appeals, providing just the second opportunity for Maryland’s appellate courts to consider the Anti-SLAPP statute. Check out the Baltimore Business Journal article on this case here: Judge dismisses defamation lawsuit against former Full Circle Doughnuts owner
June 3, 2022
Labor and Employment
You Can’t Arbitrate That!
Making an agreement to arbitrate an issue may be a great way to limit expense, save time, and preserve the confidential nature of the dispute. I often consider these when I draft contracts like severance agreements, non-compete agreements, and employment agreements. This has been a tool to keep information that might damage a company’s reputation out of the press. However, a new federal law says that employers can’t force employees to arbitrate claims about workplace sexual harassment or assault, even if they agreed in writing. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act had widespread bipartisan support. Employees may now choose (regardless of what they signed) how to bring any sexual harassment or assault claims against a company – in court or through arbitration. They also can’t be forced to waive their rights to join others in a lawsuit claiming sexual harassment or assault, regardless of what they signed. Note that some states also have laws forbidding employers from requiring an employee who’s alleged sexual harassment or assault to sign a non-disclosure agreement. This type of law is pending in a number of states, too. There’s obviously a strong sentiment among lawmakers to discourage an organization’s ability to keep such claims private. For those reasons, employers should consider updating anti-harassment policies and training programs (which are legally required in some states). Employers should also review and revise employment agreements that contain mandatory arbitration clauses and/or joint-action waivers – or just lower expectations of privacy.
May 13, 2022
Labor and Employment
May Your Business Require Employees Not to Mask?
As more and more businesses mandate that workers return to the workplace, management is wondering about masking requirements. Some business owners feel strongly that they don’t want to require their employees to wear masks. Others do not want to create the impression that the location isn’t safe for customers and feel that this might be exacerbated by masked public-facing employees. Some feel strongly that it’s their right as an employer to impose a no-mask policy for other reasons. Is that a good idea? If an employee decides to defy the no-mask policy, they may have a legal claim (backed by science) if the business fires them for disobeying the policy. The CDC (Centers for Disease Control) is still recommending public masking. An employee might even bring a whistleblower claim under state law if the employee complains about the safety of the workplace to management and/or health authorities. An employee could also complain to OSHA. Although the Supreme Court struck down the OSHA Emergency Temporary Standard requiring safety measures, OSHA will still enforce a masking policy if it determines that the location is unsafe (at least for certain employees) without masking. Finally, it bears repeating that an employee with a disability who’s protected by the Americans with Disabilities Act (or equivalent state law) and whose healthcare provider advises that masking is required should be allowed to mask. That claim (depending upon the exact facts, of course) would make it past a motion to dismiss and cost the business a lot to litigate. I haven’t seen a case on this topic yet, but for these reasons, I wouldn’t advise a mandated no-mask policy right now. Why not create a mask-optional policy if the business feels strongly? It might yield very similar results. Update on last week’s blog on the no-poach agreement criminal trial: the jury found the defendants not guilty. However, this was a criminal trial, and it’s easier to prove liability in a civil case (remember, O.J. Simpson). It’s still ok to mandate mask-wearing on the job.
April 29, 2022
Labor and Employment
The Department of Justice Has Cooked Up Criminal Charges for No-Poach Agreements
Here’s yet another reason not to enter agreements with other companies not to hire (poach) other companies’ employees: potential criminal prosecution. In the first-ever criminal trial for labor-related antitrust (Sherman Act) violations, the Department of Justice alleges that former DaVita Inc. CEO Kent Thiry conspired with other healthcare CEOs to limit employee movement to competitors. As of this writing, the federal jury is deliberating. The trial was eight days long. Prosecutors allege that Thiry and DaVita entered “no-poach” agreements with Surgical Care Affiliates LLC, Radiology Partners, and Hazel Health Inc. not to solicit each other’s executives or to ask the executives to tell their bosses before applying for a job with one of the three companies. If so, prosecutors argued that this arrangement had a “chilling effect” on commerce by keeping wages down in the companies’ market. The defendants have admitted that such an agreement existed – but that it had no such effect on business. The DOJ and workers have already brought many civil suits claiming that no-poach agreements adversely affected markets. Apple, Google, Adobe, Pixar, Intel, Intuit, Lucasfilm, McDonald’s, and Jimmy John’s are among those that have been sued.
April 20, 2022
Labor and Employment
How the Ukrainian Invasion Could Impact U.S.-Based Employees
Russia’s recent invasion of Ukraine—and the related sanctions against Russia— impacts your company’s U.S. employees. How, you ask? First, I don’t need to belabor this point, but limiting Ukrainian and Russian trade puts stress on supply chains, leading to additional U.S. food and other shortages and adding fuel to the inflation fire. Employers might have to consider suspending projects or reducing production, leading to furloughs or layoffs. If the company’s thinking about a layoff of more than a few dozen people, check the federal WARN Act as well as any WARN Act in the states where employees are working for notice requirements, which could be months in advance. If they aren’t planning to lay off workers, employers should be sensitive to the effects of the rising cost of living – consider small raises for valuable employees. Also, if pay issues become too important in the workforce overall, keep in mind that companies might have to fight union campaigns. On the immigration front, over two million people have fled Ukraine; as of the time I’m writing this, many are expected to apply to come to the U.S. Moreover, on March 3, the Department of Homeland Security granted what’s called Temporary Protected Status (TPS) to eligible Ukrainian nationals in the U.S. because of “ongoing armed conflict” and “extraordinary and temporary conditions.” Those eligible for TPS must have continuously resided in the U.S. since March 1, 2022, or earlier. The TPS will last 18 months, and people applying for TPS may also apply for a document allowing them to work in the U.S. for the duration of their TPS status. This could help with labor shortage issues if companies are still hiring. Finally, employers should be sensitive to the emotional impact of the situation. It might not be easy for employees who see colleagues, friends, and their families affected by the war. They might even need access to mental health care. Don’t forget that if the company is subject to the federal Family and Medical Leave Act or similar state statutes, military family leave provisions entitle eligible employees to take FMLA leave for any “qualifying exigency” arising from the foreign deployment of the employee’s spouse, son, daughter, or parent with the Armed Forces. This includes leave to arrange for departures of their loved one. Uncharted territory might lead to legal mistakes on top of all the other problems right now. Make sure to think through your personnel decisions.
