In 2020, California enacted several new laws affecting employers and their employment policies and procedures. While some of these laws are already in effect, others go into effect over the course of the next few months and years.

Laws That Took Effect in 2020

Workers’ Compensation COVID-19 Liability

By signing SB 1159 into law on September 17, 2020, California Governor Newsom codified his earlier issued executive order, which states that under certain circumstances, when an employee tests positive for COVID-19, there is a rebuttable presumption that the employee contracted the virus while at work and, therefore, said illness is covered by the employers’ workers’ compensation insurance coverage. Continue Reading 2021 Employment Law Spotlight: California

Last year, several major employment laws were enacted in the State of Illinois, and specifically in the City of Chicago. Employers in Illinois and/or Chicago should be reminded of these laws for 2021. Here are just a few of the highlights:

  • The Illinois Human Rights Act (“IHRA”) was amended to cover “single-employee” employers and to require employers to report to the Illinois Department of Human Rights (“IDHR”) all adverse judgements and rulings relating to harassment and discrimination;
  • Employees covered by the Chicago Fair Workweek Ordinance now have a private right of action against employers for violations of the law;
  • Chicago Enacts COVID-19 Anti-Retaliation Measures; and
  • Class action lawsuits under the Illinois Biometric Information Privacy Act (“BIPA”) are expected to continue to rise in 2021.

Continue Reading 2021 Employment Law Spotlight: Chicago and Illinois

The impact of the legal definition of “employee” versus “independent contractor” under the Fair Labor Standard Act (“FLSA”) and other employment laws cannot be understated. The FLSA’s minimum wage and overtime requirements—along with a vast array of other legal obligations employers owe to employees—simply do not apply to independent contractors. Unhelpfully, various regulatory agencies and courts have looked in the past to similar, but not quite identical, tests of independent contractor status. With so much riding on the right classification both in terms of lawsuits and dollars, any clarification of which test an employer should look to is absolutely critical guidance to U.S. businesses.

Enter the Department of Labor (“DOL”) and its January 7, 2021 publication of the final rule on classifying “Independent Contractor Status under the Fair Labor Standards Act” (the “Final Rule”), which goes into effect on March 8, 2021.  Continue Reading Independent Contractor Final Rule (For Now)

President-elect Joseph R. Biden Jr. and Vice President-elect Kamala Harris will be sworn in on January 20, 2021, signaling the official change in administration. Employers can certainly expect to see a shift in the direction of federal labor and employment laws. Already, Biden’s recent appointment of Marty Walsh, a union official, to Secretary of Labor, signifies a new era in NLRB activity and pro-employee and pro-union labor laws.  Further, the DOL and EEOC are bound to be more aggressive in undertaking many initiatives overlooked by the Trump Administration.

Federal labor and employment laws aside, New York employers should be reminded of new state laws for 2021.  Here are just a few of the highlights. Continue Reading 2021 Employment Law Spotlight: New York

A new year means new challenges in the world of employment law. To help employers comply with new laws and navigate today’s complex employment challenges, the Kelley Drye Labor and Employment team will be offering its second virtual WORKing Lunch Webinar Series in the coming months. The 2021 series consists of five webinars covering hot topics such as COVID-19 leave laws, NDA’s, wage and hour class actions, and more.

Our programs are designed to inform and provide best practices for in-house counsel, management, and HR professionals. We will kick off the series on January 26th with “Lawsuits and Laws In Vogue: What to Keep an Eye on in 2021.” See below for registration details and program descriptions.

 

Tuesday, January 26th at 12:30pm ET

Lawsuits & Laws In Vogue: What To Keep An Eye On In 2021

Emerging vaccines bring hope during the ongoing pandemic, but there’s little relief in sight for the upward trend in COVID-19-related lawsuits. Adding to that, employers still have to comply with existing employment laws and legislation, even when new COVID-19-related laws are the main focus. Join partners Barbara Hoey, Mark Konkel, and Kimberly Carter for a deep dive into COVID-19 litigation and legislative trends, including:

  • Discrimination, retaliation, and COVID-19-related lawsuits
  • Vaccine mandates and disputes
  • New pay equity laws
  • COVID-19 workplace reporting laws
  • Remote work and return-to-the-office challenges
  • Whistleblower claims
  • And much more

 

Tuesday, March 2nd at 12:30pm ET

Employee Leave Laws: Managing the Intersection of FMLA, ADA, and FFCRA

Complying with the ADA, FMLA and numerous new COVID-19 leave laws is a huge challenge for employers. More often than not, employers have to manage leave requests where two, or sometimes, all of these laws intersect. Whether it’s dealing with the employee for whom no accommodation is good enough, or the employee whose expertise seems to be avoiding work—we’ve seen it all.

