CLIENT ALERTS

Yesterday, September 9th, President Biden issued new Executive Orders requiring federal contractors and healthcare employers to implement “hard” vaccine mandates, and directed federal OSHA to issue a new Emergency Temporary Standard that would require many employers to provide paid time for employees to get vaccinated and recover from the vaccine, and to implement “soft” vaccine mandates; i.e., require employees to either be fully vaccinated or get weekly COVID-19 testing.

We have an unfortunate update to share out of the CDC yesterday.  Short story, do not throw away your “Masks Required” signs.  In the afternoon of Tuesday, July 27th, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People," in which the CDC recommends that fully vaccinated people:

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• wear masks in public indoor settings in areas where there is substantial or high transmission;

• can choose to wear a mask regardless of the level of transmission; and

• who have a known exposure to a suspected or confirmed COVID-19 case be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

On March 10, 2021, the Mine Safety and Health Administration (“MSHA”) released additional – and more detailed – COVID-19 guidance.  Issued under the Biden Administration, “Protecting Miners: MSHA Guidance on Mitigating and Preventing the Spread of COVID-19” is significantly more detailed than what was provided by MSHA in 2020. The enhanced guidance recommends mine operators and independent contractors working at mines take additional action to limit the spread of COVID-19 in the workplace. This is akin to what the Occupational Safety and Health Administration (“OSHA”) has recommended in its COVID-19 guidance for general industry workplaces.

2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking over COVID-19 prevention and reporting taking center stage.  In this annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws given their far-reaching impact on the state’s workforce during the pandemic as employers take measures to prevent the spread of COVID-19 in the workplace.  We have addressed as well other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data.  Unless otherwise indicated, these new laws will take effect on January 1, 2021. 

“OSHA will not be using drones to conduct covert surveillance,” says Aaron Gelb, of Conn Maciel Carey, a firm that represents employers, adding that in order for OSHA to use a drone to help conduct an inspection, the agency must get employers' consent. “They have to get your permission.”

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Gelb says that the agency flying a drone near a worksite and spotting a workplace hazard is a potential outcome, because the agency has done so in the past. “I wouldn't be surprised if they use it in an adjacent area that is public property,” he says. OSHA inspectors can observe an outdoor worksite from across the street if they are in a public space and can cite hazards that are in “plain view.”

As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations.  Many states and localities are setting as a precondition for businesses to reopen, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.  Regardless of any such requirements, any business that operates without a written Exposure Control Plan is setting itself to face citations from OSHA, shutdowns by local authorities, employee refusals to work, complaints to OSHA, retaliation claims, as well as lawsuits for wrongful death by the families of employees, customers, and guests.

On May 7, 2020, California Governor Gavin Newsom released industry guidance – including for hotels and lodging employers – to begin reopening with modifications that reduce risk and establish a safer environment for workers and guests.  The guidance for the lodging industry imposes a number of requirements upon employers, included among them that every employer must develop a comprehensive, worksite-specific COVID-19 prevention plan prior to reopening.  When complete, businesses can post the industry-specific checklist in their workplace to show customers and employees that they’ve reduced the risk and are open for business.

The Coronavirus pandemic has created unprecedented challenges for employers that are attempting to meet OSHA regulatory obligations – such as annual training, auditing, testing, medical surveillance requirements, and the like – without creating greater risk of exposure to COVID-19 for their employees.  This evening (April 16, 2020), OSHA issued a new Enforcement Memorandum acknowledging that reality.  The enforcement memo, entitled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts During the Coronavirus Disease 2019 (COVID-19) Pandemic,” provides enforcement relief for employers who exercise good faith in the context of this extraordinary health crisis.

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “Act”) to provide some relief to employees as a result of COVID-19.  The law, which only applies to private employers with fewer than 500 employees, goes into effect on April 1, 2020 and will expire on December 31, 2020.    The key provisions of the Act include an emergency expansion of the Family and Medical Leave Act (FMLA) and a new federal paid sick leave law.   

Following the 2018 legislative session, which was dominated by laws responding to the #MeToo movement, 2019 has produced a long list of new employment laws on a myriad of topics. From a new test for determining independent contractor status to a ban on no rehire agreements and revamped reporting standard for serious workplace injuries and illnesses, 2020 brings significant changes for California employers. Though many of these laws will add items to the HR to-do list, employers have at least secured a one-year reprieve for completing mandatory harassment prevention training introduced last year.

The California Division of Occupational Safety and Health (Cal/OSHA) just announced major changes to the definition of “serious injury or illness” for purposes of California employers’ duty to report certain serious workplace injuries to Cal/OSHA.  Pursuant to Cal. Labor Code Sec. 6409.1(b), in every case involving a work related death or a serious injury or illness, the employer must “immediately” make a report to Cal/OSHA.  Employers may be cited and subject to penalties for failure to make such reports, and reporting such incidents almost always lead to a site inspection by Cal/OSHA, which in turn most often result in Serious or Serious Accident-Related citations.