March 21, 2022
Labor and Employment
Is Your Company Keeping Records as Legally Required?
A client just asked me in the course of moving offices what employee files the company needs to retain. What I’ve unearthed indicates that this is complicated. (Be sure to check with a lawyer to confirm that these requirements are in effect at the time the company is deciding this issue. Never rely on the internet for legal advice … I have stories.) Here are some requirements: IRS regulations dictate that companies retain all employee files reflecting payments for at least four years after the employment tax came due or was paid, whichever is later. The Department of Labor requires employers to retain 14 different types of documents! The Department of Labor regulations requires companies to retain all payroll records and collective bargaining agreements for three years. All-time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages must be kept for two years. Form I-9s for every employee must be retained for three years after the employee was hired or one year after termination, whichever is later. Employers must retain employment applications and related documents, records regarding transfers, demotions, layoffs, selection for apprenticeships or training, and requests for accommodations under state or federal law (such as for disabilities) for at least one year from the date of making the record or the action reflected in the document. In the case of terminated employees, the records must be kept for one-year post-termination. Where a charge of discrimination has been filed under Title VII, the ADA, or GINA, or where the EEOC or the Attorney General has sued the employer under those laws, the employer must retain all records related to the charge or action until final disposition of the charge or action. The date of final disposition is 91 days of the complaining employee’s receipt of a Right to Sue Notice from the EEOC or the date on which the litigation ends. Keep benefits records such as plan documents, 401(k) forms, COBRA documentation, benefits election forms, plan termination records, and other such documentation for six years following the employee’s termination. There are more requirements if the company has had any workers employed by immigration visa or the company has been a federal contractor … I won’t go there today. Good luck organizing your documents! Ask me about document retention policies and why a company should or should not retain documents for longer than legally required.
March 9, 2022
Labor and Employment
Warning: Audit Your Worker’s Pay
This week I wanted to address a news item about the women’s U.S. national soccer team. These players have very high earning potential (depending upon their performance in the World Cup.) Unfortunately for their employer, the U.S. Soccer Federation, the men’s national team has even higher earning potential (depending upon various issues mentioned below.) This brings up that compensation specter: the Equal Pay Act. The Equal Pay Act provides that those performing equal work requiring equal skill and effort must be equally paid. The Federation settled an Equal Pay Act and sexual discrimination lawsuit filed by the women’s national team players by paying them $24 million (in total; $22 million is paid outright to the women and their lawyers). The settlement is contingent upon the players entering into a new collective bargaining agreement with the Federation and court approval. This is the real headache: the Federation still has to reconcile the current pay structures to ensure equity. At the moment, male players get $407,608, and a woman makes $110,000 if their team wins the World Cup. Women receive $37,500 for making a World Cup team; men receive $67,000. The men’s team receives pay even if they lose to a team outside the top 25 in the FIFA rankings and a bonus of $9,375 for winning. Women receive nothing for losing and $5,250 if they win. It really doesn’t matter if the women’s team deserved this win. It was very expensive for the Federation, cast it in a very negative light, and they ended up paying a lot of money to get rid of these expenses and ensure the women will play. So audit your company to ensure that those who are performing the same or very similar jobs are receiving the same money and benefits under the same working conditions (guaranteed by Title VII). And remember, the amount someone is making is NOT confidential information. Prohibiting workers from discussing pay violates the National Labor Relations Act. So people can compare notes. Tell me about your experiences with equal pay issues, or contact me for more information on audits.
March 2, 2022
Labor and Employment
Vaccination Exemption Guidelines
I’m getting more and more questions about exemptions from COVID vaccination/booster mandates. I thought I’d offer reminders about the legal analysis in these situations. As you know, the exemptions are for disability-related reasons and religion-based reasons. Here goes, I tried to cut the legalese. Disability Under the ADA, employers may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring vaccination. If an employee can’t meet such a safety-related standard due to a disability, an employer may not require that employee to comply unless it can show that the person would pose a “direct threat” to the health or safety of others at work. The federal regulations define a direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” This determination consists of two steps: (1) is there is a direct threat and, if so, (2) assessing whether a reasonable accommodation would reduce or eliminate the threat. To determine if an employee who’s unvaccinated due to a disability poses a “direct threat” in the workplace, an employer first must assess the employee’s present ability to safely perform the job’s essential functions. Consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the harm will occur; and (4) the imminence of the harm. I advise my clients that the determination that an employee poses a direct threat should be based on the most current medical knowledge about COVID-19. Whether there’s a direct threat also depends on the work environment, such as whether the employee works alone or with others and where; the available ventilation; the frequency and duration of direct interaction the employee typically will have with others; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing. If a person with a disability who isn’t vaccinated would pose a direct threat to self or others, an employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate the threat. If there is undue hardship – expense, changing jobs, displacing other personnel, etc. – then the vaccination exemption might not be reasonable. Religion Once an employee presents evidence of a sincerely held religious belief, practice, or observance that prevents them from vaccinating, an employer must provide a reasonable accommodation unless it would pose an undue hardship. Courts define “undue hardship” (in this religious context) as more than minimal cost or burden on the employer. Considerations relevant to undue hardship may include, among other things, the proportion of vaccinated employees and the extent of employee contact with non-employees with unknown vaccination status. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under equal employment opportunity laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee. Just take all of the individualized circumstances into account each time. No two situations are the same, and you don’t want to be sued.