Join partner Barbara Hoey for a thorough review of the obligations under all of these laws, as well some practical advice for handling employee claims and implementation of necessary policies.

 

Tuesday, April 13th at 12:30pm ET

A Look Down the Road: Employment Laws Ahead

To say that employers live in an era of change is a radical understatement. Join partners Barbara Hoey, Mark Konkel, and Kimberly Carter for a review of the pressing employment laws and issues that must be addressed by the new presidential administration and the impact of new legislation on how employers must manage their workforces from coast to coast.

 

Tuesday, May 18th at 12:30pm ET

Wage & Hour Laws: How To Avoid Common Pitfalls

The DOL’s Wage and Hour Division recovered a record $322 million in wages owed to workers in 2019 and found, on average, $1,025 for each employee due back wages. As employers face employees become more informed about their rights, employers should also stay on top of the ever-changing federal and state wage and hour laws to avoid run-ins with the Department of Labor and state labor agencies.

Join partners Mark Konkel and Kimberly Carter for a detailed review of today’s wage and hour laws and coverage of the most commonly made errors, including:

  • Misclassifying Non-Exempt Employees As Exempt
  • Failing To Recognize What Time is Compensable
  • Misclassifying Employees As Independent Contractors
  • Failing To Comply With Both State And Federal Wage And Hour Requirements

 

Tuesday, June 22nd at 12:30pm ET

Restrictive Covenants 101: NDAs, Non-Competes & Other Tools To Protect Your Company

A company’s proprietary information and business relationships are critical to its success, but these assets can also walk out the door with any one key employee. Too few companies take a considered approach to protecting those assets. NDAs and noncompetes can help, but using them without a holistic strategy can be worse than using no protection at all.

Join partner Mark Konkel team for a practical look at how to use—and not to use—restrictive covenants, and how to tailor them to your company’s unique needs.

 

Click here to register for one, all, or some of the programs.

 

CLE AND SHRM INFORMATION

CLE
Kelley Drye is an accredited provider of NY, IL, CA and TX CLE. Each program in this series offers transitional continuing legal education and each program has been approved for a minimum of 1.0 NY Professional Practice credit, 1.0 General Illinois credit, 1.0 CA General credit and 1.0 Texas General credit. We will apply for CLE credit in other jurisdictions, upon request, but cannot guarantee approval.

SHRM
Kelley Drye & Warren LLP is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CPSM or SHRM-SCPSM. Each program in this series is pending for a minimum of 1.0 PDCs for the SHRM-CPSM or SHRM-SCPSM. For more information about certification or recertification, please visit www.shrmcertification.org. HRCI credit is pending.

On the heels of the FDA’s approval of the Pfizer and Moderna COVID-19 vaccines, the EEOC updated its Technical Assistance Q & A to help employers navigate the latest pandemic related challenges. The EEOC guidance can be found here.

Below are highlights of the EEOC’s guidance, and our practical advice for employers who are considering rolling out a mandatory vaccination program for their employees.

Before jumping on the mandatory vaccination bandwagon, employers should consider these important questions:

  • Does your company need a mandatory vaccination program? Should you leave it to your employees to make their own decisions?
  • If you decide to implement a mandatory vaccination program, how will you announce it, how will you roll it out, and what is the timing? Have you factored in that vaccines may not be available to all employees at the same time?
  • If you decide to implement a mandatory vaccination program, how will you handle requests for exemptions? What will you do with employees who refuse to be vaccinated?
  • What are the pitfalls of a mandatory vaccination program?

Let’s break this down further.

Can employers mandate that employees receive a COVID-19 vaccine?

The answer is yes.

