In the last several years, a growing number of states and municipalities have passed “ban the box” laws that to varying degrees prohibit employers from inquiring into a job applicant’s criminal background until later in the hiring process and/or restrict employers from using certain criminal conviction information in connection with their hiring decisions. Recently, St. Louis, Missouri joined this group, while California and Hawaii expanded their existing prohibitions on criminal history inquiries.
St. Louis, Missouri
Under the St. Louis ban the box Ordinance (the ...
Part 8 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
If there has been one, singular guiding principle or mantra that has sustained us, challenged us, and in some cases, inspired us over these last few months, this is it: “Don’t Waste the Crisis.” It is also the mantra that will propel us forward.
Flashback to the eve of Governor Cuomo’s Executive Order in March, shutting down New York State and New York City as the nation and the world watched. In the countdown leading up to its effective date, there was a palpable feeling of existential ...
The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently updated its COVID-19 Frequently Asked Questions (“FAQ”) regarding employers’ reporting obligations during the COVID-19 pandemic.
As previously reported, effective as of May 26, 2020, OSHA has declared COVID-19 a recordable illness for all employers. Thus, employers are responsible for recording workplace cases of COVID-19 on a OSHA 300 Log if the case: (1) is confirmed COVID-19, as defined by Centers for Disease Control and Prevention (“CDC”); (2) is ...
In this installment of Epstein Becker Green’s “Class Action Avoidance” webinar series, attorneys Lauri F. Rasnick and Frank C. Morris, Jr. address potential discrimination class actions related to office reopenings, the changing way in which we work, and the impact that the pandemic has had on individuals in protected classes.
As many employers think about reopening their offices and other workspaces, they should consider how they do so very carefully in order to avoid decisions that may adversely impact certain protected groups or lead to disparate decision making.
As featured in #WorkforceWednesday: While some might expect U.S. Supreme Court nominee Amy Coney Barrett to be a pro-employer judge, her record on labor and employment decisions could tell a different story. Attorney David Garland discusses Judge Barrett’s record and what it could mean for employers should she be confirmed to the High Court. Read more about Judge Barrett’s record (subscription required).
After repeated introductions over the course of several years in both the U.S. House of Representatives and the Senate, on September 14, 2020, the House passed HR 2694, the Pregnant Workers Fairness Act (“PWFA”). The stated purpose of the legislation is to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.” If passed by the Senate and signed into law, the Act would ...
As featured in #WorkforceWednesday: Workplace incidents—ranging from shootings and assaults to less severe violence—have spiked across a variety of industries during the COVID-19 pandemic. Attorney Beth McManus discusses the steps employers can take to address and prevent workplace violence in the current environment. Read more.
As featured in #WorkforceWednesday: The appropriate response to an employee’s controversial off-duty or other conduct, particularly conduct that occurs on social media, has long been an uncertain area for employers. And in these polarized times, that uncertainty is only growing. Attorney Adam Forman speaks to how employers can legally respond to offensive employee conduct that occurs beyond the workplace.
Part 7 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
What can jazz teach us about COVID-19? What lessons can we learn from the great masters like Miles Davis, John Coltrane, and Duke Ellington at this very moment?
As it turns out—a lot.
In a unique way, jazz, a truly American, musical art form, perhaps perfectly embodies this moment. Jazz is about democracy – about different people, from different backgrounds, experiences, ethnicities, coming together – inclusively – to make music and make things happen – to swing. Jazz is about ...
The Connecticut Commission on Human Rights and Opportunities (“CHRO”) recently extended the deadline for employers to provide sexual harassment training for their employees, from October 1, 2020, to January 1, 2021, due to the COVID-19 pandemic. The CHRO announcement is available here.
The CHRO website states that this is a blanket extension, and employers do not need to make a request to obtain the extension. Previously, the CHRO announced a 90-day extension for employers, under limited circumstances, which required employers to make a written request to the CHRO seeking an ...
On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1383 (“SB 1383“), expanding job-protected family leave for employees of companies with five or more employees. Previously, only employees of companies with 20 or more employees were entitled to these protections. According to the Governor’s office, this law, which becomes effective January 1, 2021, will expand job-protected family leave to nearly six million additional Californians.
Existing Law
The California Family Rights Act (“CFRA”) currently makes it any an unlawful employment ...
As we approach the last quarter of 2020 and the business community begins to plan ahead for 2021, New York employers should be aware of the changes coming to the New York Paid Family Leave (“NYPFL”) program. On January 1, 2021, the amount of employee contributions, the number of weeks of leave and benefits, and the amount of weekly benefits granted under the program are scheduled to increase. This will be the last of three annual increases in weekly benefits.
The NYPFL program, which took effect in 2018, provides partially-paid, job-protected leave for bonding with a new baby, caring ...
Part 6 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
Simple in theory. Challenging in practice.
While we all intuitively know that we should stay home when we are feeling unwell, a fall 2019 survey suggests just the opposite—that approximately 90% of workers generally “push through” and come to work anyway. The reality is that employees come to work when they are sick for a myriad of reasons: to stay atop long to-do lists, meet production goals, because they think the business would crumble without them, or that somehow taking a sick day and ...