February 17, 2022
Labor and Employment
Supreme Court Ruling on OSHA’s ETS: Update
In my January 14, 2022, blog, Supreme Court Ruling on OSHA’s ETS: What Does it Mean and What’s Next? I discussed what could be next for OSHA’s Emergency Temporary Standard. As of January 26, 2022, OSHA has withdrawn the Emergency Temporary Standard and is pursuing a permanent standard through the standard process, which is slower and more rigorous. OSHA withdrawing the ETS means that employers can rest easy that they will never have to comply with its requirements. However, there’s more to come as OSHA looks to implement similar requirements through a permanent rule.
February 1, 2022
Labor and Employment
Supreme Court Ruling on OSHA’s ETS: What Does it Mean and What’s Next?
On January 13, 2022, three days after the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) COVID-19 vaccination and testing mandates went into effect; the Supreme Court stayed the mandate pending further review in the Sixth Circuit. However, the stay is only temporary, and employers should remain vigilant. For now, the mandate that would have impacted an estimated 100 million Americans is on hold, and employers, who were at the ready to race towards compliance, are likely breathing a collective sigh of relief. Supreme Court Ruling In a 6-3 decision, the Supreme Court reinstated the temporary injunction stopping OSHA from enforcing the ETS, pending resolution in the Sixth Circuit Court of Appeals. The Court’s decision focused on whether OSHA has the requisite authority to promulgate the ETS. In its ruling, the Court explained that, while OSHA has the power to “set workplace safety standards,” it does not have the authority to set “broad public health measures.” Ultimately, given that COVID-19 is a daily risk to individuals as they go about their daily lives, not just in the workplace, the Court found that “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Accordingly, the Court views COVID-19 as part of “the hazards of daily living,” not a workplace hazard under OSHA’s purview. Justices Breyer, Kagan, and Sotomayor dissented, finding that OSHA acted within its scope of authority in issuing the ETS. The dissenting justices concluded that COVID-19 presents a “grave danger” to employees, and the ETS is necessary to address those dangers. What’s Next? It is now up to the Sixth Circuit Court of Appeals to determine whether the ETS is valid. If it does, based on the Court’s reasoning in staying the ETS, it is unlikely to survive should it go before the Court again. Another consideration for the future of this regulation is that the ETS is a temporary standard meant to be replaced by a permanent standard on or before May 5, 2022. As such, we could see some movement by OSHA to engage in the formal rulemaking process to publish a formal regulation in the coming months. Also, given that Court approval of a vaccine mandate is unlikely, we may see new targeted regulations from OSHA to implement additional safety measures in workplaces where in-person work is necessary and social distancing is difficult, which are less likely to face successful legal challenges. Though employers are not currently required to comply with the numerous requirements of the ETS, including mandatory vaccination, it is within their discretion to mandate vaccination and implement other COVID-19 safety protocols. Even without OSHA’s mandate, many employers are mandating vaccination or implementing safety protocols based on vaccination status. While businesses implementing voluntary directives do not need to jump through the regulatory hoops of the ETS, they must still take care to develop comprehensive and compliant policies to ensure compliance with Title VII and the Americans with Disabilities Act (ADA). Additionally, it is imperative that companies still carefully consider what safety protocols are suitable for their workplace as the transmittal of COVID-19 in the workplace has both practical and legal consequences, especially where employers are subject to state and local COVID-19 safety orders.
January 14, 2022
Labor and Employment
What Now for Employers? CDC Issues New Recommendations Regarding Isolation
So, the Centers for Disease Control and Prevention (CDC) has issued guidance shortening the recommended time that people should quarantine from 10 days to 5 days based on certain conditions. The CDC’s new guidance says: For those who test positive for COVID-19, but don’t have symptoms, the quarantine period may be reduced from 10 days to 5 days as long as the person wears a mask around others (everywhere) for at least 5 additional days. However, if a person has a fever, they should continue to quarantine until the fever resolves (without medication for 24 hours). The CDC’s recommendation is the same as above for symptomless people who had close contacts with positive individuals if they are:unvaccinated, over 6 months out from receiving the second dose of the Pfizer or Moderna vaccines, or 2 months out from their single dose of Johnson & Johnson (without a booster). (I’m sure that you remember the definition of “close contact”: someone within 6 feet of the positive person for 15 minutes or longer during a 24-hour period.) The CDC now advises that no quarantine is needed for those with close contacts with people who tested positive and who have no symptoms and: have received a booster shot, are less than six months out from being fully vaccinated with Pfizer or Moderna, are less than 2 months from their J&J vaccine, or vaccinated people who are not yet eligible for a booster – including students younger than 16. People who are fully vaccinated should wear a mask in public indoor spaces for 10 days. Keep in mind that even those meeting criteria in #3 above who have symptoms should test and follow #1. According to the CDC, for all those exposed, best practice would also include a COVID-19 test at day 5 after exposure. If symptoms occur, individuals should immediately quarantine until a negative test confirms symptoms are not related to COVID-19. Good luck getting a test at home, but states still have PCR testing centers and some pharmacies are providing rapid and PCR tests for free. What does all of this mean for employers? Revise your policies. There will be less impact from COVID-19 on attendance, so long as your employees wear masks and remain symptomless. Be sure to include and enforce the mask mandate. Collect data on employees’ vaccinated versus unvaccinated status and dates of vaccination and boosters in order to enforce the guidelines. Maintain strict confidentiality. Continue to inform other employees, customers, visitors, and the state’s health department of a positive case. I hope that this is helpful. Please feel free to contact me with any related questions.