In the final days of California’s 2018 legislative session, and the end of his term, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new legislation seeking to bolster the state’s workplace harassment laws in the aftermath of the #MeToo movement.  Conn Maciel Carey LLP provides this summary of key new employment laws impacting California private sector employers.  Unless otherwise indicated, these new laws just took effect on January 1, 2019.

Musculoskeletal disorders (MSD)--injuries and disorders that affect the human body’s movement or musculoskeletal system—are the single most common type of work-related injury, accounting for nearly 30% of all worker’s compensation costs.  OSHA, which estimates that work-related MSDs in the U.S. alone account for over 600,000 injuries and illnesses each year, has tried but failed to adopt an Ergonomics Standard requiring employers to take measures to curb ergonomic injuries in the workplace.  Where federal OSHA fell short, the State of California has picked up the slack with Cal-OSHA approving a safety standard regarding Housekeeping Musculoskeletal Injury Prevention.  The standard, which will likely go into effect in April or July 2018, applies to all lodging establishments that offer sleeping accommodations available to be rented by members of the public and requires operators to develop, implement and maintain a written Musculoskeletal Injury Prevention Program (“MIPP”) that is tailored to hazards associated with housekeeping and includes a number of required elements, including worksite hazard evaluations, injury investigations, hazard abatement, employee training and recordkeeping.  Given the amount of work required to comply with this new standard, covered employees should act promptly, because waiting to the last minute could create quite a mess.

California has had yet another banner year closing the 2017 legislative session with a spate of new employment laws imposing additional compliance obligations on employers.  Bucking the anti-regulatory tide in Washington, DC, California has passed dozens of new laws impacting both private and public sector employers.  Overall, Governor Jerry Brown has vetoed just over 12% of the bills passed by the California legislature this year.

Conn Maciel Carey LLP provides this summary of key new employment bills, regulations and local ordinances impacting California private sector employers.  Unless otherwise indicated, these new employment laws take effect January 1, 2018. 

Hurricanes Harvey, Irma and Jose have hit, are hitting, and will soon be hitting the United States, and first and foremost, employers need to make sure their employees, customers, and guests are safe from the storm.

Natural disasters such as hurricanes, earthquakes and tornadoes pose a myriad of employment and human resource (HR) challenges for employers, from wage/hour issues to FMLA leave and the WARN Act. The best protection is to have a plan in place in advance to ensure your employees are paid and well taken care of during this difficult time.

Recently, I had the opportunity to participate in a discussion with my fellow IR Global members to discuss the use and enforceability of restrictive covenants in employment contracts, and how different countries across the Globe view such covenants.

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Every company has information, customer goodwill, and other valuable assets that are considered both integral and invaluable to its success. Limiting the use of this information by employees and protecting goodwill after the term of their employment contract can be vital to the protection of a market position. An accepted method of providing this protection is to include restrictive covenants in employment contracts, which are designed to prevent certain information being used by competitors, while providing for damages should those agreements be breached.

As a parting gift from Joe Main’s tenure as Assistant Secretary, yesterday afternoon MSHA released the final rule for Examinations of Working Places in Metal and Nonmetal Mines standard. MSHA first proposed rebooting 30 C.F.R. §56/57.18002 on June 8, 2016. After an extended public comment period, ending on September 30, 2016, MSHA modified elements of the proposed rule while crafting the final version which will be formally published in the Federal Register next Monday, January 23, 2017. For more information on the evolution of the rule from the initial proposal to final rule released yesterday, see our previous review of the Proposed Rule and Webinar.

For over a year, the D.C. City Council has considered a bill that would have provided employees in the nation’s capital paid family and sick leave. Now, after extended debate and comment from the public and business community, on December 20, 2016, the D.C. City Council passed the bill, known as the Universal Paid Leave Amendment Act of 2016 (“the Act”), with some modifications.

In late September 2016, twenty-one states led by Texas and Nevada, along with the U.S. Chamber of Commerce and other business groups, challenged the U.S. Department of Labor’s (“DOL”) new overtime exemption rule set to take effect on December 1, 2016, and sought a nationwide injunction preventing the rule from taking effect.

Following a flurry of activity in the final days of California’s 2016 legislative session, this past month Governor Jerry Brown has signed into law various employment bills addressing everything from state employee pensions to expanding overtime eligibility and regulating employment agreements. This continues the tide of new employee-friendly laws in the Golden State. Although dozens of employment bills have recently been signed into law, we have summarized the significant new laws especially impacting private sector employers.

The day that has been looming over employers for the past 2 years since President Obama directed the U.S. Department of Labor (“DOL”) to update and modernize the existing Fair Labor Standards Act’s (“FLSA”) white collar exemptions has finally arrived.  Today, the DOL released its final rule revising the regulations governing who is exempt from overtime, along with guidance on its major provisions.  The final rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, largely reflects what the DOL had proposed in 2015, with some important revisions, including a slightly lower salary threshold level at $47,476.00.  However, that salary floor still sits at more than double the current salary threshold of $23,660.00.  

