[Webinar Recording] NLRB Update: Senate Confirmations, Union Organizing, and Election Rules

On September 16th, Kara M. Maciel and Mark M. Trapp presented a webinar regarding “NLRB Update: Senate Confirmations, Union Organizing, and Election Rules.”

With a solid Republican majority in place for most of the Trump Administration, and new confirmations establishing a quorum, the National Labor Relations Board is methodically establishing or re-establishing many pro-employer precedents. We discussed the status of the Board and its Members and the impact of its most important rulings. We also discussed several ongoing NLRB rulemakings including changes to the election rules, as well as union organizing tactics in light of COVID-19.  This webinar addressed these and other timely issues, equipping employers to understand the potential impact on their employees and workplace.

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Conn Maciel Carey Expands Midwest Practice with Addition of Talented L&E Attorney

Conn Maciel Carey LLP, a boutique law firm with national practices in OSHA • Workplace Safety, Labor & Employment, and Litigation, is pleased to announce that Ashley Mitchell has joined the firm as an attorney in its Chicago office.

Ms. Mitchell, an employment litigator, will represent clients in a wide range of employment litigation and counsel clients on the myriad legal issues employers face in the workplace.  She also will defend employers in inspections, investigations and enforcement actions involving federal OSHA and neighboring state plan agencies.

“Ashley brings a unique perspective to our employment litigation, counseling and training practice having started her career working with prominent plaintiff-side employment law firms here in Chicago, where she also developed experience dealing with policies, procedures and practices that directly impact workplace safety and health,” said Aaron Gelb, co-head of the firm’s Chicago office.  “Ashley is ideally suited to pivot from working on pension withdrawal matters one day to preparing for a labor arbitration the next,” said Mark Trapp, co-head of the Chicago office.

“We are committed to strategically growing our practices and geographic locations, and adding Ashley to our seasoned team in the Midwest will allow Conn Maciel Carey to continue to provide the excellent client service with a focus on practical and creative advice that our national and regional clients are looking for,” said Kara Maciel, Chair of the firm’s Labor • Employment Practice. Eric Conn, Chair of the firm’s OSHA • Workplace Safety Practice added, Continue reading

Court Strikes Down Recent Joint Employer Rule

On September 8, 2020, a New York federal judge struck down most of a U.S. Department of Labor (“DOL”) rule that had narrowed the definition of “joint employer” by limiting when multiple businesses would be liable to the same worker under federal wage and hour law.  The lawsuit was filed by the attorneys general of 17 states and Washington, DC, who argued that the narrowing of the standard would eliminate important labor protections for workers and would make it more difficult to hold companies liable for violations by franchisees and contractors of minimum wage and overtime laws.

Brief History of the Joint Employer Rule

Although the Fair Labor Standards Act (“FLSA”) does not explicitly reference joint employment, the DOL has long recognized that workers may have multiple employers when employment by one employer is “not completely disassociated” from employment by the other employer.  The DOL has periodically updated this definition via informal guidance, most recently in 2014 and 2016, when it issued bulletin memorandums directing agency investigators to look past employers’ control over workers to the “economic realities” of their relationship.

The DOL rescinded those memorandums soon after President Trump took office in 2017 and proposed the first update to its formal joint employment regulations in decades, which was finalized in January 2020.  January’s final rule emphasized a company’s control over its workers, saying joint employment hinges on the division of powers to (1) hire and fire; (2) supervise and schedule; (3) set pay; and (4) maintain employment records.

The DOL’s attempt at narrowing the joint employer standard was seen as business-friendly and anti-labor, as labor advocates argued that employers who have franchise relationships or rely on subcontractors benefited from the new standard.  As a result, in February 2020, New York and 17 other states sued to block the rule, accusing the DOL of exposing workers to wage theft by narrowing its definition of joint employment further than the FLSA allows.

New York Federal Court Ruling

On September 8, 2020, Judge Gregory Woods of the U.S. District Court for the Southern District of New York issued a ruling striking down the majority of the new rule and agreeing with New York and the other 17 states who had challenged the rule.