The EEOC’s updated guidance now addresses issues regarding “mandatory vaccinations” and makes clear that employers can mandate that employees get the COVID-19 vaccination. The justification for mandating vaccination, especially during the pandemic, is based on the premise that unvaccinated employees present a “direct threat” to others in the workplace. (K.5.).

Many employers are already stating that once the vaccine is widely available they may mandate a vaccine before employees can return to the office. However, as will be discussed below, even if a mandatory policy is enacted, employees may nonetheless be entitled to exemptions on the basis of disability or religious accommodation.

Do employers need a mandatory program?

The answer depends on your business.

If you run a business where your employees can safely work remotely or socially distance, you may not need it right away. On the other hand, if you run a retail business, school, a restaurant, or any similar business where employees circulate among each other or deal with the public, a mandatory vaccination program may beneficial to your operation. Many retail and customer facing industries believe that it will be a good advertisement if they can say that their employees are all vaccinated.

Whatever the approach, employers should not jump in without weighing the costs and benefits. Things to consider include administrative costs, challenges to implementing a mandatory program, such as training and legal compliance.

How will you roll it out and when?

Here again, messaging and timing must be carefully considered.  Right now, vaccines are only available to frontline healthcare workers. Thus, if your business does not fall into that category, you will need to wait until vaccines are available to your workforce to institute a mandatory program. Even then, you may have to allow for a vaccine rollout over time, and only make the mandate applicable to those employees who are eligible to receive a vaccine.

In the early months of 2021, practical questions about fairness may arise. For example, if an employee wishes to comply but a vaccine is not available to them, should they be excluded from the workplace? Employers adopting a mandatory program will likely face, and should be prepared to handle a number of similar questions.

Next let’s look at the issues surrounding employees receiving the vaccination. Continue Reading The EEOC Confirms You CAN Mandate a Vaccine, But SHOULD You?

In an effort to ensure that Los Angeles County employers are complying with COVID-19 workplace safety guidelines, the Los Angeles County Board of Supervisors unanimously adopted an ordinance allowing for the formation of Public Health Councils – voluntary groups of employees at the worksite tasked with monitoring their employer’s compliance with COVID-19 safety requirements. Specifically targeting industries with significant workplace-related coronavirus outbreaks, including warehousing and storage, food manufacturing, restaurants, and apparel manufacturing, the $5 million program essentially deputizes the employees participating on the councils, burdening employers with yet another layer of oversight of workplace safety during the pandemic.

With guidance from the Department of Health, the newly formed Public Health Councils will be paired with third-party organizations (certified by the county) and receive training on health orders and the violation reporting process. While employers are not required to pay their employees for time spent participating on the councils, the Board does encourage employers to not only pay their employees for that time, but also permit the use of company premises for council meetings as well as aid in council outreach to interested employees.

Continue Reading Employers Beware: LA County Approved New Ordinance To Allow Employees to Monitor and Report On COVID-19 Workplace Safety Compliance

On January 20, 2021, Vice President Joseph R. Biden Jr. will be sworn in as the 46th president of the United States. Whichever side of the political spectrum you fall on, there can be no question that this is going to signal changes – and not all of them positive – for employers. For all the tumult of the Trump years, the current administration has helped create an unquestionably employer-friendly environment, largely by rolling back many Obama-era labor priorities, from union organizing to changes in independent contractor law.

Whatever their political orientation, businesses are cautiously eyeing a Biden-Harris administration for signs of “Obama redux,” or perhaps an even more aggressive labor agenda, particularly in the form of Executive Orders from a Democratic administration energized by (or careful to placate) its more progressive elements.

Biden’s actual legislative opportunities in Congress are far more uncertain and run from modest to expansive, largely depending on the results of Georgia’s U.S. Senate runoff elections on January 5, 2021. If Republicans keep control of the Senate, employers should expect more gridlock in Washington. That kind of stalemate may well result in the exact reaction some state legislatures had to Trump: more progressive employment legislation at the state and local levels. But with Executive Orders remaining, recent Presidents’ weapon of choice (a trend for which Trump became known but which, ironically, was ushered in by Obama himself), employers can also expect a Congressionally stymied Biden-Harris administration to compensate with more of the same. We don’t have to look far for evidence of these plans: for example, Biden has already committed to rescinding President Trump’s Executive Order 13950, which directed federal contractors to refrain from conducting diversity and inclusion training.