Updates to USCIS Policy on New Forms, Premium Processing, and Filing Fee Increases Take Effect on October 2, 2020
As previously reported in Epstein Becker Green’s August 2020 Immigration Alert, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will increase filing fees effective October 2, 2020. In line with the announcement, USCIS has updated its Policy Manual and the Federal Register with the following changes:
- USCIS will revise the edition date of certain forms. As a result, any affected form filed on or after October 2, 2020, that does not possess the ...
On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released updates to its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers (“FAQs”), addressing questions largely focused on return-to-work questions and concerns such as permissible and impermissible inquiries, reasonable accommodation and confidentiality of employee health information.
Notable additions to the FAQs include clarification regarding the types of questions employers may ask as employees ...
Part 5 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
By now, those who have been following this series know the basics. You’ve formulated (or are in the process of formulating) a “return to work” plan, which includes, among other things, implementing policies and guidelines consistent with CDC recommendations (wear masks), as well as other best practices that most of us learned, or should have learned, by the time we were potty-trained (wash your hands), if not by the time we were in elementary school (no touching).
But once businesses ...
As has been true for so many issues arising from the COVID-19 pandemic, growing concerns about safely voting in the 2020 elections are beginning to permeate the workplace, prompting employers nationwide to create or revise policies to address employee apprehensions about voting amidst a pandemic. Time to Vote, a self-described “business-led, nonpartisan coalition that aims to increase voter participation in the U.S. elections,” founded by numerous major companies, reports that, as of August 27, 2020, more than 700 companies, representing about two million workers, have ...
As featured in #WorkforceWednesday: Employers are reevaluating plans after Centers for Disease Control and Prevention (CDC) reversals, and the U.S. Department of Labor (DOL) offers clarification on wage and hour issues related to the pandemic.
Part 4 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
We have said this before, but we will say it again: in the workplace, there should be no touching – ever. The COVID-19 pandemic just provides another reason to follow the advice we give in the anti-harassment context, that employees should maintain distance and not touch others.
No Touching, Ever – Not Even For Handshakes
In almost a long forgotten time, pre-COVID-19, it was a natural tendency for employees to use handshakes, handshakes-plus, and hugs as a way to build rapport and ...
Part 3 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
Whether physically in the office or not, regularly washing your hands should already be a routine practice. However, this innate rule is especially important, and recommended by the Center for Disease Control (“CDC”), to help prevent the spread of COVID-19 and to maintain safe, healthy and respectful workplaces.
Wash Your Hands…All the Time
Everyone should already be washing his or her hands – all the time. This is a cardinal hygiene rule that everyone learns in elementary school ...
Prompted by the many new telework or remote work arrangements that have arisen in response to COVID-19, on August 24, 2020, the Wage and Hour Division of the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 (“Bulletin”) to provide guidance regarding employers’ obligation “to exercise reasonable diligence in tracking teleworking employees’ hours of work.” The guidance, which includes citations to the Fair Labor Standards Act (“FLSA”), the DOL’s interpretive regulations, and federal case law, does not break new ground; ...
Featured in #WorkforceWednesday: As employers plan for workers to return to work, utilizing COVID-19 liability waivers is one idea that businesses are thoroughly considering. Attorney Jimmy Oh discusses the risks and effectiveness of these waivers.
Video: YouTube, Vimeo, MP4, Instagram.
On May 28, 2019, Connecticut Governor Ned Lamont signed Public Act 19-4, An Act Increasing the Minimum Fair Wage (the “Act”), which gradually increases the minimum wage in Connecticut over the next several years. The first increase took place on October 1, 2019, when the minimum wage increased to $11.00 per hour. The next increase will take effect on September 1, 2020, when Connecticut’s minimum wage will increase to $12.00 per hour.
Additional increases will take place on an annual basis:
- $13.00 per hour on August 1, 2021
- $14.00 per hour on July 1, 2022
- $15.00 per hour on June 1 ...
Part 2 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
Who would have believed that months into this global pandemic, after the innumerable and unspeakable loss to human life, to global economies, and to our own sense of selves and normalcy – that the relatively straightforward issue of whether to wear a mask to curb the spread of this virus would remain such a hot button topic. And yet, here we are.
The overwhelming science – yes, science – reported and confirmed by scientists, physicians, and leading health experts across the globe – is ...
Part 1 of a series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.
As Labor Day approaches, with schools reopening (in some form or fashion), and as we approach the end of our collective bandwidth for Zoom meetings, much time and attention has been spent discussing how and when to finally “return to work.”
But in thinking about that seemingly innocuous phrase - “return to work” - employers would be remiss not to take a moment to pause and re-think what that phrase actually means in a post-COVID-world. Is work somewhere that you go? Or is work something ...
As featured in #WorkforceWednesday: As the uncertainty with the COVID-19 pandemic continues, many employers are considering extended or permanent work-from-home (WFH) models. Attorneys Brian G. Cesaratto and Shawndra G. Jones share some tips for employers on cybersecurity and other issues to consider when implementing extended WFH models.
USCIS Will Increase Filing Fees as of October 2, 2020
On July 31, 2020, the U.S. Citizenship and Immigration Service (“USCIS”) announced it will increase filing fees effective October 2, 2020. The fee increases will impact U.S. employers that hire foreign national workers by adding to the cost of sponsoring employment. The increases most applicable to U.S. employers are:
- H-1B sponsorship: Fee raised an additional $95.
- L-1 sponsorship: Fee raised an additional $345.