According to Judge Woods, the new rule was “arbitrary and capricious” because the DOL failed to justify its departure from its prior interpretations of the joint employer rule or account for its costs to workers, which the states estimated at more than $1 billion annually. Judge Woods also ruled that the Trump administration’s changes to the joint employer doctrine were too narrow since they required a company to actually exercise control in the workplace instead of simply having the right to exercise control, and the DOL did not adequately explain why it disregarded evidence that narrowing its joint employment test would expose workers to wage theft.  Additionally, Judge Woods found that the new rule conflicted with the plain language of the FLSA because it ignored the statute’s broad definitions. 

As a result, Judge Woods vacated the portion of the rule applying to “vertical” employment relationships, in which workers for a staffing company or other intermediary are contracted to another entity.  However, he let stand the portion applying to “horizontal” relationships, in which a worker is employed by two “sufficiently associated” businesses.

Impact to Employers

It is likely that the DOL will appeal this ruling to the U.S. Court of Appeals for the Second Circuit, so this will not be the last time that a court opines on this issue.  In the meantime, however, there is no disputing that this ruling (especially if upheld on appeal) is a blow for the business community, which had urged the Trump administration to narrow the federal joint employment doctrine that had been expanded under the Obama administration. 

Due to this court ruling, employers now have less certainty about their relationship with one another in the joint employment context.  Thus, if any employers have revised their contracts with staffing agencies, subcontractors, or other intermediary employers since January, they should review those contracts to make sure they do not violate the joint employment standard that was in place prior to January.  And, until an appeal is ruled on or further guidance from the courts is issued, employers should adhere to the more expansive definition of joint employment when drafting contracts with staffing agencies or other subcontractors going forward.  

As always, we will keep you apprised of future developments in this ever-changing area of the law.

[Webinar] NLRB Update: Senate Confirmations, Union Organizing, and Election Rules

On Wednesday, September 16th at 1:00 PM ET, join Kara M. Maciel and Mark M. Trapp for a webinar regarding “NLRB Update: Senate Confirmations, Union Organizing, and Election Rules.”

With a solid Republican majority in place for most of the Trump Administration, and new confirmations establishing a quorum, the National Labor Relations Board is methodically establishing or re-establishing many pro-employer precedents. We will discuss the status of the Board and its Members and the impact of its most important rulings. We will also discuss several ongoing NLRB rulemakings including changes to the election rules, as well as union organizing tactics in light of COVID-19.  This webinar will address Continue reading

WARN Act Notices Deadline Approaching for Layoffs and Furloughs

Any employer that temporarily laid off or furloughed employees in the Spring of 2020 as a result of the COVID-19 pandemic and has not yet recalled those employees should be aware of an impending important deadline under the federal Worker Adjustment and Retraining Notification Act (“WARN Act”).

The WARN Act requires employers with 100 or more full time employees to provide at least sixty (60) calendar days written advance notice to their employees of an upcoming company-wide closing (referred to as a “plant closing”) or mass layoff.  While a “plant closing” is fairly self-explanatory, a mass layoff is defined as either (1)a layoff of 500 or more workers at a single site of employment during a 30-day period; or (2) a layoff of 50-499 workers, when these layoffs constitute 33% of the employer’s total active workforce at the single site of employment.

A WARN Act notice must be given to employees affected by a plant closing or mass layoff when those employees have suffered an “employment loss.”  While a temporary layoff or furlough lasting less than 6 months does not meet the definition of an “employment loss,” one that lasts longer than 6 months is indeed considered an “employment loss.”

At the outset of the COVID-19 pandemic in March 2020, many of our clients were considering a temporary layoff or furlough and as a result, they asked us whether they needed to provide their workers with a notice under the WARN Act.  At that point, since it was anticipated that any job losses as a result of the pandemic would last for less than 6 months, notice under the WARN Act would NOT have been necessary.  Now, however, it is rapidly approaching the 6-month mark for those employees that have been temporarily laid off or furloughed since March or April.  Thus, covered employers once again want to know whether a WARN Act notice is now required.

The short answer to that question is yes, a WARN Act notice likely will be required based on the Act’s definition of “employment loss.”  Specifically, under the Act, a temporary layoff or furlough without notice that is initially expected to last six months or less but later is extended beyond 6 months (which is likely the case for many U.S. employers) may violate the Act unless: (1) The extension is due to business circumstances not reasonably foreseeable at the time of the initial layoff; AND (2) Notice is given when it becomes reasonably foreseeable that the extension is required.  This means that an employer who previously announced and carried out a short-term layoff of 6 months or less and later extends the layoff or furlough beyond 6 months due to business circumstances not reasonably foreseeable at the time of the initial layoff (e.g., COVID-19) is required to give notice at the time it becomes reasonably foreseeable that the extension is required.  Given that it is now foreseeable that the layoff or furlough extension is necessary that would result in an employment loss exceeding six months, an employer’s failure to provide WARN notice to its affected employees (and other required recipients) could expose the employer to liability under the WARN Act.

