Will California’s COVID-19 Rehiring and Retention Requirements Outlive the Pandemic?

As we dream of a “post-COVID” world, some obligations stemming from the pandemic will certainly be with us for some time.  One such obligation for some employers to note is California’s rehiring and retention requirements.

California Senate Bill 93, which added Labor Code section 2810.8, brings statewide requirements for covered employers to offer available job positions to employees laid-off due to the COVID-19 pandemic.  Covered businesses include hotels, private clubs, event centers, airport hospitality operations, airport service providers, and those providing janitorial, building maintenance or security services to office, retail or other commercial buildings.  This section also applies even when an employer experiences certain ownership or organizational changes, for example, a change in ownership where the business is conducting the same or similar operations as before the COVID-19 state of emergency.

The law requires that, within 5 business days of establishing a position, a covered employer offer its employees laid off due to COVID-19 pandemic, in writing, “all job positions that become available [after its effective date] for which the laid off employees are qualified.”  Such qualification is determined based on the laid off employee holding the same or similar position at the time of the recent layoff.  If more than one employee is entitled to preference for a position, the employer must offer the position to the laid off employee with the greatest length of service on the employee’s date of hire.  The employee is afforded 5 business days to respond to the offer. 

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State COVID-19 Regulations Multiply as Fed. OSHA Declines to Adopt General Industry COVID-19 Regulations

Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry.  Shape,3d,Of,State,Of,New,York,Map,With,FlagJust yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 ETS is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases.

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act.

Safety Plans

Under Section 1 of the HERO Act, all private employers, of any size, are required to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases.  The New York State Department of Labor (NY DOL), in consultation with the Department of Health, was required to publish industry-specific model safety and health plan by June 4, 2021, however that deadline was not met.  As a condition to signing the act, Governor Cuomo secured an agreement with the New York State Legislature to make technical changes to the Act, which included providing the NY DOL and employers more specific instructions in developing and implementing the workplace standards.  The NY DOL indicated that the model plan is currently being drafted, but there is no firm deadline on when that will be issued.

However, the HERO Act does specifically outline what the model standard is required to address, which includes Continue reading

Status Update: Maryland Essential Workers’ Protection Act

Earlier this month, the Maryland Essential Workers’ Protection Act (“Act”) made it through both chambers by Sine Die and now awaits action by the Governor.  Above all, the bill would require the Maryland Secretary of Labor to establish COVID-19-specific safety regulations, also known as an “Emergency Temporary Standard” (“ETS”), within two weeks after the effective date of the Act.  This may take one of two forms:

  • if the federal Occupational Safety and Health Administration (“Fed OSHA”) has issued an applicable ETS related to COVID–19, that ETS must be adopted (see our previous post regarding the status of Fed OSHA’s COVID-19 ETS rulemaking); or
  • if Fed OSHA has not issued an applicable ETS related to COVID–19, a State ETS must be adopted that:
    1. meets or exceeds the guidance provided in “Guidance on Mitigating and Preventing the Spread of COVID–19 in the Workplace” published on January 29, 2021, by Fed OSHA; and
    2. complies with certain additional criteria, requiring employers to:
      • notify the Maryland Department of Health within 24 hours after the confirmation of a positive case of COVID–19;
      • notify the Maryland Department of Health within 24 hours after the confirmation of three or more employees at a workplace testing positive for COVID–19 within a 14–day period;
      • post in a location visible to employees at the work site: information regarding COVID–19 symptoms; protocols for an employee’s reaction to experiencing COVID–19 symptoms; the minimum safety standards developed under the regulations; and the process for submitting a complaint to Maryland Occupational Safety and Health; and
      • comply with the prohibitions relating to terminating or discriminating against employees.