- O-1 sponsorship: Fee raised an additional $245.
- TN, H-1B1, and E-3 sponsorship: Fee raised an additional $235.
As we previously reported, in 2019, the New York City Commission on Human Rights (“Commission”) provided legal enforcement guidance (“Enforcement Guidance”) advising that workplace grooming and appearance policies “that ban, limit, or otherwise restrict natural hair or hairstyles” are a form of race discrimination under the New York City Human Rights Law (“NYCHRL”). Now, the Commission is proposing to amend its rules (“Proposed Rule”) to formalize the Enforcement Guidance. The Proposed Rule states that discrimination based on hair “can function as a ...
While much attention is currently focused on whether Congress will extend, in whole or in part, the emergency $600 increase in unemployment insurance benefits (“UI”) that, until July 31, 2020, had been provided by the CARES Act (“Act”), the U.S. Department of Labor (“DOL”) is continuing to address questions about the other expansions of UI benefits under the Act, most recently, in an advisory letter issued on July 21, 2020 by the DOL’s Employment and Training Administration office (“ETA”). Of particular note, the latest ETA advisory letter instructs that an ...
As featured in #WorkforceWednesday: California provides a detailed COVID-19 employer playbook, and a federal judge vacated parts of the Department of Labor’s Families First Coronavirus Response Act rule.
Seeking to prevent San Francisco’s return-to-work program from reigniting a surge of COVID-19 cases, the city’s Board of Supervisors (“Board”) has passed the “Healthy Buildings Ordinance” (“Ordinance”). This temporary emergency measure, which Mayor London Breed signed on July 17, 2020, and which is effective immediately, (i) establishes cleaning and disease prevention standards in tourist hotels and large commercial office buildings; (ii) mandates employee training on these standards and various protections employers must provide for workers as they ...
Featured in #WorkforceWednesday: As enterprises continue to weigh the decisions and risks related to workplace transition, CLOs play a crucial role in addressing everything from leading the legal team and functions remotely, to the heightened organizational data privacy and security risk or the tax and immigration concerns that have arisen from these employee transitions.
Special guests Lori Lorenzo, Research and Insights Director of Deloitte’s Chief Legal Officer Program at Deloitte Transactions and Business Analytics LLP, and David Garland, Chair of the ...
On July 27, 2020, Virginia became the first state in the nation to implement workplace safety and health standards for COVID-19. The Safety and Health Codes Board adopted § 16VAC25-220, an Emergency Temporary Standard for Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 (the “Temporary Standard”), which is designed to supplement and enhance existing Virginia Occupational Safety and Health (“VOSH”) laws, rules, and regulations that may apply to the prevention and control of COVID-19 in the workplace. Virginia imposed these standards because ...
Featured in #WorkforceWednesday: This week, Virginia became the first state to issue workplace safety standards, but with guidance still varying widely, many nationwide businesses have begun requiring masks.
On July 20, 2020, the Wage and Hour Division (“WHD”) of the U.S. Department of Labor (“DOL”) published new guidance for businesses reopening amid the COVID-19 pandemic. The guidance is in the form of additions to the WHD’s existing Frequently Asked Questions (“FAQs” or “Guidance”) and addresses issues arising under two leave laws—the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”)—and wage and hour matters governed by the Fair Labor Standards Act (“FLSA”).
New FMLA FAQs
The WHD added the ...
In recent years, wage discrimination has been a hot topic and with it, the question of whether employers may rely on a worker’s salary history to justify a pay disparity between male and female employees. In a 2018 case involving the federal Equal Pay Act (“EPA”), Rizo v. Yovino, (about which we wrote here), the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) ruled that employers may not rely on prior salary to excuse unequal pay. On petition, the Supreme Court vacated the decision and remanded the case on a technical ground (i.e., because the judge who ...
Tracking diversity and inclusion efforts on a global basis is often a challenging task for in-house legal, human resources, and diversity and inclusion teams. While employers may be interested in collecting applicants’ and/or employees’ diversity information for worthy reasons, such an effort is a fertile ground for potential litigation involving data privacy violations and discrimination claims.
Risks of Violating Data Privacy Requirements
Globally, diversity information typically constitutes personal data (and, in many jurisdictions, sensitive personal ...
Featured in #WorkforceWednesday: Employers are encouraging employees to use their vacation time this summer to avoid a crush of end-of-year vacations. But what happens when an employee vacations in a COVID-19 “hotspot”? Attorney Nancy Gunzenhauser Popper explains.
As featured in #WorkforceWednesday: The latest FAQs from OSHA recommend wearing face masks, among other suggestions, for employees returning to work. Attorney Robert J. O'Hara discusses the significance of OSHA’s decision to issue recommendations, rather than guidance, and how rules on face masks in the office may differ at the state and local levels.
In a recent Bloomberg Law article, we reported on legislative developments regulating the use of artificial intelligence (“AI”) in employment law decisions. On May 11, 2020, one of the pieces of proposed legislation we discussed, Maryland’s H.B. 1202, became law without Governor Larry Hogan’s signature. As we reported, H.B. 1202 prohibits employers from using facial recognition technology during pre-employment job interviews without the applicant’s consent. To use facial recognition services in interviewing employees, an employer must obtain an applicant’s ...