On December 12, 2014, the National Labor Relations Board (“NLRB”) adopted a Final Rule that will significantly alter existing union election proceedings.  Employer groups and trade associations lobbied hard against the Final Rule both in written comments and in live testimony during public hearings in April 2014, arguing that the Final Rule will only serve to intrude on an employer’s and employee’s free speech rights.  

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​Despite the thousands of public comments filed and dozens of organizations who provided testimony supporting the current procedures, the NLRB majority sided with unions and continued its clear labor-friendly agenda.  The end result is that the Final Rule will expedite the union election process, which will only serve to spur new organizing campaigns leaving employers little to no time to respond to a union’s petition for representation.  The Final Rule makes is more important than ever for employers to have a proactive plan and strategy in place well before any union petition is filed, so that employees are well aware of management’s position to unionization in advance.  

This last legislative session in California has produced over 20 new employment laws mostly slated to take effect on January 1, 2015.  These laws run the gamut, from mandating paid sick leave to expanding coverage under the workplace discrimination and harassment laws.  California cities have waded into the employment arena as well by increasing the minimum wage and enacting other employment ordinances such as San Francisco’s Retail Workers Bill of Rights and local measures by the Cities of Los Angeles and Oakland impacting the hospitality industry. 

Starting on February 26, 2015, District of Columbia employers must provide written notice upon hiring to all new employees containing the following information pursuant to the Wage Theft Prevention Amendment Act of 2014 (the “Act”):

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• The employer’s name and any “doing business as” names;

• The physical address of the employer’s main office or principal place of business, and a mailing address, if different;

• The employer’s telephone number;

• The employee’s rate of pay and the basis of that rate, including by the hour, shift, day, week, salary, piece, commission, any allowances claimed as part of the minimum wage, including tip, meal or lodging allowances, or overtime rate of pay, exemptions from overtime pay (which may require employers to list the specific exemption), living wage, exemptions from the living wage, and the applicable prevailing wages;

• The employee’s regular payday designated by the employer; and

• Any other information the Mayor considers to be material and necessary.

On the heels of its recent litigation against several companies for allegedly non-compliant wellness programs, the Equal Employment Opportunity Commission (“EEOC”) has finally promulgated a proposed rule to address a long-standing unknown for employers – how does one implement a wellness program that complies with the Americans with Disabilities Act (“ADA”)? The answer provided in its proposed rule as revealed on April 16, 2015, is still somewhat unclear and may change before the regulations become controlling law. But the rule does provide some guidance as to, at least, the EEOC’s interpretation of a voluntary, compliant wellness program. This is significant because the EEOC has been very active recently in prosecuting those employers it believes have instituted non-compliant programs.

In August and September of 2014, the EEOC filed two federal lawsuits against employers charging that the manner in which they implemented their wellness programs effectively compelled employee involvement because of the consequences for non-participation. Even more recently, the EEOC attempted to obtain an injunction to stop another employer from operating a wellness program that would penalize employees who did not participate in biometric testing, but the court refused to grant such a restraint. Now the EEOC looks to impact employer wellness programs through regulations. Principally, the proposed rule explains (1) when it will be applicable and why the ADA applies to wellness programs; and (2) when a wellness program will be considered voluntary and, thus, compliant.

Yesterday, August 27, 2015, the National Labor Relations Board (“the Board”) “refined” its standard for determining joint-employer status pursuant to its decision in the Browning-Ferris Industries case.  In a 3-2 party-line decision, the NLRB reversed an August 2014 ruling that found Leadpoint Business Services Inc. to be the sole employer of the workers at the BFI recycling facility where the local Teamsters union attempted to organize.  As part of its reversal, the Board announced a new joint-employer standard that is significantly broader and more inclusive than the standard the Board has upheld for the past 30 years.

In its “restatement” of the legal standard, the Board explained that it may find two or more entities are joint employers if (1) they are both employers within the meaning of the common law and (2) they share or codetermine those matters governing the essential terms and conditions of employment.  In evaluating the control an entity has over essential terms and conditions of employment, the Board will assess the actual exercise of direct and/or indirect control, as well as determine whether such control has been reserved by the entity in question.  To make this determination, the Board will consider, for example, whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary or whether it has reserved the authority to exercise such indirect influence.  The Board also took an inclusive approach in defining the terms and conditions of employment to mean dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; assigning work; and determining the method and manner of work among other considerations related to hiring, firing, supervision, and wages/hours.

As advised in our previous Client Alert (available here), starting on May 27, 2015, the Wage Theft Prevention Amendment Act of 2014 (the “Act”) will require District of Columbia employers to provide written notice to all DC employees containing, among other things, the employee’s rate of pay and the basis of that rate.