January 6, 2022
Labor and Employment
Why Your Company Should Adopt a Vaccination or Test and Mask Policy Regardless of Its Size
The court that stayed the OSHA vaccination ETS rejected the Biden administration's request to set deadlines in the legal challenge that would have had the case ready for oral argument by the end of December. Accordingly, even if the ETS is implemented, it won't be for a while because the court won't even hear an argument until January at the earliest. So many companies thought leaders are asking: what if the OSHA ETS is never effective? What if our company has less than 100 employees? Should our company still adopt a similar vaccine or test and mask policy? My advice is yes. Even if the ETS is ruled illegal by courts, it won't be illegal for a company to adopt the same policy. If the ETS is ruled invalid, it will be rejected on arguments that the government can't force this on private employers. For instance, the argument's being made that there shouldn't be an OSHA emergency rule unless something poses a "grave danger" to the workplace. At this point, lawyers are arguing that it's not "grave" anymore because of the vaccines. This has no impact on private employers' ability to promulgate a policy like this. OSHA is the Department of Labor's workplace safety expert agency. They have studied this situation, have statistics on the number of cases (and clusters) and have investigated how these cases spread at workplaces. In other words, OSHA has a lot of data on this subject. They have good safety reasons for the recommendations. The approach is not as intrusive as dictating vaccines but could make employees feel safer (because even vaccinated people can get COVID, and they don't know who around them is vaccinated.). Protecting employees portrays the company as a caring employer. At the same time, this type of policy reduces the likelihood that employees or customers may successfully sue the company for negligence if they contract COVID. Key to lawyers! Finally, preventing illness minimizes loss of productivity. Mandating vaccinations, with the required exemptions, would be the best way to prevent illness. But if employees who oppose vaccination aren't forced to vaccinate, they are more likely not to resign. This is a concern in the current labor market. For all of those reasons, I recommend a policy very similar to the ETS policy be implemented. But I welcome your input and discussion.
December 10, 2021
Labor and Employment
Rules Regarding Vaccinations Applicable to Certain Health Providers
Personally, I’m getting “breaking COVID news” fatigue. I’m willing to guess that you are too, but I have to constantly re-write these blogs. Yesterday, a federal court in Missouri blocked the Biden administration from enforcing a vaccine mandate for healthcare workers in 10 states. The U.S. District Court for the Eastern District of Missouri entered a preliminary injunction and the decision marks the first victory for opponents of the mandate, which requires workers at certain facilities that participate in the Medicare and Medicaid programs to be vaccinated by Jan. 4, 2022, and take other action by December 5. This is no longer the case at this time in the states of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. They aren’t subject to the rule while the injunction stands. More than half of states are now involved in challenges in different federal courts, which claim that the mandate will exacerbate staffing shortages along with other complaints. However, a federal judge in Florida already declined to block the rule in a separate suit. Some with knowledge believe that the mandate is likely to be upheld ultimately because the Centers for Medicare & Medicaid Services have the right to govern the rules for facilities if they want funding. But, the Eastern District federal judge Schlep ruled that the vaccine exceeds the agency’s authority because Congress did not authorize it. The conservative advice is for the qualifying health care businesses to proceed with the requirements for the planning as the December 5 deadline looms. It’s not safe to assume that any other court will enter an injunction. Again, this is still required in all states except the ones highlighted above. The facilities are required to: Develop a process/plan for vaccinating all eligible staff (who must be vaccinated by January 4, so two-shot vaccination series must begin by December 5); develop a process/ plan for providing exemptions and accommodations for those who are exempt; and develop a process/plan for tracking and documenting staff vaccinations. If your business needs more details on the mandates, please reach out.
December 8, 2021
Labor and Employment
ETS Legal Challenges, Requirements and Omissions
Ok, so now everyone’s heard that – as promised - OSHA’s new Emergency Temporary Standard has been issued and that, in general, employers with 100+ employees must require workers to vaccinate for COVID or be tested weekly starting January 4. (Incidentally, the guidance for contractors is now requiring vaccination by that date, as well.) Important note – don’t pull the trigger yet, if you haven’t already – although the standard took effect on Nov. 5, the U.S. Court of Appeals for the Fifth Circuit stayed the rule the very next day, pending further litigation (which will be expedited, so the question of whether it was validly issued is decided). To be honest, I would not be surprised if this went to the Supreme Court. We’ll see. The biggest question that my clients have asked so far is who pays for testing, given the ETS doesn’t require employers to pay testing fees or compensate workers for the time spent being tested? Employers are not off the hook because other laws may require it. Importantly, the Fair Labor Standards Act guidance reads: “[the] employer is required to pay you [worker] for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours. … For many employees, undergoing COVID-19 testing may be compensable because the testing is necessary for them to perform their jobs safely and effectively during the pandemic.” Safe advice: pay non-exempt workers if you’re requiring COVID testing. You don’t want the DOL to come calling and assess double damages and a fine for your company’s failure to pay. Stay tuned, I’ll update you further. In the meantime, contact me if you have any questions and as always, I’d love your feedback. What is your company planning to do?