Importantly, the bill provides that “[t]his subtitle applies only to essential employers in industries and sectors identified by the Governor or a Federal or State agency as critical to remain in operation during the emergency[,]” where “emergency” is defined as “[a] catastrophic health emergency, as defined [under a certain section of the Public Safety Article], that is the subject of an Executive Proclamation . . . and is related to a communicable disease.”  The bill also offers a two-part definition for “essential employer,” providing that an “essential employer” means a “person that employs an essential worker” and that an “essential worker” means “an individual who: (1) performs a duty or work responsibility during an emergency that cannot be performed remotely or is required to be completed at the work site; and (2) provides services that the essential employer determines to be essential or critical to its operations.”  Essential employers may not “knowingly misclassify an essential worker as an independent contractor or other classification in order to avoid paying an essential worker any benefits due during an emergency . . .”    

Key safety and health requirements for covered employers include, but are not limited to, the following:

  • Subject to availability, provide necessary amounts of safety equipment recommended for usage during the emergency at no cost to essential workers.
  • Adopt, maintain, and post written protocols to ensure an essential worker’s access to information regarding the applicable safety standards in effect during the emergency.
  • Provide or implement any other measures or requirements set by the Governor or a Federal or State agency to ensure the general health and safety of essential workers.
  • During an emergency, if an essential worker or any other workers has contracted the communicable disease that is the subject of the emergency at the work site, take proactive steps to minimize the risk of transmission, including informing essential worker that they may have been exposed.
  • Unless an essential workers is able to obtain testing free of charge, if an essential worker’s health insurance coverage or other benefits do not cover the cost of testing for the communicable disease that is the subject of the emergency, during the emergency, pay for testing for the communicable disease.
  • Report all positive test results to the Maryland Department of Health, and, when reporting, include demographic information about the essential worker and redact any personal identifying information to protect the identity of the essential worker.

Additionally, the bill provides that essential workers have the “right to refuse to perform an assigned task under [a certain section of this article and corollary regulations].” 

The bill also sets forth requirements for “public health emergency leave,” defined as “paid leave that an essential employer provides to an essential worker during an emergency as required under [a certain subsection of this section].”  The public health emergency leave section only applies, however, if the Federal or State government provides funding that can be used for public health emergency leave.  Should such funding become available, essential employers must provide an essential worker with public health emergency leave on the date the funding is made available to the essential employer.  The bill sets forth the specific conditions under which public health emergency leave may be taken, as well as the amounts of leave to which covered workers are entitles and documentation requirements. 

With respect to the conditions under which public health emergency leave may be taken, the bill provides that each essential employer must allow an essential worker to use public health emergency leave in relation to an emergency:

  • To isolate without an order to do so because the essential worker: has been diagnosed with the communicable disease that is the subject of the emergency; or is experiencing symptoms associated with the communicable disease that is the subject of the emergency and is awaiting the results of a test to confirm the diagnosis.
  • To seek or obtain a medical diagnosis, preventive care, or treatment because the essential worker is diagnosed with the communicable disease that is the subject of the emergency.
  • To care for a family member who is isolating, without an order to do so, because of a diagnosis of the communicable that is the subject of the emergency.
  • Due to a determination by a public health official or health care professional that the essential worker’s presence at the place of employment or in the community would jeopardize the heath of other individuals because of the essential worker’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency, regardless of whether the essential worker has been diagnosed with the communicable disease.
  • To care for a family member due to a determination by a public health official or health care professional that the family member’s presence at the place of employment or in the community would jeopardize the heath of other individuals because of the family member’s exposure to, or exhibited symptoms associated with, the communicable disease that is the subject of the emergency or due to symptoms exhibited regardless of whether the family member has been diagnosed with the communicable disease.
  • To care for a child or other family member: when the care provider of the family member is unavailable due to the emergency; or if the child’s or family member’s school or place of care has been closed by a Federal, State, or Local public official or at the discretion of the school or place of care due to the emergency, including if the school or place of care is physically closed but providing instruction remotely.

The bill provides a specific definition for “family member,” which includes: biological children, adopted children, foster children, and stepchildren of the essential worker; biological parents, adoptive parents, foster parents, and stepparents of the essential worker or of the essential worker’s spouse; the spouse of the essential worker; biological grandparents, adopted grandparents, foster grandparents, and stepgrandparents of the essential worker; biological grandchildren, adopted grandchildren, foster grandchildren, and stepgrandchildren of the essential worker; biological siblings, adopted siblings, foster siblings, and stepsiblings of the essential worker; among others

If an essential worker believes that an essential employer has committed violations, the bill provides specific methods of recourse for the worker.  It also prohibits employers from discharging or otherwise discriminating against an employee because the employee is an essential worker who files a compliant or exercises a right under certain provisions of the law. 

