Employment, Labor & Benefits

A New York State Trial Court judge recently ruled that an agreement between a company and an employee to arbitrate sexual harassment claims was unenforceable due to 2018 amendments to New York State’s Human Rights Law, which prohibit such arrangements. The decision creates a split in authority, as a 2019 decision by a judge in the Southern District of New York – a federal court – upheld the enforceability of such arbitration agreements, ruling that the Federal Arbitration Act (“FAA”) preempts the New York statutory prohibition. This decision also now creates some uncertainty around the viability of arbitration agreements in New York where employees agree to arbitrate discrimination claims. We summarize the decision below.

On July 6, Massachusetts moved into Phase III of its reopening plan, which allows many businesses and offices spaces to return to the physical workplace. With Phase III comes a new mandatory safety standard: screening employees for COVID-19 or close contact at the beginning of each shift. While the Office Spaces Safety Standards are geared toward office workplaces, we interpret this requirement to encompass an employer’s obligations to both employees and visitors to the office.

As the national conscience has elevated after the death of George Floyd regarding social justice and racial equality, many employers have begun to self-reflect on their own standing with communities of color and the Black community specifically. For many companies, the diversity and inclusion function has taken center stage to process concerns, facilitate trainings and determine metrics for progress. The recognition that more needs to be done on racial equity inside and outside the workplace has led to a record number of companies providing recognition of Juneteenth – a historic day for many African-Americans celebrating the reading of federal orders in Galveston, Texas on June 19, 1865, which proclaimed slaves to be free.

Whether it is a company recognizing this event by initiating a new diversity action plan, facilitating a day of self-education and reflection on racial progress, or giving staff some form of PTO, here are some of my thoughts related to Juneteenth.

Updated: The EEOC has provided employers with supplemental guidance on navigating the COVID-19 outbreak, addressing issues such as COVID-related harassment and screening employees who are reporting to work. The EEOC reminded employers that while the anti-discrimination laws, including the ADA and the Rehabilitation Act, continue to apply during the COVID-19 pandemic, these laws do not interfere with, or prevent employers from following, the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19.

In a landmark opinion, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from employment discrimination. The Court’s holding will have major implications for employers and LGBTQ employees in dozens of states where state and/or local law did not already prohibit discrimination on the basis of sexual orientation or transgender status.

On May 19, 2020, the Occupational Safety and Health Administration ("OSHA") issued new interim guidance on recordkeeping for COVID-19 cases in the workplace.  Effective May 26, 2020, this guidance supersedes the April 10, 2020 guidance and supplements OSHA's March COVID-19 guidance on safeguarding the workplace against virus-related threats. We examine OSHA’s recommendations on both fronts in this post.

Employers reacted in a variety of ways to cope with the unprecedented financial impact of COVID-19.  Employers must begin to shift their focus to whether their current executive compensation practices are designed with sufficient incentives to retain key employees and to spur recovery and sustained growth.  This post reviews the range of cost-cutting measures companies have enacted over the past few months, and provides guidance on executive compensation issues employers should consider as they move forward in a COVID-19 world.

Businesses in a wide range of industries may now be forced to consider bankruptcy given the unprecedented economic challenges caused by the COVID-19 pandemic. This advisory is designed to provide a high-level view of issues to be considered by human resources when considering filing for Chapter 11 bankruptcy.

Last week, the Centers for Disease Control and Prevention (the “CDC”) issued updated guidance detailing steps employers and office building managers should take prior to reopening. This guidance follows the beginning stages of most states’ business reopening efforts. The guidance focuses on four major topics: Evaluation of the Workspace, Assessment of Risk, Implementation of Workplace Controls, and Education.  In short, the guidance encourages employers to evaluate and address potential COVID-19 related hazards, and provides steps businesses can take to minimize exposure or transmission once their doors are opened. This new guidance echoes and supplements the CDC’s previous interim guidance as well as OSHA guidance, particularly with respect to the implementation of hazard controls.[1]  We summarize significant portions of the CDC’s updated guidance in this post.

Massachusetts has unveiled its plan to reopen from the shutdown enacted in response to the COVID-19 outbreak. This plan was formalized on May 18th in Governor Baker’s “Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19” (the “Order”). The reopening plan is divided into four flexible phases, each lasting a minimum of three weeks, although a resurgence of the virus could necessitate a return to an earlier phase of the plan and extend the reopening timeline.