It is important to note that there are several exceptions to the WARN Act’s 60-day notice requirement that may apply to COVID-19 related scenarios, including:

(1) the faltering company exception, which is when a company is actively seeking capital or business and reasonably in good faith believes that advance notice would preclude its ability to obtain such capital or business, and this new capital or business would allow the employer to avoid or postpone a shutdown for a reasonable period; and

(2) the unforeseeable business circumstances exception, which is when the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable at the time that 60-day notice would have been required.

An employer must keep in mind, however, that even if one of these exceptions applies, a plant closing or mass layoff STILL requires notices to affected employees. That notice should include a statement as to why the employee did not receive the full 60-day notice, which in all likelihood would be due to COVID-19 related circumstances. 

The WARN Act is enforced by private legal action in the U.S. District Court for any district in which the violation is alleged to have occurred or in which the employer transacts business.  An employer’s violation of the WARN Act could result in substantial liability, including back pay and benefits for each day of violation to each aggrieved employee up to 60 days, and $500 in civil penalties for each day an employer fails to provide notice to a unit of local government.

In addition to the federal WARN Act, employers should keep in mind that approximately 23 states have their own state “mini-Warn Acts” that may impose more stringent requirements than Federal WARN.  These states include Alabama, California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Tennessee, Washington, and Wisconsin.  Thus, if you have operations in any of those states, you must take into account your obligations under both the Federal WARN Act and your applicable state mini-WARN Act.

We are available to assist with questions about whether the WARN Act applies to your particular circumstances and/or to assist with providing WARN Act compliant notices when necessary. 

CDC Revises its COVID-19 Return-to-Work Criteria, Again

By Conn Maciel Carey’s COVID-19 Task Force

On July 20, 2020, the U.S. Centers Disease Control and Prevention (“CDC”) made major revisions to its COVID-19 “discontinue home isolation” guidance, upon which employers may rely to determine when it is safe for employees to return to work.  This comes only a couple months after CDC made major revisions to the same guidance document when, on May 3, 2020, it extended the home isolation period from 7 to 10 days since symptoms first appeared for the symptom-based strategy in persons with COVID-19 who have symptoms, and from 7 to 10 days after the date of their first positive test for the time-based strategy in asymptomatic persons with laboratory-confirmed COVID-19.

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In its most recent update, CDC has determined that a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances.  It has also modified its symptom-based strategy in part by changing the number of hours that must pass since last fever without the use of fever-reducing medication from “at least 72 hours” to “at least 24 hours.”  CDC’s revisions should trigger employers to immediately revise their COVID-19 preparedness, response, and control plans to account for the latest changes.  In light of the recent COVID-19 regulation that Virginia promulgated almost at the same time that CDC decided to update its guidance, the revisions also demonstrate that COVID-19 is not the type of hazard easily subject to a regulatory standard.

Revised Guidance

To start, it is important to understand the major changes that CDC has just made.  As you know, prior to CDC’s most recent changes, CDC offered individuals with COVID-19 who had symptoms two options for discontinuing home isolation:

  1. a symptom-based strategy; and
  2. a test-based strategy.

It also offered individuals with COVID-19 who never showed symptoms two options:

  1. a time-based strategy; and
  2. a test-based strategy.

With its most recent update, CDC has essentially eliminated Option 2 (the test-based strategy) for both groups – those who have symptoms and those who never showed symptoms.  Now, there is only a symptom-based strategy for those who experience symptoms, and a time-based strategy for those who do not.

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[Webinar] OSHA and Labor & Employment Law Issues Associated with Employee Discipline

On Wednesday, August 19, 2020 at 1 PM Eastern, join Conn Maciel Carey and special guest Richard Fairfax, former Deputy Assistant Secretary at the Occupational Safety and Health Administration, for a webinar regarding “OSHA and Labor & Employment Law Issues Associated with Employee Discipline.”