Other predictions include the following:

Coronavirus

President-elect Biden campaigned on shutting down the coronavirus, not the economy. Employers can expect his administration to issue workplace safety rules for employers to follow on a national level to protect workers from exposure to the virus. The new president could implement these rules quickly even without Senate confirmed leadership at the Labor Department or OSHA.

Expanded family leave and emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA) will expire on December 31, 2020. During the campaign, President-elect Biden indicated that he would support: (1) expanding the additional $600 per week in federal unemployment benefits that expired in July 2020, and (2) an extension of emergency paid sick leave and family medical leave under the FFCRA. Biden would likely support a bill that would make these benefits available to both employees and part-time workers, gig workers, and independent contractors. Senate Republicans favor the inclusion of valuable liability protections for businesses. In the event Senate Republicans keep control of the Senate, President-elect Biden may support a compromise bill with both benefits for employees and employers (for employers making a good faith effort to comply with COVID safety measures).

Additionally, President-elect Biden supports 12 weeks of paid leave for all workers to care for their newborns, newly adopted or fostered children, for their own or a family member’s serious health condition, or to care for injured service members or deal with “qualifying exigencies arising from the deployment” of a family member in the Armed Services.

Misclassification – Employee vs. Independent Contractor

The ping pong that has gone on over the legal definition of an “employee” will likely continue, as President-elect Biden has committed to “work with Congress to establish a standard modeled on the ABC test for all labor, employment, and tax laws.” (The “ABC” test finds its origins in California state law, most clearly embodied in 2020’s Assembly Bill 5, or “AB5,” which is shorthand for “almost impossible to classify workers as independent contractors.”)

Whether the Biden-Harris administration can actually deliver on its promise of legislative action with respect to independent contractor misclassification remains to be seen. However, President-elect Biden’s invocation of California’s ABC test is a strong signal that his administration will ramp up enforcement action designed to root out independent contractor misclassification.

National Labor Relations Board

While a Republican-controlled Senate is unlikely to pass union friendly legislative proposals, President-elect Biden will place individuals on the National Labor Relations Board who share his pro-union views, and who are likely to overrule many of the precedents issued during the Trump administration and who will revive the Obama-era rules expediting union elections, requiring contractors to agree to be neutral with respect to union organizing, and impose a version of the “Fair Pay and Safe Workplaces” order.

OSHA

Similarly, a Biden-Harris administration will likely include the reinstatement of the Obama-era rule requiring employers to publicly disclose occupational illnesses and injuries at their workplaces, which is intended to incentivize compliance with health and safety standards.

Pay Equity

When Vice President-elect Kamala Harris was herself a presidential hopeful, she revealed her intention to make the U.S. a worldwide leader in the fight for pay equity. If Republican control in the Senate remains, it is unlikely that the Biden administration could push through Congress any pay equity legislation imposing significant burden on private employers. However, pay parity standards for federal contractors are likely along with the resuscitation of the Obama-era requirement that pay data be disclosed by employers on EEO-1 reports and a directive to the OFCCP to aggressively enforce prohibitions on wage discrimination by federal contractors.

Arbitration

If the Democrats gain control of the Senate, employers can expect Biden to sign the Forced Arbitration Injustice Repeal (“FAIR”) Act, which is legislation that would prohibit employers from requiring employees to sign pre-dispute arbitration agreements as a condition of employment. If Republicans maintain their Senate majority, the FAIR Act will be blocked in the Senate.

Immigration

The Biden Administration is expected to make it easier for businesses to use immigration to strengthen their businesses.

Minimum Wage

President-elect Biden previously called for a $15 federal minimum wage. The Biden Administration also will seek to eliminate the reduced minimum wage for tipped employees (i.e., the tip credit) and likely will seek an increase in the minimum salary to qualify as an exempt employee under the FLSA.

* * *

So what’s the upshot?  Employers can expect a Biden-Harris administration that is much more worker-friendly than the current administration. Without a Democratic majority in the Senate, don’t expect any groundbreaking labor and employment legislation. Instead, stay focused in the next four years on what made the last four years such a rodeo for employers trying to stay in compliance – a patchwork of Executive Orders, and state and local laws that vary widely from jurisdiction to jurisdiction. As for what might happen if Democrats gain a slim majority in the Senate – check back with us on January 6, 2021.