Many Massachusetts businesses now have concrete guidance on the measures they are required to complete before reopening their workplaces, and a tentative timeline on when they might be able to reopen. Businesses must meet the required Mandatory Safety Standards for Workplaces (the “Safety Standards”) in order to reopen. Currently, only the Phase 1 standards have been released, with the release of other phase standards to follow as the plan progresses. In addition, as the plan progresses, the requirements for businesses in earlier phases will likely be updated as the public health emergency develops. Businesses should track updates from Massachusetts authorities going forward, including guidance from local jurisdictions.

New York State has issued industry-specific interim guidance for “Phase 2” businesses, which includes a number of “minimum requirements” certain businesses must meet before reopening their workplaces in light of COVID-19. The new Phase 2 guidance provides specific guidelines relating to office-based jobs (excluding medical offices); real estate services; select in-store retail; commercial building management; retail rental, repair and cleaning services; and vehicle sales, leases and rentals.  Importantly, this new guidance applies to “non-essential” businesses in these industries where regions are permitted to reopen, as well as “essential” businesses throughout the state that were previously permitted to remain open.  As various regions begin progressing through the reopening phases under the New York Forward initiative, businesses should become thoroughly familiar with these new obligations and begin taking steps toward achieving compliance.

This week, the Centers for Disease Control and Prevention (the “CDC”) released interim guidelines addressing COVID-19 antibody testing. The CDC expressed concerns about the current accuracy of antibody testing and advised businesses against using the results of antibody testing (also known as serologic testing) to make any decisions about returning workers to the workplace.

The U.S. Department of Labor (“DOL”) issued a new final rule on May 19, 2020 recasting the Fair Labor Standard Act’s (“FLSA”) inside sales exemption, Section 7(i). This new rule – which took effect immediately – repeals two lists that the DOL used for decades to interpret the exemption. The first list categorized businesses which lacked “retail concept,” thus disqualifying the business from the exemption; the second list denoted establishments which “may be recognized as retail.” Now, in lieu of operating from these static lists, the DOL will instead evaluate businesses on a case-by-case basis to determine if they qualify for the exemption. The withdrawal of these lists expands the inside sales exemption to cover many industries and businesses that were categorically unable to qualify for the exemption under the previous rules.

On Friday, May 15, 2020, the Small Business Administration, in consultation with the U.Sh Department of the Treasury, released the Paycheck Protection Program (PPP) Loan Forgiveness Application. The application is accompanied by instructions on how to complete the application. Together, the application and the instructions answer a number of ambiguities about whether and how an employer will be able to receive forgiveness of all or a portion of a loan received under the PPP.

In the final part of our Roadmap Series, as employers prepare to transition to on-site operations for segments of their staff, we discuss considerations for COVID-19 related communications to the workforce. We also address the importance of conducting workplace trainings for managers and staff that address new regulatory considerations for workplace safety, telecommuting arrangements, health screenings, and leave and accommodation requests to prepare for the “new normal.”

As management and human resources professionals are well aware, COVID-19 has drastically and rapidly impacted the workplace. Among other things, employees require more flexibility, employers are increasingly reliant upon remote work arrangements, and legislative and administrative responses to the pandemic from various levels of government have created new requirements for businesses, including new leave entitlements for employees. In Part Nine of our Roadmap Series, we explore key considerations surrounding leave management and compliance as employees and businesses navigate this new terrain.

In Part Eight of our Roadmap Series, we take a closer look at wage and hour compliance concerns that may arise during the COVID-19 pandemic, and what employers can do to minimize these pitfalls.

Remember that wage and hour concerns, and how to properly address them, will often depend on whether a company is dealing with exempt employees (i.e., employees not entitled to overtime pay regardless of the number of hours worked in a day or week) or non-exempt employees (i.e., employees entitled to overtime pay if the employee works more than eight hours a day or forty hours in a week, depending on the state). This critical distinction will largely govern how employers should consider and plan for the issues described below.

Facing the many challenges posed by the COVID-19 pandemic, employers are considering their obligations to their workforce in the event of a reduction in force related to COVID-19 (“COVID-19”). This post provides an overview of an employer’s WARN Act obligations in the event a COVID-19-related closure or reduction in force.