Employment

Key Parts of DOL FFCRA Guidance Invalidated by New York District Court

August 11, 2020 | Blog | By Delaney Busch

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.

Return to Work COVID-19 Testing Considerations

August 10, 2020 | Blog | By Danielle Bereznay, Michael Arnold, Corbin Carter

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.

New York State Judge Allows Sexual Harassment Claim to Proceed in Court, Invalidating Arbitration Agreement

July 29, 2020 | Blog | By Corbin Carter, Michael Arnold

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.

Vaccinate or Terminate – Mandatory Vaccination As Workplace Policy

July 28, 2020 | Blog | By Jennifer Rubin

Massachusetts Offices are Subject to Mandatory Screening as Part of Phase III Reopening

July 8, 2020 | Blog | By Danielle Bereznay

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.

Thoughts for Employers Celebrating Juneteenth for the First Time

June 19, 2020 | Blog

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.

Temperature Checks May Add Privacy Notice Obligations for California Businesses

June 17, 2020 | Blog | By Jennifer Rubin, Cynthia Larose

Supreme Court Rules That Title VII Protects LGBTQ Employees

June 16, 2020 | Blog | By Corbin Carter, Michael Arnold

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.

OSHA Updates COVID-19 Recordkeeping Guidance

June 3, 2020 | Blog | By David Barmak

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.

Executive Compensation: Moving Forward in a COVID-19 World

June 2, 2020 | Blog | By Alexander Song, Anne Bruno, Michael Arnold, Steve Gulotta, Andrew Bernstein

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.

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Massachusetts Releases Reopening Plan & Business Requirements

June 1, 2020 | Blog | By Andrew Matzkin

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.

Updated CDC Guidance: COVID-19 Employer Information for Office Buildings

June 1, 2020 | Blog | By Delaney Busch

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.

New York State Releases Reopening Guidance for Phase 2 Businesses

May 31, 2020 | Blog | By Corbin Carter, Michael Arnold

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.

The CDC Warns Against Using Antibody Testing Results to Make Workplace Decisions

May 29, 2020 | Blog | By Corbin Carter

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.

DOL Withdraws FLSA Inside Sales Exemption Lists

May 22, 2020 | Blog

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.

The SBA Issues Forgiveness Application and Guidance for the Paycheck Protection Program: What Employers Need to Know

May 21, 2020 | Blog | By David Lagasse

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.

Part Ten of the COVID-19 Roadmap Series: Workplace Communications and Trainings

May 20, 2020 | Blog | By Danielle Bereznay

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.”

Part Nine of the COVID-19 Roadmap Series: Ensuring Compliance – Leave Management

May 18, 2020 | Blog | By Corbin Carter, Natalie C. Groot, Michael Arnold, Andrew Matzkin

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.

Part Eight of the COVID-19 Roadmap Series: Avoiding COVID-19 Wage & Hour and Labor Law Pitfalls

May 15, 2020 | Blog | By Delaney Busch, Brendan Lowd

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.

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August 11, 2020 | Blog | By Delaney Busch

August 10, 2020 | Blog | By Danielle Bereznay, Michael Arnold, Corbin Carter

July 29, 2020 | Blog | By Corbin Carter, Michael Arnold

July 28, 2020 | Blog | By Jennifer Rubin

July 8, 2020 | Blog | By Danielle Bereznay

June 19, 2020 | Blog

June 17, 2020 | Blog | By Jennifer Rubin, Cynthia Larose

June 16, 2020 | Blog | By Corbin Carter, Michael Arnold

June 3, 2020 | Blog | By David Barmak

June 2, 2020 | Blog | By Alexander Song, Anne Bruno, Michael Arnold, Steve Gulotta, Andrew Bernstein

June 2, 2020 | Blog | By Andrew Matzkin, Kaitlin R. Walsh, William Kannel

June 1, 2020 | Blog | By Andrew Matzkin

June 1, 2020 | Blog | By Delaney Busch

May 31, 2020 | Blog | By Corbin Carter, Michael Arnold

May 29, 2020 | Blog | By Corbin Carter

May 22, 2020 | Blog

May 21, 2020 | Blog | By David Lagasse

May 20, 2020 | Blog | By Danielle Bereznay

May 18, 2020 | Blog | By Corbin Carter, Natalie C. Groot, Michael Arnold, Andrew Matzkin

May 15, 2020 | Blog | By Delaney Busch, Brendan Lowd

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