Disciplining employees, a critical tool in enforcing workplace rules, has the Capture iiipotential to create problems, especially when relationships deteriorate and emotions run high. Even in situations where an employer is disciplining for the right reason, if it is handled incorrectly, a lawsuit or labor grievance could turn out to be costly. But in circumstances that warrant discipline, employers cannot just sit back. Productivity, employee morale, workplace culture, employee safety and health, and meeting goals are just some of the many considerations impacted by an effective employee discipline program. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA. At the same time, employers are often confused on how to effectively and legally implement safety incentive and disincentive programs without running afoul of OSHA’s guidelines.

This webinar will give you a blueprint to lawfully discipline employee and mitigate the risk of future litigation. Participants in this webinar will learn about: Continue reading

Senate Confirms Two to NLRB, Ensuring Balance and Stability for Foreseeable Future

After passing out of committee earlier this summer, two nominees to the National Labor Relations Board – one Republican, one Democrat – were recently confirmed by the full Senate.gavel

Even though both nominees have Board experience, the confirmation votes reflected the ongoing partisan contention that has in recent years surrounded the labor agency, with Republican nominee Marvin Kaplan confirmed by a vote of 52-46 without a single Democrat voting in support, while just seven Republicans crossed over to confirm Lauren McFerran, who was confirmed 53-42. Kaplan is currently serving on the Board, while McFerran was previously confirmed in 2014 and served until last December, when her five-year term expired.

Traditionally, three board seats are held by members of the president’s political party while two are set aside for the opposition party. Thus, last week’s confirmations Continue reading

Virginia Promulgates the Nation’s First Mandatory COVID-19 Workplace Safety Regulation

By:  Conn Maciel Carey’s COVID-19 Task Force

On Wednesday, July 15, 2020, Virginia’s Governor Ralph Northan announced the commonwealth’s adoption of an emergency temporary standard (“ETS”) on infectious disease prevention.  With that, Virginia became the first state in the nation to promulgate a mandatory safety regulation designed to prevent and/or reduce COVID-19 infections in the workplace.  VA EOThe Virginia Department of Labor and Industry’s Safety and Health Codes Board voted to approve the ETS after Governor Northam directed the creation of enforceable regulations in a May Executive Order (the same EO that mandated the use of masks in public for all Virginians).  Specifically, Governor Northam directed:

“The Commissioner of the Virginia Department of Labor and Industry shall promulgate emergency regulations and standards to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations and standards … shall apply to every employer, employee, and place of employment within the jurisdiction of the Virginia Occupational Safety and Health (VOSH) program.”

Virginia state officials said they were forced to act because federal OSHA had not developed an employer safety standard to protect against infections from the Coronavirus, and thus the burden to do so has been left to the states.

The ETS, which was drafted by Virginia’s Department of Labor and Industry, took effect on July 27, 2020.  The rule will remain in effect as an ETS for at least six months, but can be made permanent through the Virginia OSHA (VOSH) formal rulemaking process defined by state law.  Although the Final Rule has not been published, the rulemaking process has been somewhat public, with early drafts of the rule discussed and debated in public meetings.

Generally, the ETS requires Virginia employers to: Continue reading

8 Conn Maciel Carey Attorneys Recognized as Super Lawyers and Rising Stars

Conn Maciel Carey LLP is excited to share that eight of its attorneys have been recognized by Super Lawyers and Rising Stars in 2020 in the fields of Labor & Employment and Workplace Safety Law.  Super Lawyers is a research-driven and peer-influenced rating service featuring exceptional attorneys out of select legal Super Lawyers 2020practice areas.  The attorneys selected are acknowledged for acquiring extraordinary professional achievement and peer recognition in their discrete areas of practice.

Eric J. Conn (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. His practice focuses exclusively on issues involving occupational safety and health law.  Before launching his own OSHA Practice, Mr. Conn practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission.  Mr. Conn and his OSHA Team at Conn Maciel Carey develop safety and health regulatory strategies for employers across all industries.

Prior to founding Conn Maciel Carey, Mr. Conn was Head of an OSHA practice group that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in its 2014 Global Awards. In 2013 and 2014, he was named a “Rising Star” by Washington, DC Super Lawyers, and as a Super Lawyer every year since.  He has also been selected for inclusion in the Washington Post’s Top-Rated Lawyers list in Washington, DC.

Kara M. Maciel (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship.  Continue reading