California Supreme Court Boosts Premium Pay For Meal, Rest and Recovery Break Violations

On the heels of Donohue v. AMN Services, LLC recognizing a rebuttal presumption of meal period violations based on the employer’s time records alone – as discussed in our prior blog post – the California Supreme Court has, in another blow to employers, ruled that the premium pay required where the employer does not provide meal, rest or recovery periods is not based on the hourly rate of pay (as had previously been understood).  In essence, the California Supreme Court has found that the “rate of compensation” for the purpose of determining the additional hour of pay due to employees who are not provided meal, rest or recovery periods is synonymous with the overtime rate of pay and must include all nondiscretionary payments, not just hourly rates.

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NY State Health Commissioner Designates COVID-19 as a Highly Contagious Disease That Presents Serious Risk, Prompting Employers’ HERO Act Plans to be Activated

By Conn Maciel Carey’s COVID-19 Task Force

On Labor Day, the New York State Commissioner of Health designated COVID-19 as a highly contagious communicable disease that presents a serious risk of harm to public health.  Under the New York HERO Act, employers must either adopt the New York State Department of Labor’s (“NYDOL”) model prevention plan or develop and establish an alternative prevention plan that equals or exceeds the requirements in the NYDOL’s model plan.

The NYDOL issued the HERO Act Standards and model plan, which set forth the minimum requirements employers must provide to address exposure to airborne infectious diseases in the workplace, on July 7, 2021.  As explained in our prior blog post, those requirements include:

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Shift in Labor Board’s Composition Portends Likely Shift in Policy at NLRB

By Kara M. Maciel and Mark M. Trapp

Last week, National Labor Relations Board (“NLRB”) Member William Emanuel’s term expired. His Democrat replacement, David Prouty, who was confirmed by the Senate on July 28 (along with another Democrat nominee, Gwynne Wilcox), ensures a 3-2 Democrat majority at the agency for the first time in almost four years. As usually occurs when there is a change in the composition and control of the Board, this shift portends a shift in policy.

Labor,Law,Books,With,A,Judges,Gavel,On,Desk,InA recent labor and employment conference held in Big Sky, Montana and attended by many current and former government officials provided a glimpse into several issues that will undoubtedly be subject to reexamination as the new Democrat majority takes control. One interesting panel featured current (Republican) Member John Ring and former (Democrat) Chair Wilma Liebman, moderated by former (Republican) Chair Philip Miscimarra.

During her remarks, former Chair Liebman noted three cases/issues she declared “need to be reversed” by the new Democrat majority. Liebman first noted PCC Structurals, Inc., a 2017 Board decision that overruled a prior 2011 ruling by the former Democrat majority (Specialty Healthcare) and reinstated the traditional community of interest standard for determining an appropriate bargaining unit in union representation cases.

A return to the Specialty Healthcare standard would make it easier for unions to narrow the scope of proposed bargaining units, which can make a significant difference in union organizing efforts. In general, according to one recent review by Bloomberg Law, Continue reading

Employee Misconduct Defense, Discipline, and Employment Law Issues [Webinar Recording]

On August 11, 2021, Lindsay A. Disalvo and Ashley D. Mitchell presented a webinar regarding Employee Misconduct Defense, Discipline, and Employment Law Issues.

Disciplining employees, a critical tool in enforcing workplace rules, has the potential 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 costly lawsuit or labor grievance could result. Employers, however, cannot ignore misconduct and/or poor performance that negatively impacts productivity, employee morale, workplace culture, or the organization’s ability to meet key goals. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA.

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

Pfizer Vaccine’s Full FDA Approval – What Does This Mean for Employers?

Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine.   Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use.  While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates. 

As explained in our prior blog, employers can mandate employee vaccinations under federal law.  The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces.  The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.

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Announcing Conn Maciel Carey’s Labor & Employment Webinar Library

Since 2015, Conn Maciel Carey LLP’s Labor • Employment Practice Group has conducted monthly webinars to give employers insight into legal labor and employment developments. We have compiled the recordings from that Annual Labor & Employment Webinar Series and have created a comprehensive webinar library so you can easily navigate and find relevant employment law programs.

Also, subscribe to our YouTube channel to access all of our past webinars and get an email notification when new recordings become available.  

Click the links in the schedule below for program descriptions for the rest of the 2021 Labor & Employment Webinar Series and register today Continue reading

Fed OSHA Updates Its COVID-19 Workplace Guidance – Realigns with CDC on Masks for Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As we predicted a few week ago, following in CDC’s footsteps, on Friday of last week (August 13, 2021), OSHA updated its primary COVID-19 guidance for non-healthcare employers – Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to embraces CDC’s updated mask recommendations for vaccinated individuals from July 27th.  OSHA’s updated guidance includes several links directly to CDC’s July Interim Public Health Recommendations for Fully Vaccinated People, as well as CDC’s COVID-19 Integrated County View Data Trackerwhich depicts levels of county-level community transmission (low, moderate, substantial, or high).

Broadly, OSHA’s updated COVID-19 guidance tracks CDC’s updated guidance closely.  For example, OSHA now recommends that:

  • Fully vaccinated workers in areas of substantial or high community transmission wear masks in order to protect unvaccinated workers; and
  • Fully vaccinated workers everywhere in the country who experience a close contact exposure with a COVID-19 case wear a mask for 14 days or until they receive a negative COVID test taken at least 3 days after the contact.

Additionally, the guidance clarifies OSHA’s recommendations for protecting unvaccinated workers and other at-risk workers in “workplaces with heightened risk due to workplace environmental factors,” including those in manufacturing, meat and poultry processing, seafood processing and agricultural processing.