On June 7, 2020, Governor Lamont issued Sector Rules that Connecticut businesses must follow in order to open during Phase 2 of the state’s reopening plan.
Phase 2 (which began on June 17, 2020) includes the following sectors:
- Amusement parks
- Hotels/lodging
- Restaurants (indoor)
- Museums, zoos and aquariums
- Indoor recreation (e.g. bowling, movie theaters etc.)
- Libraries
- Outdoor events
- Personal services (e.g. nail salons, tattoo parlors, etc.)
- Sports and fitness facilities (e.g. gyms, fitness centers, pools, etc.)
- Film, television and digital media production
Trump Administration Amends Presidential Proclamation That Temporarily Suspends New H-1B, H2B, J-1, and L-1 Visa and Travel from Abroad
On June 29, 2020, the Trump administration issued an amendment to Section 3(a)(ii) of Proclamation 10052 (“Proclamation”) to suspend and limit foreign nationals attempting to enter the United States in H-1B/H-2B/H-4, L-1/L-2, or J-1/J-2 employment-based nonimmigrant visa categories.
The original language in the Proclamation read as follows:
Sec. 3. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on ...
As featured on #WorkforceWednesday: This week, we finally have some guidance from the Occupational Safety and Health Administration (OSHA), and big employment law changes in Virginia go into effect.
July 1, 2020 represents a milestone for Virginia employers. As we previously reported, nearly two dozen new employment laws take effect, including the Virginia Values Act. In addition, all of Virginia enters Phase Three of Governor Ralph Northam’s Safer at Home plan to reopen the economy in light of the COVID-19 pandemic.
Changes to Virginia Employment Law
Employers with Virginia operations should take note of the following important changes:
- Sexual Orientation, Gender Identity, Military Status, and Pregnancy: The Virginia Values Act amended the Virginia Human Rights Act
Featured in #WorkforceWednesday: Attorney Denise Dadika examines the unique challenges health care employers face as they ramp business back up and reopen for both patients and employees.
Featured in #WorkforceWednesday: As businesses across the United States open up, workers may increasingly turn to unions to help support their safety. Employers should take steps to properly prepare for this resurgence in union activity. Attorney RyAnn Hooper explains more.
Presidential Proclamation Temporarily Suspends New H-1B, H2B, J-1, and L-1 Visa and Travel from Abroad
On June 22, 2020, President Trump issued a proclamation (“Proclamation”) suspending and limiting the entry of individuals into the United States in the following employment-based nonimmigrant visa categories:
- H-1B or H-2B visas, and their H-4 family derivatives;
- J-1 visas, and their J-2 family derivatives; and
- L-1 visas, and their L-2 family derivatives.
The Proclamation takes effect on June 24, 2020, and is set to expire on December 31, 2020, but may be extended. In ...
As featured in #WorkforceWednesday: This week, we saw a landmark employment law decision and received clarifications on return-to-work issues involving older workers.
In a recent 5-4 decision, the Supreme Court, in Thole v. U.S. Bank N.A., 590 U.S. __ (2020), held that participants in defined benefit pension plans lack standing to sue plan fiduciaries for allegedly imprudent plan investments where the participants continue to receive their full benefits and no imminent risk that they will cease receiving their full benefits appears.
Defined benefit plans—once the staple of employer-sponsored retirement plans but now a diminishing share of that group—guarantee a monthly payment in retirement using a formula based on years of service and ...
As featured in #WorkforceWednesday: Mobile technologies, including contact tracing and screening apps, will help safely bring employees back to work. However, there are a range of employment law and privacy concerns to consider before implementing these technologies. Attorneys Adam S. Forman and Karen Mandelbaum tell us more. You can also read more in a recent Law360 article.
Much ink has been spilled in recent weeks about how some recipients of Paycheck Protection Program (“PPP”) relief obtained their loans through mistakes or false pretenses. Now banks are coming under fire for their lending practices in connection with this hastily prepared and implemented program, which left them grappling with how to properly issue loans in the face of procedural and substantive gaps in the law. Many lenders tried to fill these gaps by supplementing the PPP application to address practical concerns not covered in the law. Two recent cases, however, demonstrate ...
On Friday, June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act of 2020 (the “Act”), which relaxes various rules under the Coronavirus Aid, Relief, and Economic Security Act’s (the “CARES Act”) $670 billion Paycheck Protection Program (the “PPP” or “Program”) managed by the U.S. Small Business Administration (“SBA”). The PPP provides forgivable loans to small businesses to keep their workers on the payroll during the COVID-19 pandemic.
The Act is the first major statutory overhaul of the PPP, which has been ...
Introduction
On April 30, 2020, Governor Ned Lamont released a four-stage plan to reopen business in Connecticut when the following conditions were met: (1) sustained 14-day decline in hospitalizations; (2) adequate testing capacity; (3) contact tracing system in place; and (4) sufficient personal protection equipment (“PPE”). Governor Lamont identified May 20 as the tentative reopening date.
Meanwhile, on May 9, the Connecticut Department of Economic and Community Development (“DECD”) issued detailed rules for the business sectors that are permitted to reopen as ...
USCIS Resumes Premium Processing
USCIS has announced here that beginning the month of June 2020, it will again start accepting certain petitions for premium processing. Premium processing was indefinitely suspended as of March 20, 2020, due to the Covid-19.