November 11, 2021
Labor and Employment
Unexpected Long-Lasting Impacts of the COVID-19 Pandemic on Employers
The COVID-19 pandemic has undoubtedly had long-lasting impacts on the workplace as we now enter the twentieth month of the pandemic. Some effects were expected, such as increased safety precautions, layoffs, rehiring, closed offices, and remote work. However, some of the challenges facing employers have been a bit more unexpected and longer-lasting than initially anticipated. In the later months of the pandemic, companies have been navigating vaccine mandates and increases in Americans with Disabilities Act (ADA) requests against a backdrop of worker shortages and continued safety concerns, which weigh heavily on the decisions they are making as it relates to workplace policies. Vaccine Mandates Since vaccines became available earlier this year, employers have been grappling with whether to mandate or encourage vaccination or stay silent. Initially, the lion’s share of employers were opting to remain silent on vaccination or encourage vaccination through incentives or gentle nudging to avoid the hassle of mandating vaccination and providing religious and medical exemptions. Though, as it became clear over the summer that the COVID-19 pandemic was far from over, many employers began to consider mandating vaccination. This change was largely driven by a shift in public opinion, bold moves at the federal level, and the practical need for many employers with in-person operations to keep their workforce healthy and working. However, with many companies struggling to hire and retain enough employees to staff their operations fully, the analysis for many employers has gone well beyond the health and safety of their employees. Ahead of the implementation of the federal mandate through the Occupational Safety and Health Administration (OSHA) issuing an Emergency Temporary Standard, due to industry-agnostic worker shortages, many employers have opted to encourage vaccination over requiring it since they cannot afford to terminate employees for failing to comply with a vaccine mandate. For those who have decided to mandate vaccination, many have faced walkouts and terminations, sometimes resulting in a mass exodus of their workforce. ADA Requests The COVID-19 pandemic has resulted in many business owners and Human Resource (HR) professionals taking a crash course in ADA compliance. While many employers may typically receive a couple of requests per year, the pandemic has led to an increase in these requests, with some being COVID-19 related and many being COVID-19 adjacent. As it relates to COVID-19 specifically, while temporary COVID-19 illness is not a disability, many employers have received leave and accommodation requests related to managing risk around contracting COVID-19 with a pre-existing condition or COVID-19 long-hauler illness. Additionally, companies have seen an increase in employees needing to take time away from work or needing accommodations for mental health conditions. In many instances, these requests have led employers to dig deep into the EEOC’s guidance on these issues and examine the interaction between the ADA and FMLA and determine how accommodating employee needs impact the business's operations. Overarching in both of these issues are the operational burdens of administering these policies and the impact on the company’s workforce based on employees being unavailable to work or terminated or restricted from returning to the office. As employers continue to navigate employment matters related to the COVID-19 pandemic, they will continue to face increased administrative burdens related to keeping their workforce safe and accommodating and retaining employees. There is no shortage of complex issues and legal landmines involved, and employers must stay vigilant regarding legal compliance and consider the practical and legal consequences of their actions.
October 28, 2021
Labor and Employment
That’s a violation of HIPAA! But is it…
It has certainly been an eventful summer from the reopening of businesses and office spaces, talk of a fall “comeback” with many employers hoping to return the majority of their workforce to working in person or operating in a hybrid model, and the elimination of mask mandates to the reinstatement of mask mandates, a delta surge, increased vaccine mandates, and approval of the Pfizer vaccine. As we have learned over the last 18 months, there is never a dull moment when it comes to the COVD-19 pandemic. Over the last month, I have seen a sharp increase in companies mandating vaccination in the workplace and organizations requiring proof of immunization or a negative COVID-19 test to attend meetings or events. With these increases in mandatory policies, I have also been fielding many questions regarding HIPAA compliance. Namely, what do we need to do to comply with HIPAA when requesting and obtaining medical information, such as vaccination status? Well, I am here to set the record straight-HIPAA probably doesn’t apply to your business. The Health Insurance Portability and Accountability Act of 1996, better known by its acronym, “HIPAA,” is a federal law that created national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge. Since this law covers patients, it only applies to healthcare providers, health plans, healthcare clearinghouses (“Covered Entities”), and business associates acting on behalf of these Covered Entities. HIPAA does not cover businesses that are not in healthcare or acting on behalf of healthcare entities. While HIPAA does not cover most businesses who call me with questions regarding HIPAA compliance, that does not mean they are not responsible for keeping medical information confidential and keeping it secure and out of the wrong hands. When it comes to protecting confidential medical information, other federal, state, and local laws likely apply. For example, when it comes to employees, under the Americans with Disabilities Act (ADA), employers are required to keep all employee medical information confidential and keep it in a confidential medical file separate from the employee’s personnel file. There are also laws, such as the Family Education Rights and Privacy Act (FERPA), that protect the medical information of elementary, secondary, and post-secondary students. While asking whether HIPAA applies is not technically relevant to most companies or organizations, the question has become a colloquial way of asking what they should do with confidential information to stay out of trouble, which is a thoughtful and necessary question. Ultimately, when obtaining or storing personal medical information of employees, clients, or event attendees, companies and organizations need to check federal, state, and local regulations to ensure compliance.
August 26, 2021
Labor and Employment
Can Public Facing Businesses Deny Entry Based on Vaccination Status?
