THE LAST 60 DAYS OF ACTION IN EMPLOYMENT LAW

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Patricia Tsipras

June 2, 2020 Download as PDF

Federal

On May 20, 2020, the United States Department of Labor (DOL) revised its regulation for computing overtime compensation of salaried nonexempt employees who work hours that vary each week (fluctuating workweek) under the Fair Labor Standards Act (FLSA).  The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method of compensation, and that such payments must be included in the calculation of the regular rate as appropriate under the FLSA.  The Department also added examples and made minor revisions to make the rule easier to understand.  The final rule becomes effective in July 2020. See final rule here.

On May 7, 2020, the Equal Employment Opportunity Commission determined that, due to the COVID-19 pandemic,[1] it will not collect EEO-1 data for 2019 this year, but it will collect data for calendar years 2019 and 2020 in March 2021.  See EEOC press release here.

For all new hires after April 30, 2020, employers are required to complete the United States Citizenship and Immigration Service’s new Form I-9.  The new version contains minor changes to the form and its instructions.  The instructions include clarifications on acceptable documents to establish work authorization and identity.  The instructions also contain additional details on who can complete a Form I-9 as an authorized representative of an employer.  Download the form here.

The National Labor Relations Board’s final version of its joint employment test, reinstating the pre-Obama-era standard that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers, became effective on April 27, 2020.  See 85 FR 11184.

On April 6, 2020, the United States Supreme Court held that adverse personnel decisions involving Federal employees over the age of 40 are actionable under the Age Discrimination in Employment Act when age is merely a consideration and not the determining factor.  See Babb v. Wilkie, 589 U.S. ___ (2020); see also Rubin Fortunato’s Client Alert on this topic, SCOTUS Lowers the Boom on But-Form Causation Under the ADEA for Federal Employees.

On April 1, 2020, the Families First Coronavirus Response Act became effective.  The Act requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.  Its provisions will apply through December 31, 2020.  See Rubin Fortunato’s Client Alert for more details, The Families First Coronavirus Response Act.

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act.  The relief package includes hundreds of billions of dollars each in:

(1) direct payments to eligible taxpayers;

(2) expanded unemployment insurance;[2]

(3) funds for state and local governments; (4) expanded lending for businesses and local governments; (5) new loans and grants for small businesses; and (6) funds for hospitals for ventilators and other equipment.  See Pub. L. 116-136.

Colorado

On April 27, 2020, the Colorado Department of Labor and Employment amended its Health Emergency Leave with Pay (HELP) Rules, which require certain employers to provide employees paid sick leave for a covered COVID-19 reason.  These amendments are the third set of changes since the HELP Rules were enacted on March 11, 2020.  Covered Employers:  The Rules previously covered the fields of leisure and hospitality, food and beverage manufacturing, food services, retail establishments that sell groceries, child care, education, home health care, nursing homes, and community living facilities.  The amended Rules expand the covered fields to include retail (other than establishments that sell groceries), real estate and leasing, offices and office work, elective health services, and personal care services.  Amount of Leave Employees Can Use:  Previously, employers were required to provide up to four days of paid sick leave.  Any leave provided under the original Rules counts towards the new required maximum leave of two weeks (80 hours).  Reasons for Which Leave Can Be Used:  Employees can take leave if they have flu-like (or now respiratory illness) symptoms and are being tested for COVID-19, or if they are under instructions from a health care provider (or now an authorized government official) to quarantine due to risk of having COVID-19.  When Leave Ends:  Under the original Rules, leave ended when an employee received a negative COVID-19 test.  Now, employees are entitled to leave until they get a negative test; they are fever-free for 72 hours; and their other symptoms have resolved.  However, leave cannot end before an employee has been off for at least seven calendar days, or 10 calendar days for health care workers.  Documentation:  The amended Rules state that employees can provide a self-drafted written statement, instead of documentation from a health care provider, to justify an absence.  Rate of Pay:  Previously, employers were required to pay employees for up to four days at 100 percent of their regular rate of pay.  Now, employers must provide up to 80 hours of leave at two-thirds of an employee’s regular rate of pay.  See the Rule documents and FAQs here.