Premium processing allows (1) nonimmigrant petitions filed on Form I-129 that are reserved for H-1B, L-1A/B, O-1, and TN work authorization and (2) immigrant petitions filed by employers on behalf of foreign national employees on Form I-140 to be adjudicated within fifteen calendar days of USCIS receipt of the premium ...
The Paycheck Protection Program (“PPP”) provided forgivable loans to assist small businesses with expenses during the COVID-19 shutdown, seemingly creating a lifeline for many of these enterprises. As explained here, a borrower could obtain a loan equal to the lesser of $10 million or the sum of its average monthly payroll costs for 2.5 months, (reduced to the extent that any individual was paid more than $100,000 per year) plus the balance of any Economic Injury Disaster Loan received between January 31, 2020 and April 3, 2020. Like many federal programs, however ...
On May 27, 2020, D.C. Mayor Muriel Bowser issued Order 0202-067, which details the Phase One limited reopening of non-essential businesses in Washington, D.C., to begin on Friday, May 29, 2020. The Mayor’s decision to begin to reopen D.C. follows on the heels of prior orders of Governors Larry Hogan and Ralph Northam to reopen neighboring Maryland and Virginia, respectively. Governor Hogan allowed certain nonessential businesses in Maryland to reopen on May 15, 2020, and on May 27, 2020, he issued Order 20-05-27-01, expanding its phase one reopening. Governor Northam’s ...
Our colleagues
Following is an excerpt:
The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation ...
Plan participants and their beneficiaries may now have extra time to exercise some of their rights under the employee benefit plans in which they participate. On April 28, 2020, the Department of Labor, the Internal Revenue Service, and the Department of the Treasury issued a joint notice extending certain timeframes applicable to employee benefit plans. The joint notice was published as a final rule in the Federal Register on May 4, 2020 (“Final Rule”), issued pursuant to Section 518 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), as recently ...
On May 7, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced that it was delaying the collection of 2019 EEO-1 demographic data until 2021 because of the COVID-19 public health emergency. Accordingly, the EEOC’s online filing portal for 2019 EEO-1 filings will remain closed for now.
Recognizing the substantial impact the public health emergency is having on businesses across the country, the EEOC determined that delaying collections would put employers in a better position to provide accurate data. It expects to begin collecting 2019 EEO-1 data along ...
On May 5, 2020, and again on May 7, the Equal Employment Opportunity Commission (the “EEOC”) updated its technical assistance for employers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The EEOC has updated its guidance multiple times since the beginning of the COVID-19 pandemic. Most recently, on April 17, the EEOC provided guidance on employers’ reasonable accommodation obligations under the Americans with Disabilities Act (the “ADA”) and included a section on “Return to Work” issues (discussed here). On ...
On April 29, 2020, the Los Angeles City Council simultaneously passed two ordinances in response to COVID-19 that could potentially have long lasting and far reaching impacts on applicable businesses: the Right of Recall Ordinance and the Worker Retention Ordinance. The Mayor has until May 11, 2020, to act on both of the ordinances. These ordinances, pending approval of the Mayor, will be effective 31 days from their publication date.
Right to Recall Ordinance:
While the true impact of the ordinance remains to be seen, the City Council’s claimed purpose behind the Right of Recall ...
The COVID-19 pandemic and the efforts to limit its spread caused a sudden and dramatic shutdown of large sections of the U.S. economy. Governmental shelter in place orders requiring non-essential businesses to temporarily close forced untold numbers of businesses to furlough or terminate most, and in many cases all, of their employees with little or no warning. For larger employers, mass layoffs and terminations of operations such as these, would normally trigger notification requirements under the federal Worker Adjustment and Retraining Notification (“WARN”) Act (as ...
Consumer complaints regarding alleged price gouging have been increasing as the COVID-19 pandemic continues. Generally, price gouging occurs when there unreasonable increase the price of a consumer good (or service) during a public emergency. Although we are facing a national emergency, except for a March 23, 2020, executive order issued by President Trump prohibiting hoarding and price gouging of certain critical supplies, there is no federal price gouging law. Although there are proposal pending in Congress to more broadly prohibit price gouging, currently, the issue is ...
As featured in #WorkforceWednesday: The COVID-19 pandemic has created a sudden imbalance in the labor market. While many employers are implementing layoffs or furloughs, other “essential” businesses are searching for additional employees to meet demand. Attorneys Nathaniel Glasser and Ian Carleton Schaefer discuss how employers can use creative approaches to address this imbalance. Read more about the strategies for employers (subscription required).
As we previously reported, last year, New York State expanded its election leave law to allow employees more paid time off if needed in order to vote on Election Day (increasing the paid time off from two to three hours). However, in the State’s 2020-21 budget, signed by Governor Andrew M. Cuomo on April 3, 2020, new amendments to New York’s Election Leave Law (Election Law § 3-110) (the “Law”) undo the changes implemented by last year’s legislation and essentially reinstates the prior time-off rules, which provide that if an employee is a registered voter without ...
President Trump Signs Executive Order to “Temporarily Suspend Immigration into the United States”
On April 20, 2020, President Trump tweeted, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!” The vague tweet triggered many questions and concerns as to the scope of the immigration suspension and the impact it would have on many foreign nationals and their respective U.S. employers.
On the afternoon of April 22 ...