MAY I DENY A CUSTOMER OR CLIENT ENTRANCE TO MY BUSINESS? YES BUT. Business owners concerned about customers or clients entering their place of business without proof of a COVID-19 vaccine should be mindful of their obligations under Title III of the Americans with Disabilities Act. Specifically, Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S. Code § 12182 et seq. While Title III has general restrictions that businesses have to abide by when they choose to deny accommodations, a business may deny goods or services to individuals if their participation would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated through an alteration of policies, practices, procedures, or providing auxiliary aids and services. See 42 U.S.C.A. § 12182 (b)(3). Unsurprisingly, there is no precedent applying the law of public accommodations to an individual’s inoculation status. And though no court has yet said that the “direct threat” provision of Title III will be an affirmative defense to public accommodation discrimination, the analogous “direct threat” provision of Title I of the ADA, concerning employment discrimination, has been held to be an affirmative defense. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (interpreting 42 U.S.C. § 12113(b)); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (§§ 12113(b) and 12132(b)(3), of Titles I and III, are “parallel provisions”). Still the Equal Employment Opportunity Commission, analyzing the analogous provisions under Title I, has said that under the ADA, a “direct threat requirement is a high standard.” See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC Guidance, available at https://www.eeoc.gov/es/node/131879. WHAT IF A CUSTOMER REFERENCES HIPPA? HIPAA does not prohibit businesses or employers from requestinghealth information, including information about vaccination status. Rather, HIPPA protects the disclosure of such by the provider. Here is why: HIPPA applies to the following: Health plans Health care clearinghouses Health care providers who conduct certain financial and administrative transactions electronically. These electronic transactions are those for which standards have been adopted by the Secretary under HIPAA, such as electronic billing and fund transfers. WHAT ARE MY OBLIGATIONS BEFORE DENYING A CUSTOMER OR CLIENT ENTRANCE TO MY BUSINESS? Businesses would be wise to apply the same three step review of their policies and procedures that they would with their customers and clients under Title III, as they would with their employees under Title I. First, businesses should make an individual assessment before turning away a customer or client. In determining whether a customer or client poses a direct threat to the health or safety of others, a business must make an individualized assessment, based on reasonable judgment, that relies on current medical knowledge or on the best available objective evidence, to ascertain: STEP 1: The business must identify the specific risk posed by the individual. Here, the inquiry is whether the unvaccinated customer or client will expose others to COVID-19. STEP 2: Once the risk is determined, then the business must look at the four factors of whether the “direct threat” actually exists: Duration of the risk; Nature and severity of the potential harm; Likelihood that the potential harm will occur; and The imminence of the potential harm. 28 C.F.R. § 36.208(b). Businesses should consult with counsel when conducting this four-pronged assessment. Second, businesses should balance these factors before turning away a customer or client. When balancing factors relevant to determine whether the risk to health or safety of others is significant, each factor does not need to be significant on its own; rather, the gravity of one factor might compensate for the relative slightness of another. See 42 U.S.C. § 12182(a), (b)(3); See also Montalvo v. Radcliffe, 167 F.3d 873, 878 (4th Cir. 1999). Third, businesses should recognize that just as they do under Title I, they maintain a duty to try an accommodation first (before finding a direct threat). If the business determines that the customers and client would pose a significant risk to the health and safety of others, then it must determine “whether reasonable modifications of policies, practices, or procedures will mitigate the risk,” 28 C.F.R. § 36.208(c), to the point of “eliminat[ing]” it as a “significant risk.” 42 U.S.C. § 12182(b)(3). Under the ADA, a failure to make a reasonable modification is itself an act of discrimination unless the business can demonstrate that implementing the modification would fundamentally alter the nature of their business. See 42 U.S.C. § 12182(b)(2)(A)(ii). BOTTOM LINE: Businesses can deny customers and clients entrance to their businesses if they are unvaccinated. Businesses must make individualized assessment and balance those factors before denying unvaccinated customers and clients entrance to their business. Businesses are required to try an accommodation if it would not alter the nature of their business before denying unvaccinated customers and clients entrance to their business. Again, businesses should consult with counsel on issues relating to vaccination of customers and clients. This is a nuanced issue and additional guidance and rules are anticipated.
August 11, 2021
Labor and Employment
Vaccine Mandates: Are the Tides of Public Opinion Turning and Will it Lead to Increased Mandates?
Dr. Anthony Fauci recently expressed his support for more local vaccine mandates for schools and businesses, which was swiftly followed by a barrage of state and local governments and healthcare companies mandating the vaccine. While businesses have always been able to require vaccination, many have shied away from doing so based on the practical and legal implications, which include providing religious and medical exemptions and preparing to enforce a mandatory vaccination policy even if it means terminating high performing employees. Based on these complications, many private businesses have been encouraging vaccination instead of mandating it. However, with more encouragement from federal, state, and local governments and public health officials, the tides of public opinion are turning, and more businesses may opt to mandate vaccination. That said, moving forward, regardless of guidance from governments, the CDC, and public health officials, business owners will still have to consider the practical realities of vaccine mandates and the potential pitfalls. One practical consideration for many employers has been the appetite for vaccination among their employees. When employers mandate vaccination, they have to be prepared to enforce the policy if an employee refuses to get vaccinated, which could cause them to lose top talent in a competitive job market where replacements are hard to find. Another potential pitfall to mandating vaccinations is the administrative costs associated with processing and vetting exemption requests, especially related to religious exemptions, which are often difficult to assess and determine validity. On the flip side, with the cold and flu season on the horizon, unvaccinated workers may miss substantial amounts of work for common cold symptoms. Just last week, after Dr. Fauci encouraged vaccine mandates, I commented on this subject in the Maryland Reporter (view the article here). Since that time, as the infection and death rates related to the delta variant continue to rise, vaccine mandates have rolled out at a rapid pace with vaccine mandates for New York City, California, and Veterans Affairs workers and a wide range of medical groups and long-term care employees. Many of these mandates have been partial mandates giving employees an interesting choice: get vaccinated or get tested for COVID-19 weekly. Providing a testing option encourages vaccination by putting the burden on employees to get tested weekly and reduces the administrative headache of drilling down on exemptions claimed by employees by providing an alternative to vaccination. While there has been an increase in vaccine mandates in the public sector that may result in increases in private business mandates, the change in public opinion does not eliminate the potential pitfalls and challenges private employers face when determining if a vaccine mandate is right for them. Accordingly, employers still have several things to consider before mandating vaccination and should be sure to have a comprehensive policy to ensure their practices are legally compliant.