Kelley Drye’s Labor and Employment team will continue to track and provide updates on the latest legislative and regulatory developments. If you have any questions, please contact our co-chairs, Barbara Hoey and Mark Konkel.

As employers are well aware by now, New York enacted statewide paid sick leave requirements for employers, which took effect on September 30, 2020. We provided an overview of requirements for the new law here. Under the law, New York employers must provide all employees with sick leave and grant employees the ability to use accrued sick time starting January 1, 2021. The amount of sick leave an employer must provide under the law varies depending on an employer’s size and net income.

Recently, New York State issued much anticipated guidance and in a seven page FAQ document regarding the State’s new paid sick leave law. That guidance can be found here.

Although the guidance doesn’t answer every single question employers will have, the FAQs provide clarification as to Definitions, Accruals, Permitted Uses, Who is Eligible, Leave Increments, Rate of Pay, Alternative Accrual System, and Collective Bargaining Agreement and Other Leave Laws, Employee Rights & Protections, and Miscellaneous Questions.

We have excerpted  below a few key FAQs for employers to consider as they continue to work through COVID-19 and employers consider necessary revisions to their leave policies:

If employers choose an accrual based method for calculating leave under the NYPSL, they should be aware that out of state telework may impact an employee’s entitlement. The FAQs suggest that employees are only eligible to accrue sick leave based on hours worked while physically within the state of New York:

DOES AN EMPLOYER HAVE TO PROVIDE SICK LEAVE TO EMPLOYEES WHO TELECOMMUTE OUTSIDE OF NEW YORK STATE?

Employees who telecommute are covered by the law only for the hours when they are physically working in New York State, even if the employer is physically located outside New York State.

With many employees are already working from home, it is also important to note that, under the new law employers cannot require employees to telecommute in lieu of taking sick leave: Continue Reading State Issues Guidance for NY Paid Sick Leave Law

On September 30, 2020, California Governor Gavin Newsom signed into law SB 973, which imposes new pay reporting requirements on certain employers. The law, which takes effect on January 1, 2021, requires employers to file an annual pay data report by March 31 of each year. According to the California legislature, the collection of pay data will permit the state to “more efficiently identify wage patterns and allow for targeted enforcement of equal pay or discrimination laws.” The new law is in response to the Trump Administration’s order in August 2017, suspending an Obama-era wage gap initiative that required employers to submit a federal Employer Information Report (EEO-1) that includes pay data by gender, race, and ethnicity beginning in 2018.

Under the new law, California employers with 100 or more employees, who were required to file an annual EEO-1 report under federal law, are now required to submit a pay data report to the California Department of Fair Employment and Housing (DFEH), that mirrors the reporting requirements of the EEO-1 form. Specifically, the report must include: (1) the number of employees by race, ethnicity, and sex in each of ten broad job categories, and (2) the number of employees by race, ethnicity, and sex whose annual earnings (defined as W-2 income) fall within each of the pay bands established by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey. The report must also include total hours worked by each employee within a given pay band. For reporting purposes, employers will create and submit a “snapshot” pay period in which it counts all individuals who were on the employer’s payroll in any single pay period of the employer’s choice between October 1 and December 31.

Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees. Employers must also provide the data in a format that allows the DFEH to search and sort the information using readily available software. Employers may, but are not required to, provide “clarifying remarks” about information submitted in the report. The law also requires the DFEH to make the reports available to the Department of Labor Standards Enforcement upon request and to maintain the reports for a minimum of 10 years. Additionally, the law authorizes the DFEH to seek an order requiring non-reporting employers to comply.

The new law does not clarify if the reporting requirements apply to employers with more than 100 employees overall (including those employees outside of the state) or only to those employers with more than 100 employees in California.  In addition, it is unclear if California employers will need to report data for all employees, even those who live outside of the state.

In light of these upcoming reporting requirements, California employers should start the process of evaluating whether they are in a position to generate the required data by the March 31, 2021 deadline. If you have questions regarding how to comply with California’s new pay data reporting requirements, please contact Kelley Drye’s Labor & Employment group.