What Changed in OSHA’s Updated COVID-19 Guidance? Continue reading

[Webinar] Employee Misconduct Defense, Discipline, and Employment Law Issues

On Wednesday, August 11, 2021 at 1:00 p.m. ET, join Mark M. Trapp and Ashley D. Mitchell for a webinar regarding Employee Misconduct Defense, Discipline, and Employment Law Issues.

CaptureDisciplining employees, a critical tool in enforcing workplace rules, has the potential 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 costly lawsuit or labor grievance could result. Employers, however, cannot ignore misconduct and/or poor performance that negatively impacts productivity, employee morale, workplace culture, or the organization’s ability to meet key goals. Consistent employee discipline can also benefit employers in litigation, union grievances, and inspections and investigations by the EEOC and OSHA.

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

Don’t “Default” to the Fund’s View of Withdrawal Liability

A recent case out of the U.S. District Court for the Northern District of Illinois provides an interesting window into how opportunistic pension funds attempt, and sometimes succeed, in taking advantage of employers and perhaps recovering more than the amount to which they are entitled under the Multiemployer Pension Plan Amendments Act (“MPPAA”).

Background

In United Food and Commercial Workers International Union-Industry Pension Fund v. Gordon, Case Number 1:21-cv-01585, the UFCW pension fund declared the withdrawn employer to be in “default” and accelerated the outstanding amount of withdrawal liability it had previously assessed. In a complaint brought against the owner of a now-defunct Connecticut food distributor, the fund alleged that it had previously assessed the withdrawn employer $2,350,762.00 in withdrawal liability as a result of its shutting down in the summer of 2020. Of course, under the MPPAA’s 20-year payment cap, withdrawal liability is limited to no more than 20 annual payments, calculated pursuant to the statute. Thus, the fund prepared an installment schedule which demanded the withdrawal liability be paid in 80 quarterly installments of $11,216.00. One does not have to be very good at math to realize that this schedule limited the total withdrawal liability to $897,280.00, payable over twenty years.

The complaint further alleged that shortly after receipt of the assessment the owner requested a waiver of the assessed withdrawal liability because the company no longer existed and had no assets. This request, and the owner’s subsequent failure to make the first scheduled payment, caused the fund to declare the employer in default. Finally, the complaint alleged that the employer had failed to either request review or initiate arbitration, “foreclosing any challenge to the Fund’s assessment and fixing the amounts due.”

However, rather than merely claim entitlement to immediate payment of the “outstanding” 80 quarterly payments pursuant to its assessed installment schedule, the fund asserted the right to collect the more than $2.3 million in (what must have been the) total unfunded vested benefits attributable to the withdrawn employer, as well as a 20% penalty, interest, and attorneys’ fees. Thereafter, the parties engaged in settlement talks, which ultimately resulted in the court signing off on a consent judgment in which the employer agreed to pay $1,454,500.00, approximately half the total amounts claimed by the fund, but well above the amount due pursuant to the 20-year schedule of payments.

This case appears to follow a trend in recent years in which funds have become more aggressive and creative in using the concept of statutory default to their advantage. In fact, as the case illustrates, some funds take the position that in a default situation they can ignore the MPPAA’s 20-year payment cap on withdrawal liability payments. A few key points (and there are others) should equip withdrawn employers to push back against this trend.

Discussion

First, withdrawal liability must be assessed and paid in level installments for a period not exceeding twenty years. The MPPAA states that a withdrawn employer must pay its withdrawal liability “over the period of years necessary to amortize the amount in level annual payments” and “[i]n any case in which the amortization period … exceeds 20 years, the employer’s liability shall be limited to the first 20 annual payments[.]”[i] The level annual payments “shall be payable in 4 equal installments due quarterly, or at other intervals specified by plan rules.”[ii] Moreover, to provide proper notice under the MPPAA, a fund’s withdrawal liability assessment must include the “schedule for liability payments” and “demand payment in accordance with the schedule.”[iii] Once assessed, an employer’s withdrawal liability “shall be payable in accordance with the schedule set forth” by the fund.[iv]

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The ADA is Turning The Big 3-1, but There is Still Little Guidance on Long COVID and Title I of the ADA

Happy anniversary to the Americans with Disabilities Act (ADA) which turns thirty-one this year. To celebrate its anniversary President Biden is “bringing agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law.” According to President Biden, this “includes accommodations and services in the workplace, in school, and our health care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.” The Department of Health and Human Services (HHS) jointly with the Department of Justice (DOJ), as well as the departments of Education and Laborshutterstock_212097706 (1), have released guidance explaining that long COVID can be a disability under various federal civil rights laws, including the ADA.

“Long COVID.” “Long-haul COVID.” “Post-acute COVID-19.” “Long-term effects of COVID.” “Chronic COVID.” For clarity, all of these terms refer to new or ongoing symptoms experienced by some people after first being infected with COVID-19 and they are generally referred to as COVID long-haulers. Approximately 30% of COVID positive patients are COVID long-haulers and reported continued symptoms as long as nine months after their initial confirmed positive, according to a study published in JAMA Network Open in February. According to the CDC, symptoms may occur regardless of the severity of the COVID illness and include difficulty breathing or shortness of breath, fatigue, sleeping problems, fevers, gastrointestinal issues, anxiety and depression, dizziness on standing, and “brain fog.” Some people who had severe COVID-illness may experience multiorgan effects or autoimmune conditions over a longer time with symptoms lasting weeks or months after COVID-19 illness. Finally, some who were hospitalized as a result of their COVID illness may suffer health effects during their recovery like severe weakness and exhaustion.

The guidance issued by HHS and DOJ addresses Continue reading