Recently, the U.S. Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) issued a Risk Alert to provide broker-dealers with guidance on examinations regarding regulation Best Interest (“Reg BI”). Reg BI requires that when broker-dealers make a recommendation regarding securities to a retail customer it must act in the best interest of the customer, without placing its own financial or other interest ahead of the retail customer’s interest. The Financial Industry Regulatory Authority (“FINRA”) also ...
On March 23, 2020, shortly after the Governors of California, New York, Connecticut and New Jersey issued orders closing non-essential businesses, we recommended that businesses review their insurance policies to determine if they had either business interruption coverage or civil authority coverage that might be available to lessen the economic blow of COVID-19. As explained here, business interruption coverage generally allows a business to recover certain losses in the event that the business suffers physical damage or loss that prevents it from operating its business ...
As featured in #WorkforceWednesday: With all the challenges businesses are facing, it is hard to stay focused on data security. Hackers see the newly remote workforce as an opportunity, and phishing attacks are on the rise. Employers can fight back in a few ways:
- Educate employees.
- Update training materials and work-from-home policies.
- Get security patches to employee devices quickly.
- Update your data breach response plan and communicate it.
- Remind your employees to help keep data secure by password-protecting devices with strong passwords and protecting sensitive ...
As we previously reported, the COVID-19 pandemic has altered the global workplace and international employer-employee relations in profound ways. As COVID-19 continues to spread, countries are enacting legislation and issuing guidance to support employers and employees as they confront the global crisis. In particular, Brazil, with a population of over 211 million, and India, with a population of approximately 1.3 billion, each has enacted measures to combat the ongoing economic and financial troubles caused by the COVID-19 pandemic.
Specifically, Brazil has issued ...
USCIS Completes the Initial Selection Process
On April 1, 2020, U.S. Citizenship and Immigration Services (‘USCIS”) announced that the initial selection of H-1B cap-subject registrations for fiscal year (“FY”) 2021 was completed. Petitioners who electronically registered beneficiaries in the H-1B registration process and were selected through the random selection process may file their H-1B cap petition within the period indicated on the relevant registration selection notice. The filing period for the H-1B cap-subject petition will be at least 90 days
As featured in #WorkforceWednesday: Last week, Congress passed and President Trump signed the CARES Act, a $2+ trillion stimulus law, which is the largest stimulus in U.S. history. Attorney Paul DeCamp discusses how this law could benefit certain employers during this unprecedented time in the following video interview.
On March 30, 2020, New Jersey Governor Phil Murphy and Superintendent of the State Police Colonel Patrick Callahan (who also acts as the State Director of Emergency Management) issued Administrative Order 2020-6 providing additional guidance regarding how certain businesses may operate under Gov. Murphy’s Executive Order 107 (which we wrote about here). The Administrative Order clarifies and directs that:
- Individual appointments to view real estate with realtors by individuals or families shall be considered essential retail business, but that open houses are still ...
In a matter of weeks, COVID-19 has changed the workplace. Travel restrictions, shelter-in-place orders, and mandatory closures have meant that it is far from business as usual for nearly all employers. The unprecedented events of the last few weeks have forced many employers, facing major business disruptions or closures, to make tough decisions about hiring, layoffs, furloughs, and compensation.
Some of these employment decisions may implicate written employment contracts and collective bargaining agreements that contain “force majeure” clauses that excuse ...
A post on the Health Law Advisor blog will be of interest to many of our readers: “Coronavirus and Cash Shortfalls – What Can You Do to Mitigate the Effects of Coronavirus on Your Organization’s Financial Health?,” by attorney of Epstein Becker Green.
Following is an excerpt:
The coronavirus is having a direct effect – financial and otherwise – on nearly every business. While the long-term effects of the global pandemic will be significant and far-reaching, the short-term financial consequences to businesses, due to expected cash shortfalls, could ...
On March 13, 2020, Governor Greg Abbott declared a State of Disaster in Texas due to COVID-19. Subsequently, on March 19. 2020, Governor Abbott issued a Public Health Disaster Declaration, and an Executive Order, which, among other things, prohibited congregating in groups consisting of more than ten people, and closed all Texas restaurant dining rooms [1] bars, gyms and schools, effective March 20, 2020. Governor Abbott has refrained from issuing a statewide shelter-in-place order, and has instead left the decision up to city and county leaders. In the days that followed, and ...
On Monday March 23, 2020, President Donald Trump signed an executive order aimed at preventing hoarding and price gouging. Attorney General William H. Barr indicated that the order is authorized under the Defense Protection Act, which allows the United States to compel private industry to assist in meeting national defense needs in response to national emergencies.
The new executive order empowers the Health and Human Services Secretary to designate supplies as “critical.” Hoarding – accumulating quantities beyond those reasonable to satisfy personal or business needs ...
On March 4, 2020, New Mexico Governor Michelle Lujan Grisham signed into law House Bill 21 (“Law”), limiting the use of non-disclosure agreements (“NDA”) in settlements of sexual misconduct claims.
The Law prohibits employers from requiring, as a condition of employment, that an employee agree to an NDA in a settlement agreement relating to a claim of sexual harassment, discrimination, or retaliation whether occurring in the workplace or at a “work-related event[s] coordinated by or through the employer.” In settlement agreements with former employees, the Law ...
