Employment, Labor & Benefits

Months into the COVID-19 pandemic, many employer telecommuting arrangements remain in place, with several large corporations opting to extend these arrangements well into 2021. The benefits of such arrangements have been clear for many employers during the pandemic, including that they permit continued productivity while keeping employees safe. However, the longer that employees remain out of the office, the more telecommuting-related issues arise, including with respect to taxation of employee income and leave requirements, which we discuss below.

With the presidential election less than a month away, it is more important than ever that employers proactively manage their work environment to protect against the potential pitfalls that can arise when political discussions occur in the workplace. The new remote working environment in which many employers find themselves only adds a layer of complexity to this challenge. We discuss this difficult issue further below.

California has enacted the nation’s first diversity mandate for public company boards. As we previously reported, the new law (AB 979) builds upon California’s first- in-the nation statutory gender mandate for public company boards.

The New York State Paid Sick Leave Law’s accrual provisions go into effect today, September 30, 2020.  In April, Governor Cuomo signed into law new permanent paid sick leave requirements for all New York State employers (separate from COVID-19 leave which was passed in March and went into effect immediately).  Employees may begin using sick leave for purposes consistent with the law on January 1, 2021.  Although we expect the New York State Department of Labor to issue guidance or regulations on the new law, the agency has not done so to date.  We will continue to monitor for any updates. 

Meanwhile, the New York City Council swiftly passed an updated Sick and Safe Time law to align the City’s law more closely with the New York State sick leave law.  But there are some important differences with the State’s sick leave law.

Our full analysis of New York State’s new paid sick leave law can be found here.  More information on the City’s updated sick leave law, which also went into effect today, is addressed further below. 

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.

The Department of Labor has again updated its guidance regarding the Families First Coronavirus Response Act ("FFCRA"). 
Below we summarize the DOL’s interpretative guidance, and note in bold where the DOL has either reaffirmed or changed its guidance in light of the federal court decision.  As a reminder, the law expires on December 31, 2020. 

The reopening of schools during the COVID-19 pandemic continues to present challenges for working parents and the businesses that employ them. Not surprisingly, a one-size-fits-all approach for employers to appropriately manage working parents is likely difficult, if not impossible, to craft. In this post, we highlight some of the risks employers may face while offering some guidance regarding best practices to address these risks.

California has amended its independent contractor law to make more jobs and professions exempt from the “ABC” test that AB 5 codified last year.  Governor Newsom signed the amendment into law on September 4, 2020. It becomes effective immediately. See the changes made to the law.

Under the Massachusetts Paid Family Leave Law, M.G.L. c. 175M (“MAPFML ”), employees and other covered individuals in the Commonwealth will be entitled to a generous set of new leave benefits and rights beginning January 1, 2021. On July 24, 2020 , the Department of Family and Medical Leave (the Department) issued updated MAPFML regulations effective July 24, 2020 (the “2020 Regulations”). These regulations make several key changes to the MAPFML regulations issued in 2019 (the “2019 Regulations”). In our companion post, we cover the key changes between the 2019 Regulations and the 2020 Regulations. This post examines, in depth, changes affecting the MAPFML “Private Plan” exemption pathway.

Under the Massachusetts Paid Family Leave Law, M.G.L. c. 175M (“MAPFML”), employees and other covered individuals in the Commonwealth will be entitled to a generous set of new leave benefits and rights beginning January 1, 2021. The Department of Family and Medical Leave (the “Department”) recently issued updated MAPFML regulations, effective July 24, 2020 (the “2020 Regulations”). These regulations make several key changes to the MAPFML regulations issued in 2019 (the “2019 Regulations”). In our companion post, we cover the key changes between the 2019 Regulations and the 2020 Regulations. This post examines, in depth, changes affecting the MAPFML “Private Plan” exemption pathway.

A New York federal judge recently struck down certain aspects of the U.S. Department of Labor’s (“DOL”) Final Rule and accompanying guidance interpreting leave entitlements under the Families First Coronavirus Response Act (“FFCRA”). This decision increases the number of employees eligible for COVID-19-related leave, and will require employers to revisit their leave administration policies and procedures. However, it’s is unclear at this time whether New York will request the Court impose a nationwide injunction or injunctive relief that extends only to New York employers.

As employees increasingly transition back into the physical workplace, employers have begun to grapple with whether and how to deploy COVID-19 diagnostic testing as a return-to-work solution. Many employers want to avoid extended employee quarantine or isolation requirements that prevent their employees from returning to the office for weeks and disrupt their operations. But is this potential solution legal? And is it effective? Below we discuss practical considerations for employers considering a return to work COVID-19 testing strategy.

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.

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.