July 30, 2021
Labor and Employment
COVID-19 “Long-Haulers” and Workplace Accommodations
Employers spent the better part of 2020 and the beginning of 2021 evaluating how to prevent employees from contracting COVID-19 and address COVID-19-positive employees. Now, as employees return to work, employers face new requests from employees who had COVID-19 weeks or months ago but have not fully recovered. These individuals, typically called" long-haulers," often suffer from lasting physical and psychological issues from their illness. With little currently known about long-haulers, the problems and ailments long-haulers face are likely to impact the workplace for the foreseeable future. COVID-19 long-haulers deal with a host of ailments, including shortness of breath, debilitating fatigue, sluggish mental capacity and memory loss, and dizziness. As one can imagine, these symptoms may inhibit an employee's performance or attendance. As a result, employers should consider ways to address these issues and remain compliant with applicable state and federal laws. If an employee expresses concern regarding long-haul COVID-19 symptoms impacting their work performance, employers should consider whether the employee's challenges trigger company obligations under the Americans with Disabilities Act (ADA). While there's little precedent regarding whether COVID -19 long-haulers ailments are a condition covered under the law, employees who request accommodations because of long-haul symptoms will likely qualify for accommodation. The definition of "disability" under the ADA is intentionally broad, and the ADA does not provide a specific list of what conditions are covered. Instead, individuals meet the definition of "disability" if they have "a physical or mental impairment that substantially limits one or more major life activities." While the ADA does not likely cover an employee who contracts COVID-19 and fully recovers within the standard recovery time of two weeks, if an employee has lingering COVID-19 symptoms that limit their ability to perform their job duties, they likely qualify for coverage under the ADA. Similarly, long-haulers who ask for leave may be entitled to it under the Family Medical Leave Act (FMLA). The FMLA defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. A serious health condition also includes impairment of more than three calendar days plus two or more visits to a health care provider. An employee suffering from long-term COVID-19 ailments is likely to meet the definition of a serious health condition and may qualify for leave, intermittent or continuous, under the FMLA. Ultimately, as employees return to work, employers should be mindful of handling requests from employees around COVID-19 related illnesses and challenges to ensure they are compliant and do not inadvertently or improperly deny employee requests.
July 16, 2021
Labor and Employment
Separate Pay for Restaurant “Side Work?” Maybe.
Anyone who has ever worked in the restaurant industry is familiar with the term "side work." For most servers, side work, typically consisting of folding napkins, setting tables, restocking, and other maintenance tasks, often make up a significant portion of their work hours. This is especially true when the restaurant is slow and there isn't much for servers to do. Side work, which is untipped work, is typically regarded as undesirable grunt work that is a necessary evil of waiting tables. Often, since restaurant owners can reduce servers' hourly rates well below the minimum wage to account for tips, employees are making as little as $2.13 per hour. However, a rule proposed by the DOL is seeking to change the way employees are paid for their side work, creating a dual approach where employees are paid at one rate when completing tip-producing duties and another when completing other tasks. Under the proposed rule, individuals who spend a "substantial amount of time" on untipped side work would be entitled to the full minimum wage for certain hours worked. The DOL defines a "substantial amount of time" as (a) spending more than 20% of their hours worked in a workweek on side work (otherwise known as the 80/20 rule), or (b) spending more than 30 minutes of uninterrupted time on side work must be paid standard minimum wage. Thus, per the proposed rule, if an employee spends a substantial amount of time on untipped work, the employer will not take a tip credit and lower the employee's minimum wage for the time the employee spends on untipped work. The comment period for the DOL's proposed tipped rule closes on August 23, 2021. If it is adapted, restaurants will need to shift from simply tracking the hours employees work to documenting what employees are doing during those hours.
July 2, 2021
Labor and Employment
Are you National Labor Relations Act (NLRA) compliant?
In 1935, Congress enacted the National Labor Relations Act (NLRA) intending to protect workers from harmful labor practices and encourage collective bargaining. Out of the NLRA came the National Labor Relations Board (NLRB), an independent federal agency created to enforce the NLRA. While the NLRA granted employees the right to form or join a union and engage in activities aimed at improving working conditions, many employers are unaware of the impact of the NLRA beyond its unionization rights. The NLRA applies to all private workplaces (unionized and non-unionized) in the United States, and all businesses must ensure that their policies and practices do not violate the NLRA's protected activity provisions. Under the NLRA, employees have the right to act with co-workers to address work-related issues. These rights materialize in many ways that go above and beyond employees circulating a petition or joining together to protest working conditions. Concerted protected activities include employees talking openly about pay and benefits, talking to the media about working conditions in the workplace, and refusing to work in unsafe conditions. It is also important to note that it does not take several employees engaging in the activity for it to be a "concerted protected activity." Individual employees may be engaging in protected activity if they are acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action. Ultimately, employers should not prohibit employees from talking about their pay and benefits and must be mindful of their confidentiality, workplace conduct, conflict of interest, and solicitation policies and whether they are NLRA compliant. Overly restrictive policies, while appearing reasonable on their face, may run afoul of the NLRA. For example, while an employer may prohibit an employee from posting something maliciously false or disparaging on social media, broad policy language prohibiting employees from posting anything negative or unsavory about an employer is likely unlawful.