On April 26, 2020, Colorado’s Governor Polis ordered that employers must accommodate vulnerable individuals with telework whenever possible, and cannot require them to return to work if their work requires close proximity to others.  “Vulnerable individuals” include those over age 65; those with chronic lung disease or moderate to severe asthma; those with serious heart conditions; those who are immunocompromised; pregnant women; and individuals determined to be high risk by a licensed healthcare provider.  Employers also must provide reasonable accommodations and are prohibited from discriminating against employees showing symptoms of COVID-19 or employees who have been in contact with a known positive case of COVID-19.  Additionally, employers must accommodate workers with childcare responsibilities and those who live with a vulnerable individual to the greatest extent possible by promoting telecommuting, flexible schedules, or other means.  See Executive Order D 2020 044.

Connecticut

On April 7, 2020, Connecticut Governor Lamont ordered that any business that is essential or otherwise permitted to operate must follow certain protective measures for the workplace including, among other things, teleworking, travel restrictions, social distancing, protective masks, and cleaning.  See Executive Order No. 7V.

 District of Columbia

On April 10, 2020, the District of Columbia enacted the COVID-19 Response Supplemental Emergency Amendment Act of 2020.  The Act amends the Accrued Sick and Safe Leave Act of 2008 and requires employers who employ between 50 and 499 employees to provide paid declared emergency leave, up to 80 hours for full-time employees or the usual number of hours worked in a two-week period for a part-time employee, for any reason allowed by the Families First Coronavirus Response Act.  See D.C. Act 23-286.

Indiana

On March 30, 2020, Indiana enacted legislation to require that enforceable physician non-competition agreements effective on or after July 1, 2020, contain certain provisions.  “Physicians” are defined as “any person who holds the degree of doctor of medicine or doctor of osteopathy or its equivalent and who holds a valid unlimited license to practice medicine or osteopathic medicine in Indiana.”  The required provisions include:

  1. a provision requiring the employer to provide the physician with a redacted copy of any notice that the employer sent to patients of the physician seen or treated during the two years prior to the termination of the physician’s employment or the end of the physician’s contract concerning the physician’s departure from the employer;
  2. a provision requiring the employer to provide the physician’s last known contact and location information to patients that the physician has seen or treated during the two years prior to the termination of the physician’s employment or the end of the physician’s contract if requested by such a patient;
  3. a provision providing the physician access to or copies of any medical records associated with a patient that the physician has seen or treated during the two years prior to the termination of the physician’s employment or the end of the physician’s contract upon receipt of patient consent;
  4. a provision providing the physician with an option to purchase a release from the terms of the enforceable physician non-compete agreement at a reasonable price; and
  5. a provision prohibiting the employer from providing patient medical records to the physician in a format materially different from the ordinary course of business, unless the records are produced in paper, portable document format, or as otherwise mutually agreed upon by the parties.

See Pub. L. No. 93-2020.

Maryland

On May 7, 2020, Maryland amended its Economic Stabilization Act to require employers that employ at least 50 employees to provide 60 days’ written notice to employees, as well as to continue health, pension, severance, and/or other benefits, before implementing a reduction in operations affecting 15 or more employees.  A “reduction in operations” under Maryland law, which is broader than the triggering events under the Federal WARN statute, includes (1) a relocation of part of an employer’s operations; and (2) the shutdown of a workplace, or portion of operations, that reduces the number of employees by at least 25% or 15 employees, whichever is greater, over any three-month period.  The amendment empowers the state secretary of labor to issue both orders compelling compliance and fines for violations of the notice requirement.  The law becomes effective October 1, 2020.  See 2020 Md. S.B. 780.