As we explained in an earlier post, the Colorado Department of Labor and Employment (“DLE”) has issued new Health Emergency Leave with Pay (“HELP”) Rules in response to the coronavirus. Effective March 11, 2020, the HELP Rules mandate employers provide four (4) days of paid sick leave for employees in certain industries who have flu-like symptoms to receive COVID-19 testing. The DLE has since released FAQs to clarify some ambiguities in the HELP Rules.
Four Calendar Days of Paid Sick Time
Per the FAQs, the four days of paid sick leave are measured in calendar days. This ...
On March 10, 2020, the New York Department of Financial Services (“DFS”), which regulates a wide variety of financial institutions, including banks, insurance companies, and investment advisors doing business in New York, issued a series of letters regarding the response to the Novel Coronavirus (“COVID-19”). In addition to providing guidance, DFS has asked all regulated financial institutions to provide “assurance” that they have plans to address the operational and financial risks associated with COVID-19. A copy of the letter to regulated financial ...
As many employers and employees in the State of New York know, when an individual files claims for unemployment insurance benefits, New York Labor Law, Section 590, Subdivision 7, has a mandatory seven day waiting period before unemployment benefits may be paid.
On March 7, 2020, Governor Andrew Cuomo issued Executive Order No. 202.1, declaring a State disaster emergency for the entire State of New York (the “Order”). The Order, which is entitled “Suspension and Modification of Laws Relating to the Disaster Emergency,” suspends and modifies many existing laws.
This ...
On March 10, 2020, Colorado Governor Jared Polis issued an executive order directing he Colorado Department of Labor and Employment (“DLE”) to create emergency rules to “ensure workers in food handling, hospitality, child care, health care, and education can get paid sick leave to miss work if they exhibit flu-like symptoms and have to miss work awaiting testing results for COVID-19.”
The DLE issued the Colorado Health Emergency Leave with Pay (“HELP”) Rules, which mandates four days of paid sick leave for employees in certain industries who have flu-like symptoms to ...
At the time of publication, at least twenty four states, plus Washington D.C. have declared states of emergency related to the novel coronavirus (“COVID-19”), with that number growing by the hour. In addition to making more resources available to residents, in many cases, the declarations also trigger additional protections to consumers in the form of anti-price gouging laws. These laws, which automatically go into effect, are intended to prevent merchants from significantly increasing the cost of consumer goods and services during a crisis.
For instance, in New Jersey a ten ...
On March 10, 2020 the New Jersey Supreme Court ruled that under the New Jersey Law Against Discrimination (“LAD”), employees who legally use cannabis as permitted by the state’s Compassionate Use of Cannabis of Medical Marijuana Act[i] (“Compassionate Use Act”) may not be fired because they use medical cannabis and that such employees are entitled to reasonable accommodation. In a brief opinion, the Court substantially adopted the Appellate Division’s reasoning in Wild v. Carriage House Funeral Holdings, Inc., about which we previously wrote.
Wild was employed by ...
As featured in #WorkforceWednesday: In the event the coronavirus spreads drastically, many employers will want to implement mandatory work-from-home policies. Employers should consider various aspects of the Fair Labor Standards Act when crafting these policies. Attorney Jeffrey H. Ruzal explains best practices in the following video interview. See also his recent post on the Wage and Hour Defense Blog.
The IRS Office of Chief Counsel recently issued a memo which, in a surprise to many, concluded that the filing of the Affordable Care Act (“ACA”) Forms 1094-C and 1095-C (“C Forms”) does not start the statute of limitations on the Employer Shared Responsibility Payments (“ESRP”) under Internal Revenue Code (“Code”) § 4980H and, in fact, that there is no statute of limitations with respect to ESRP assessments.
In short, the ESRP is a penalty that may be assessed against “applicable large employers” (“ALEs”)[1] when, in certain circumstances, a full-time ...
Video: YouTube, Vimeo, MP4, Instagram.
Podcast: Apple Podcasts, Google Play, Overcast, Soundcloud, Spotify, Stitcher.
Following are the top stories featured in this week's #WorkforceWednesday, from Employment Law This Week:
Employee Travel and the Coronavirus
The threat of COVID-19 is growing, and U.S. companies are on high alert. International travel by employees is an area of particular concern to employers. For more, check out our resource center at https://www.ebglaw.com/coronavirus.
NLRB Joint-Employment Rule to Take Effect
The National Labor Relations Board ...
We are pleased to present Workforce Bulletin, the newest blog from law firm Epstein Becker Green (EBG). We've combined a decade of posts from five of the firm's well-regarded blogs, spanning employment law topics impacting employers in a range of industries and areas, including financial services, hospitality, OSHA, retail, technology, and more.
Workforce Bulletin will feature thought leadership from EBG attorneys on cutting-edge issues, such as sexual harassment, diversity and inclusion, pay equity, artificial intelligence in the workplace, cybersecurity, and the impact ...
In our new Advisory, "Responding to the Coronavirus (COVID-19) Outbreak: Update on Best Practices for Employers," we review significant developments since our January 30th Advisory.
Following is the "What Employers Should Do Now" section of the new Advisory:
- Appoint a single individual or department as the point of contact within your organization for questions about Coronavirus and to ensure a coordinated and consistent response to all inquiries.
- Provide updated information to employees about the symptoms of COVID-19 and affected areas.