Illinois Senate Bill 1480 Takes A Direct Aim at Ensuring Diversity, Equity, and Inclusion in Illinois Workplaces

policies and proceduresSenate Bill 1480 (SB 1480) signed by Governor J.B. Pritzker on March 23 is the latest in a long list of laws that have taken effect in Illinois aimed at ensuring diverse candidates have an equal opportunity in hiring, tenure or terms, and privileges and conditions of employment. In July 2014 Illinois “banned the box” when then Governor Pat Quinn signed the Job Opportunities for Qualified Applicants Act. The legislation prohibits employers with 15 or more employees from asking applicants about their criminal record until the employer has determined the applicant is qualified for the position and has selected the applicant for an interview and notified the applicant or if there is no interview made a conditional offer of employment. In July 2019 Governor Pritzker signed the Equal Pay Act Salary History Ban, which prohibits all employers in the state of Illinois from asking applicants about their current rate of pay or any benefits they are eligible to receive. Now, SB 1480 requires employers to provide notice in writing after an employer has made a preliminary decision to not extend the applicant a job offer because of their conviction record, obtain an Equal Pay certificate, and the Illinois Secretary of State will begin publishing employers EEO-1 data.

Amendment to the Illinois Human Rights Act

Senate Bill 1480 amends the Illinois Human Rights Act such that employers must provide written notice to applicants after making a preliminary decision not to offer employment to the applicant because of their conviction record. Under the amendment, unless otherwise authorized by law, it is a civil rights violation for an employer to use conviction records in employment related decisions, including hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, and privileges or conditions of employment unless: Continue reading

Things Employers Should Consider as the $15 per hour Minimum Wage Gains Traction

The $15 per hour minimum wage is not a new idea, although a minimum wage increase under the Fair Labor Standards Act has garnered new attention in recent months. Raising the minimum wage was one of President Biden’s campaign promises and both the House and the Senate have re-introduced legislation to raise the federal minimum wage. Some states, like California, Connecticut, Illinois, and New York are already on track to have a $15 per hour minimum wage by 2025. But what does all this mean for employers? According to a recent Congressional Budget Office study increasing the federal minimum wage would raise the wages of at least 17 million Americans. Therefore, employers should begin thinking about how the progressive increase of the minimum wage will impact their resources.

The Fair Labor Standards Act (“FLSA”) dictates the federal minimum wage, rules surrounding overtime pay and hours worked, and recordkeeping requirements. Two types of employers are covered under the FLSA: enterprises and individuals. Enterprises have at least two employees and are (1) those that have an annual dollar volume of sales or business done of at least $500,000 or (2) hospitals and businesses providing medical or nursing care for residents, schools, and preschools, and government agencies. Individuals are employers whose employees are engaged in work that regularly involves interstate commerce. Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools) are FLSA minimum wage and overtime exempt provided they are paid at not less than $684 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. This exception is commonly referred to as the white collar exception. Other minimum wage and overtime exemptions include creative professionals, computer employees, and highly compensated individuals.

If the $15 per hour minimum wage legislation passes, employers may consider making hourly employees who would otherwise be FLSA exempt salaried. There are several benefits to be gained if those employees were correctly classified as minimum wage and overtime exempt. First, predictable wages. Hourly employees who work more than 40 hours per week are entitled to 1.5 times their regular rate of pay for each additional hour worked. If the $15 per hour minimum wage passes, that would be an overtime rate of pay of $22.50 per hour. Salaried white collar employees are not subject to the same overtime pay. Second, the elimination of recordkeeping. Employers must keep a record of all hours worked by their hourly employees. For about the past year, many white collar employees have tele-worked due to the ongoing COVID-19 pandemic. Tele-work has made it challenging for employers to keep track of employee hours worked. Whereas before an employee may have used a daily timeclock located inside the office, now employers have had to come up with creative solutions to comply with the FLSA recordkeeping requirement. With many companies predicting that even after the pandemic tele-work may still be available at least one day a week for all white collar employees, correctly classifying white collar employees as exempt by making them salaried eliminates the need to keep track of employees’ working hours.