Michigan

On April 3, 2020, Michigan Governor Whitmer signed Executive Order 2020-36, which expands the protections of Michigan’s Paid Medical Leave Act (PMLA) until the end of the declared state of emergency stemming from the COVID-19 pandemic.  The Executive Order extends the protections of PMLA to employees working for employers with fewer than 50 employees and to periods of time after an employee has exhausted accrued paid medical leave under the PMLA.  An employee who tests positive for COVID-19 or who displays one or more principal symptom may take a leave of absence from work until three days have passed since symptoms have resolved and seven days have passed since symptoms first appeared or since the employee was swabbed for the test.  An employee who has had close contact with an individual who tests positive for COVID-19 or displays one or more principal symptom may take a leave of absence from work until either 14 days have passed since close contact with the individual or the individual receives a negative test.  Healthcare professionals, workers at healthcare facilities, first responders, child protective service employees, workers at child caring institutions, and workers at correctional facilities are not included to the extent they have had close contact with individuals who have tested positive for COVID-19 or who display one or more principal symptoms.  The Executive Order also prohibits retaliation against workers who are particularly at risk of infecting others at work.  An employee is particularly at risk of infecting others at work if the employee tests positive for COVID-19; displays one or more of the three principal symptoms of COVID-19; had close contact with an individual who tests positive for COVID-19; or had close contact with an individual who displays one or more COVID-19 symptoms.  See Executive Order 2020-36.

New Jersey

Effective May 20, 2020, New Jersey amended its Temporary Disability Benefits Law to provide job protection for an individual who takes leave for “a period of disability” resulting from the donation of any organ or bone marrow.  See 2018 NJ A.B. 1449.

On April 14, 2020, New Jersey amended the New Jersey Family Leave Act and the Temporary Disability Benefits Law.  The amendments, which are retroactive to March 25, 2020, expand job protections for employees who need to take leave and receive benefits due to COVID-19.  The New Jersey Family Leave Act allows for protected leave of up to 12 weeks in a 24-month period if, as a result of a state of emergency (or when indicated by a public health authority) caused by an epidemic of a communicable disease, like COVID-19, an employee is required to care for their child whose school or place of child care is closed; to care for a family member as a result of illness caused by COVID-19 or exposure to it; or to care for a family member who, under the recommendation of a health care provider or public health authority, voluntarily self-quarantines due to suspected exposure to COVID-19.  The New Jersey Temporary Disability Benefits Law’s definitions have been expanded so that, during a Governor-declared state of emergency or when recommended by a public health authority, the definition of disability includes an illness caused by a communicable disease, like COVID-19, a known or suspected exposure to it, or efforts to prevent spread of the disease, which requires in-home care or treatment of the employee as a result of the determination by public health authority or health care provider that the employee is at risk of jeopardizing the health of others; and the direction of the authority or provider that the employee be quarantined due to suspected exposure.  Moreover, the definition of “family temporary disability leave” has been amended to include in-home care or treatment of a family member under the above circumstances.  See 2020 N.J. SB 2374.

On April 14, 2020, and effective retroactively to March 9, 2020, New Jersey amended its mini-WARN to alleviate some of its burdens and delay some other amendments in light of COVID-19.  First, New Jersey amended the definition of “mass layoff” to exclude layoffs due to national emergencies, among other events.  Thus, mass layoffs resulting from the COVID-19 pandemic do not trigger the notice requirements of NJ WARN.  Second, certain amendments to NJ WARN will not take effect until 90 days after the termination of the Governor’s Executive Order.  Most notable among the delayed amendments is (1) the requirement that employers pay impacted employees one week of severance for each year of service; (2) the increase in the notice period from 60 to 90 days; (3) the lower 50-employee mass layoff threshold (regardless of the percentage of the workforce impacted); and (4) the expanded definition of “establishment.”  See 2020 N.J. SB 2353.