- Educate supervisors on the ...
On January 29, 2020, the House of Representatives passed the Comprehensive CREDIT Act of 2020 (the “Act”), which would change federal laws pertaining to consumer reporting agencies and credit checks in a number of ways. Significantly for employers, the Act includes an amendment (originally H.R. 3614 - “Restricting Credit Checks for Employment Decisions Act”) to the Fair Credit Reporting Act (“FCRA”), which would restrict the use of credit information for most employment decisions.
Currently, the FCRA does not expressly prohibit employers from using credit checks ...
A Trending News video featured in #WorkforceWednesday: According to The New York Times, over 200 executives have been ousted since 2017, leaving some wondering – is #MeToo over? Far from it.
This dynamic, macro-equity movement has led to numerous workplace regulations that encompass broader pay equity and diversity and inclusion efforts. Privileged pay equity audits are one proactive tool.
Our colleague Janene Marasciullo, a Member of the Firm at Epstein Becker Green, has a November 2019 post on the Trade Secrets & Employee Mobility blog that will be of interest to many of our readers in the financial services industry: “Enforcing Non-Solicitation Agreements Against Financial Professionals: A Court Finds Financial Professionals Have a Duty to Notify Clients About a Change of Employment.”
Following is an excerpt:
A recent decision in Edward D. Jones & Co., LP v. John Kerr (S.D.In. 19-cv-03810 Nov. 14, 2019), illustrates the unique challenges that ...
Predictable lifetime income is often of paramount concern to retirees. Yet, as employer-sponsored retirement plans have moved away from the traditional pension plan model, participants in defined contribution plans may be faced with managing their own account balances and plan distributions, which may not lead to a steady stream of lifetime income in retirement. The Setting Every Community Up for Retirement Enhancement Act of 2019 (the “SECURE Act”), signed into law on December 20, 2019, may aid in securing retirements. Employers who sponsor defined contribution ...
Fiduciaries of employee benefit plans subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that appoint investment managers (“Appointing Fiduciaries”) will be interested in the opinion of the U.S. District Court for the Western District of Pennsylvania in Scalia v. WPN Corporation, et al (“WPN”) regarding their duty to monitor investment fiduciaries. Given the potential risk related to a breach this fiduciary duty, the WPN opinion is likely to be an important one for Appointing Fiduciaries.
In WPN, the Department of Labor alleged ...
On September 6, 2019, the U.S. District Court for the Northern District of California preliminarily approved a settlement in Harvey v. Morgan Stanley Smith Barney LLC. The significance of the result is two-fold. First, substantively, it is a reminder to financial services firms of potential liability under California labor law when advisors are required to pay for business expenses. Second, procedurally, the court’s approval of the settlement is edifying on the subject of parallel class actions.
In the Harvey case, plaintiffs challenged Morgan Stanley Smith Barney’s ...
On August 20, 2019, the Securities and Exchange Commission (“SEC”) charged Mosaic Capital, LLC, formerly known as AOC Securities, LLC (“AOC”), and its CEO with failing to adequately supervise an employee who engaged in securities fraud. Pursuant to the SEC Orders, AOC and its CEO were ordered to pay penalties of $250,000 and $40,000, respectively. The SEC’s actions serve as a reminder to broker-dealers—and members of firm management—of the potential for liability based on the actions of a self-dealing employee, and the need to guard against such activities.
The ...
Broker-dealers (“BDs”) should be aware that, on June 5, 2019, the SEC adopted “Regulation Best Interest” (“Reg BI”), which requires BDs and their registered representatives (“RRs”) to “act in the best interest of the retail customer,” when “making a recommendation” regarding “a securities transaction or investment strategy.” In addition, the SEC’s new rules require BDs to deliver Form CRS relationship summaries (“Form CRS”) to retail customers. BDs will need to be in compliance with Reg BI and Form CRS, which were accompanied by more than ...
For many, the topic of workplace violence may, understandably, exclusively invoke thoughts of the types of mass shootings and other employee-on-employee violence that commands the most extensive media coverage. Financial services employers, though, like employers in other significantly public-facing industries, must address a broader array of concerns—ranging from threating behavior by clients, to domestic abuse spilling over into the workplace. The legal framework that has, substantially in the past decade, come into being around issues of workplace violence in some ...
Our Employee Benefits and Executive Compensation practice now offers on-demand “crash courses” on diverse topics. You can access these courses on your own schedule. Keep up to date with the latest trends in benefits and compensation, or obtain an overview of an important topic addressing your programs.
In each compact, 15-minute installment, a member of our team will guide you through a topic. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.
In our newest installment,
In the financial services industry, investigations by the government or self-regulatory organizations are commonplace, and because they inevitably involve employee conduct (or misconduct), there is frequently an internal employment-related investigatory component. With potential financial liability and reputational harm ever-present, the strength of a company’s investigatory process is critical.
In a recent video webinar, John F. Fullerton III, co-leader of Epstein Becker & Green’s Financial Industry Service Team, spoke about when materials related to an ...
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Recent Updates
- “Fair Chance” Updates: Los Angeles County Ordinance Takes Effect; New York City Proposes Amendments to Existing Law
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- Mental Health Parity Rules Incoming: What Employers Need to Know
- Video: New DOJ Whistleblower Program - What Employers Must Know - Employment Law This Week
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