Employers who do consider changing their white collar employees from hourly to salaried should exercise caution. The U.S. Wage and Hour Division has outlined specific tests for every exempt employee category and employers do not want to run the risk of misclassifying employees as it could result in a lawsuit. Furthermore, employers should make sure that the decision is made equitably so as not to run afoul of other labor and employment laws like Title VII and The Americans with Disabilities Act. Ultimately, the decision of whether to make an otherwise FLSA exempt hourly employee salaried should take into account the employer’s resources and be made with the assistance of legal counsel.

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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[Client Alert] New California Employment Laws for 2021 Will Leave Their Mark

By Andrew SommerFred Walter, and Megan Shaked

2020 has been another banner year for California employment laws, with legislation and Cal/OSHA rulemaking associated with COVID-19 prevention and reporting taking center stage.  In our annual update of new employment laws impacting California private sector employers, we lead off with California’s COVID-19 related laws, given their far-reaching impact on the state’s workforce during the pandemic as employers continue to implement measures to prevent the spread of COVID-19 in the workplace.  We have also addressed other substantive legislative developments, particularly in the areas of wage and hour law and reporting of employee pay data.  Unless otherwise indicated, these new laws will take effect on January 1, 2021.

COVID-19 Related Rulemaking and Legislation

Temporary Emergency COVID-19 Prevention Rule Not to be outdone by Virginia OSHA, Oregon OSHA or Michigan OSHA, Cal/OSHA adopted an onerous COVID-19 specific temporary emergency regulation effective November 30, 2020.  Below is a detailed summary of how we got here, as well as an outline of what the rule requires.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (Standards Board) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually).  The Emergency Rule was then presented to California’s Office of Administrative Law for approval and publication.  The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome compliance obligations.

The Standards Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee.  The Petition requested the Board amend Title 8 standards to create two new regulations Continue reading

Is Federal Marijuana Reform on the Horizon?

Fifty years after the Controlled Substances Act was passed and marijuana was deemed illegal under federal law, the legality of marijuana is finally being addressed by Congress, as the U.S. House of Representatives is scheduled to vote this month on a bill that seeks to end the federal law that prohibits marijuana use – a vote on the most comprehensive marijuana reform legislation in U.S. history that could have sweeping implications.

Specifically, the Marijuana Opportunity Reinvestment and Expungement Act (aka the “MORE Act”) intends to de-schedule cannabis from the list of Schedule I controlled substances under the Controlled Substances Act.  The Act also intends to expunge many convictions, tax cannabis sales at 5%, invest in grant programs with a heavy focus on social equity, and provide cannabis businesses access to Small Business Administration loans.

The vote in the House arrives roughly a month after five states — New Jersey, Arizona, Montana, South Dakota and Mississippi — voted on Election Day to legalize recreational or medical cannabis. Cannabis is already legal, to some degree, in most U.S. states, and the support for reform is only increasing.  Notably, every single marijuana reform measure placed on state ballots in 2020 passed, representing a continuation of the state-level reform movement that has consistently expanded in election after election.  As we move into 2021, medical marijuana is now legal in 34 states and the District of Columbia and recreational marijuana is legal in 15 states and the District of Columbia. Staunch activism for marijuana reform also continues to grow in several other states where legislation is expected to be introduced within the next year, including New York, New Mexico, Rhode Island, Missouri, North Dakota, and Florida.

While the MORE Act is expected to pass the House with some bipartisan support, it remains unlikely that 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.

D.C. Paid Family Leave Law Takes Effect

Effective today, July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event.DC Flag for Blog  Here, we review and highlight important aspects of DC’s Paid Family Leave law.  For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.

Covered Events and Applicable Leave Periods

The DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave. Continue reading