On March 25, 2020, New Jersey made permanent amendments to its sick leave, family leave, and disability laws to increase coverage in public health emergency situations.  The expanded bill would make the benefits available to people who have to self-quarantine or care for loved ones because of COVID-19.  The law also permits the use of earned sick time for isolation or quarantine as a result of suspected exposure to a communicable disease, or to care for a family member under recommended or ordered isolation or quarantine.  See 2020 NJ S.B. 2304.

New Mexico

Effective May 20, 2020, New Mexico enacted a law limiting the use of nondisclosure provisions in settlement agreements involving claims of workplace harassment, discrimination, and retaliation.  See 2020 NM H.B. 21.

 New York

Effective May 10, 2020, New York City amended its Human Rights Law to prohibit employers from testing job applicants for marijuana.  See NYC Administrative Code 8-107, subd. 31.

On April 27, 2020, Suffolk County, New York enacted a ban-the-box law prohibiting pre-employment inquiries into an applicant’s criminal conviction history and the consideration of criminal history at the initial application phase.  The law becomes effective on August 25, 2020.  See Suffolk County Local Law No. 14-2020.

On April 12, 2020, New York Governor Cuomo ordered that employers deemed essential businesses must provide face coverings, at their own expense, for their employees.  Face coverings must be worn by any employee in the workplace when in direct contact with customers or members of the public.  See Executive Order No. 202.16.

In 2019, New York amended its voting law to require employers to provide employees up to three hours of paid leave to enable them to vote in primary and general elections.  Effective April 3, 2020, New York amended its law again to require employers to provide employees up to two hours of paid voting leave if the employee does not have sufficient time to vote.  An employee is deemed to have “sufficient time to vote” if s/he has four consecutive hours to vote either from the time the polls open to the beginning of the work shift, or four consecutive hours between the end of a working shift and the time the polls close.  See NY S.B. 7506.

On April 3, 2020, New York passed a law requiring all private employers to provide paid sick leave.  The amount of leave and whether the leave is paid or unpaid depends on the size and net income of the employer (four or fewer employees and net income of $1 million or less = 40 hours of unpaid sick leave per calendar year; four or fewer employees and net income of greater than $1 million = 40 hours of paid sick leave; five to 99 employees = 40 hours of paid sick leave; 100 or more employees = 56 hours of paid sick leave).  Employees accrue leave at a rate of not less than one hour for every 30 hours worked.  Employees begin accruing leave on September 30, 2020, and can begin taking leave on January 1, 2021.  Employers are not required to pay unused sick leave upon termination of the employment relationship.  See 2020 NY S.B. 7506; see also 2020 NY S.B. 8091, which was enacted in March and relates to leave for COVID-19-related reasons.

North Carolina

On April 20, 2020, North Carolina Governor Cooper ordered that employers may provide employees who have been temporarily furloughed due to the economic or public health impacts of COVID-19 with COVID-19 Support Payments.  The payments must be made pursuant to a COVID-19 Support Payment Plan that the employer has provided to the North Carolina Division of Employment Security.  The plan is not a promise by the employer to make the payments listed in the plan, nor are the payments and the plan promises by the employee to return to work for the employer.  See Executive Order No. 134.

Oregon

Effective March 27, 2020, through September 22, 2020, the Bureau of Labor and Industries has issued a temporary rule that provides that employers involved in manufacturing products that reasonably result in the preservation of life and property may seek an exemption to the 55-hour maximum workweek for their employees.  Employers must provide notice to the Bureau within seven days of permitting employees to work more than 55 hours in one workweek, as well as obtain written consent from each employee who will work more than 55 hours in a workweek during the emergency exemption period.  Employers claiming a written exemption must (1) pay employees one and one half their regular rates of pay for hours worked in excess of 40 hours a week; (2) not allow employees to work more than 13 hours in a day or more than 91 hours in one workweek; and (3) provide employees with adequate meal and rest breaks and use of the restroom.  See Or. Admin. R. 839-001-0126.