June 10, 2021
Labor and Employment
Delaware's Contractor Registration Act – 19 DEL. C. CHAPTER 36
EFFECTIVE JULY 1, 2021 After a lengthy delay caused by the COVID-19 pandemic, the Delaware Contractor Registry will “go live” on July 1, 2021. Any Contractor who performs construction or maintenance services in Delaware must be registered before performing those services. If the services include work on any public project, the registration must be completed by August 1, 2021. Failure to become registered can result in severe penalties, some of which will effectively put the Contractor out of business. Registration is being handled online through the Delaware One-Stop system (https://onestop.delaware.gov) and is currently in a testing phase with contractor volunteers. Assuming that one has all of the necessary information at their fingertips, the process appears relatively simple and painless. The annual fee is $200 for Contractors performing only private work, $300 for only pubic work, and $500 for those who perform both. A two-year registration discount exists for Contractors who are on the registry for two years with no violations. Most of the information necessary to register is straightforward (FEIN, NAICS Code, contact information, business, and related licenses) if also somewhat intrusive (contact information for all persons with a financial interest in the business). Proof of participation in unemployment and workers’ compensation is required, as well as having an OSHA-compliant safety plan. One item likely to cause confusion and discontent is the disclosure of “labor law violations” during the prior six (6) years. The form asks if the Contractor has received “notifications” from the Department of Labor that it has incurred a violation but fails to distinguish between mere allegations and actual, proven violations. And penalties, of course, there are penalties. They range from being denied registration or having registration revoked (and thereby the ability to work) to being required to post a surety bond to civil penalties ranging from $5,000 to $85,000 (no, that last one is not a typo). One unusual aspect of this statute is that while appeals to the Secretary of Labor are allowed (as with other labor law statutes), there is also a right of appeal from the Secretary’s decision to the Superior Court. Any business that performs construction services or maintenance work must register and do so quickly. For further information, go to the Department of Labor website at CONTRACTOR REGISTRATION ACT - Delaware Department of Labor. This site has FAQs, a copy of the statute, a brochure and checklist of the required information, and links to the Delaware One Stop and the application.
June 3, 2021
Labor and Employment
What to Ask a Lawyer When Starting a Business
(Note: to navigate through the video, click on the YouTube button on the bottom right of the video to open the full version with time controls.) I sat down with Dave Lorenzo on the Inside BS Show to discuss what business owners should consider when hiring an attorney and the importance of having a team of subject matter experts available to help when needs arise. During my conversation with Dave, I answer several questions regarding how I engage with clients and what business owners need to know when dealing with legal issues impacting their business, including: Do I need a lawyer to start a business? Should I work with a litigator of a transactional attorney? What questions should I ask a lawyer before I hire her? Check out the interview for the answers to these questions and more. You can use the timestamps below to navigate through the interview: 00:00 - What to Ask a Lawyer When Starting a Business 01:47 - Business Lawyer Profile: How do you become a business lawyer? 02:22 - What is the biggest challenge you face as a business lawyer? 03:40 - What challenges do you face related to the law and COVID? 05:24 Why is it important to work with a lawyer who knows litigation as well as transactional work? 06:47 What is the definition of Complex Commercial Litigation? 08:00 Why your attorney must ask the right questions when you are a business start-up. 09:53 Do I need a lawyer to start a business? 11:48 How do you protect trade secrets when you hire employees? 14:53 How to get business clients as a lawyer 16:16 How to use LinkedIn and Blogs for law firm marketing. 18:00 Examples of strategic alliance marketing for law firm business development 19:40 How do I find the right lawyer for my small business? 21:18 What unique insight has being a general counsel given you as a business lawyer? 24:36 What is the biggest challenge for a small business owner in working with a lawyer? 26:33 How to get in touch with a business lawyer
June 1, 2021
Labor and Employment
Saying Goodbye to Maryland’s Mask Mandate: Now what?
On Friday, May 14, 2021, Governor Hogan announced changes to Maryland’s mask mandate, which took effect on Saturday, May 15, 2021. Under Governor Hogan’s executive order, individuals are no longer required to wear masks, inside or outside, except when they are: in or on any Public Transportation or School Bus; obtaining healthcare services, including without limitation, in offices or physicians and dentists, hospitals, pharmacies, and laboratories, and indoors in any portion of a School where interaction with others is likely, including, without limitation, classrooms, hallways, cafeterias, auditoriums, and gymnasiums. Many Maryland counties have advised that they will follow Governor Hogan’s order and not impose any additional mask restrictions. In contrast, some jurisdictions, such as Baltimore City, have kept their mask mandates in place. While individuals are no longer required to wear masks under Maryland law, the CDC has recommended that individuals who are not fully vaccinated against the coronavirus should continue to wear masks and practice social distancing (where possible) when inside or when outside and engaging in any of the following behavior: Attending a small outdoor gathering with fully vaccinated and unvaccinated people; Dining at an outdoor restaurant with friends from multiple households; And attending a crowded outdoor event, like a live performance, parade, or sports event. While Governor Hogan’s order does not distinguish between vaccinated and unvaccinated individuals, the CDC does. The CDC still recommends that unvaccinated individuals wear a mask most of the time to protect themselves. Now that Governor Hogan has limited the mask mandate, Employers must determine what policies and procedures make the most sense for their workforce. While, under Equal Employment Opportunity Commission (EEOC) guidance, employers can ask employees to verify whether they are fully vaccinated, the administrative burden will likely be too much for most employers. However, if employers are unaware of the vaccination status of their workforce, they are left to either continue a mask mandate in the office to protect unvaccinated employees or implement policies allowing employees to go maskless and encouraging unvaccinated employees to wear a mask to protect themselves. Putting the onus on each individual to act according to their vaccination status is likely how many employers will move forward. However, in doing so, it is vital for employers to thoroughly inform their employees of the current guidance and make it clear that employees, regardless of vaccination status, may still wear masks and practice social distancing. Additionally, regardless of whether employers decide to require masks or ditch mask-wearing, they need to pay close attention to what other policies they need to keep, such as quarantine requirements for unvaccinated employees and reporting policies. Ultimately, employees should explore their options and develop a clear and comprehensive policy letting employees know what the company expects and how to keep themselves safe. It is also crucial that employers continue to pay close attention to local rules and mandates. Questions about this or any other legal matter, please contact Sarah at Sarah.Sawyer@offitkurman.com.
May 20, 2021