Pennsylvania

Effective May 1, 2020, the City of Philadelphia enacted a Domestic Worker Bill of Rights that requires domestic workers to have a written contract that defines their job duties, schedule, hourly and overtime wages, meal and rest periods, time off, and other benefits.  See Philadelphia Code § 9-4501, et seq.

On April 19, 2020, Pennsylvania Department of Health Secretary Levine issued an Order applicable to businesses that are authorized to maintain in-person operations, other than healthcare providers, which includes social distancing, mitigation, and cleaning protocols with which businesses must comply.  See the Order here.

South Carolina

On April 7, 2020, South Carolina Governor McMaster issued an Executive Order allowing employers to provide employees who have been temporarily furloughed due to the economic or public health impacts of COVID-19 with COVID-19 Support Payments.  The payments must be made pursuant to a COVID-19 Support Payment Plan that the employer has provided to the South Carolina Department of Employment and Workforce.  See Executive Order 2020-22.

 Tennessee

On May 14, 2020, American Arbitration Association arbitrator and former Tennessee Supreme Court Justice Janice Holder upheld a non-competition agreement under Tennessee law in the pharmaceutical industry and held that sending a letter to the new company regarding the former employee’s restrictions did not amount to tortious interference.  See Alford v. Amgen USA, Inc., AAA Case No. 01-18-0003-7476.

Virginia

On May 21, 2020, Virginia enacted a law prohibiting employers from requiring applicants to disclose information related to any past arrest, charge, or conviction for simple marijuana possession.  The law becomes effective on July 1, 2020.  See 2020 Va. HB 972.

On April 22, 2020, Virginia enacted a law to increase its minimum wage to $12 per hour by 2023.  The first increase, from $7.25 to $9.50 per hour, will take effect on May 1, 2021.  See 2020 Va. S.B. 7.

On April 11, 2020, Virginia enacted the Values Act, which adds sexual orientation and gender identity to the list of protected characteristics under the Virginia Human Rights Act.  The law also creates new protections and private rights of action in places of public accommodation, housing, and credit on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and veteran status.  Furthermore, the Values Act rewrites the Human Rights Act’s private rights of action and remedies.  Previously, the Human Rights Act contained only a limited private right of action for unlawful discharge and limited a prevailing party’s remedies to 12 months of back pay plus interest and attorney’s fees capped at 25% of the back pay award.  The Values Act expands the rights of action to include all forms of discrimination and retaliation, like Title VII, its Federal counterpart.  The law also now states that courts may award prevailing employees “compensatory and punitive damages” and uncapped “reasonable attorney fees and costs,” among other non-monetary relief.  The new law will be effective on July 1, 2020.  See Va. S.B. 868.

On April 10, 2020, and effective on July 1, 2020, Virginia amended its Wage Payment Act to provide meaningful enforcement mechanisms.  The amendments provide employees with a right to sue in court to recover unpaid wages (a three-year limitations period exists and collective actions are permitted).  Previously, only the Virginia Department of Labor and Industry could file such actions.  A prevailing employee will be able to recover wages owed, as well as liquidated damages equal to double damages for all violations and treble damages for knowing violations, prejudgment interest, and reasonable attorney’s fees and costs.  See 2020 Va. S.B. 838.

On April 9, 2020, Virginia enacted a law prohibiting employers from entering into, enforcing, or threatening to enforce a restrictive covenant against a low-wage earner.  The law defines a “restrictive covenant” as a non-competition agreement and appears to continue to support an employer’s ability to protect confidential and proprietary information and trade secrets with non-disclosure and non-solicitation agreements.  The law defines low-wage earners as employees/independent contractors whose average weekly earnings are less than the average weekly wage of the Commonwealth (~$1,000), but excludes employees whose earnings are derived from sales commissions, incentives, or bonuses.  A private right of action now exists for employees to challenge or enjoin their restriction.  Successful employees are entitled to liquidated damages, lost compensation, and attorney’s fees.  Employers must post a notice in the workplace that summarizes the law.  The law becomes effective July 1, 2020, and does not apply retroactively.  See 2020 Va. S.B. 480.

On March 18, 2020, Virginia enacted a law to create a private right of action for employees whose employers knowingly misclassify them under the Fair Labor Standards Act and to protect employees or independent contractors from retaliation if they report misclassification.  The law becomes effective on July 1, 2020.  See 2020 Va. S.B. 894; 2020 Va. S.B. 662.

Washington

On April 13, 2020, Washington Governor Inslee proclaimed that, for high-risk employees (as that term is defined by the Centers for Disease Control and Prevention), employers are prohibited from (1) failing to use all available options for alternative work assignments, including, but not limited to, telework, remote work, reassignment, and social distancing measures; (2) where an alternative work arrangement is not feasible, failing to permit use of any available employer-granted accrued leave or unemployment insurance in any sequence at the discretion of the employee; (3) in the event the employee’s paid time off is exhausted during the period of leave, failing to fully maintain all employer-related health insurance benefits until the employee is deemed eligible to return to work; and (4) taking adverse employment action against an employee for exercising his or her rights under the proclamation that would result in loss of the employee’s current position by permanent replacement.  See Proclamation 20-46.

On March 26, 2020, Washington State amended its paid family leave law.  The key changes include – Waiting Period:  The law previously provided that the “waiting period” was unpaid.  It was unclear whether an employee could elect to receive employer-provided supplemental benefits during the waiting period.  The amendments make it clear that an employee may satisfy the waiting period while simultaneously receiving an employer’s “supplemental benefits,” which the amendments now define as vacation, personal, medical, sick, compensatory, or any other paid leave offered by an employer under the employer’s established policy.  The state will not reduce an employee’s leave benefits by the amount of the supplemental benefits.  The amendments also eliminated the waiting period for qualifying military exigencies.  Coverage:  The amendments expand the definition of “family member” to include a child’s spouse.  “Casual labor” – defined as work performed infrequently and irregularly, and if performed for an employer, does not promote or advance the employer’s customary trade or business – is exempted from coverage.  Violations:  A private right of action (including class actions), with a three-year limitations period, now exists in court for an employee who claims interference, retaliation, or discrimination.  Damages include lost wages, benefits, and other compensation lost due to the violation, as well as reasonable attorney’s fees and litigation costs.  Concurrent Worker’s Compensation:  Previously, all employees receiving worker’s compensation were disqualified from receiving leave benefits.  Employees receiving worker’s compensation benefits are now disqualified from receiving leave benefits only if the employees have a permanent or temporary total disability.

Conditional Waiver from Eligibility:  Previously, to receive a conditional waiver from leave premiums, an employee would have to be “physically based” outside of Washington.  The test now is whether the employee “primarily performs work” outside of the state.  Successive Related Periods of Leave:  The law formerly provided that successive periods of leave caused by the same or related injury or sickness were deemed a single period of family and medical leave only if separated by less than four months.  The amendments removed this requirement.  The amended definitions are effective immediately, while the other provisions become effective on June 11, 2020.  See 2020 WA H.B. 2614.

On March 19, 2020, Washington amended its Law Against Discrimination to prohibit discrimination based on traits historically associated or perceived to be associated with race, including hair texture and protective hairstyles.  The amendment is effective on June 10, 2020.  See 2020 WA H.B. 2602.

 

[1] With respect to COVID-19, this newsletter addresses Federal and State responses.  Counties and cities also may have enacted laws that are not addressed herein.

[2] In addition, many states have, among other things, (1) expanded unemployment eligibility; (2) waived waiting periods; (3) waived work search requirements; and (4) determined that claims will not be charged against employer account or experience rating.

 
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