Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics.
Tuesday, June 28, 2022 at 12:30pm ET
As of May 7, 2022, new amendments to the New York Civil Rights Law (linked here) requiring New York employers to provide notice of electronic monitoring to employees went into effect. If your company has not already taken necessary steps towards compliance, here is what you need to know.
Who does the law apply to?
Basically everyone – the new law applies to “[a]ny employer who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system . . .”
The law defines “employer” broadly, covering “any individual, corporation, partnership, firm, or association with a place of business in the state.” As such, most private employers, regardless of size, are covered by the new law.…
President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.
What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.
What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.
What does the Me Too law say?
The main provision of the law is short enough to reproduce here:
“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”
The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.”…
Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration
The start of a new year is the time for annual retrospectives, predictions, and promises to get back into the gym. Although we can’t help with that last one, we wanted to take this opportunity to offer our own analysis on the state of employment law in 2021, and to see if we can predict the hot-button issues for the rest of 2022.
For now, the headline issue remains COVID. 2021 had seemed to offer a glimmer of hope that the pandemic was coming to an end, only for those hopes to be dashed by the virulent Delta and Omicron variants. Big cities like New York implemented sweeping vaccine mandates for businesses and customers, while some states and even the federal government issued more targeted mandates for healthcare workers and contractors. Earlier this year, we saw the Supreme Court issue two seemingly divergent rulings on vaccine mandates, eliminating President Biden’s requirement for employers with 100+ employees to mandate vaccination or masking for those in the workplace. Meanwhile, a New York judge in Nassau County struck down the state’s masking requirement for public spaces (the order is currently stayed pending appeal).
Employers are left with a hodgepodge of COVID-related rules and regulations depending on where they and their workers reside. New laws and lawsuits are inevitable, but they only amplify the collective wish for the pandemic to be extinguished—here’s hoping.
The onset of COVID-19 ushered in the remote-work revolution. But this phenomenon, coupled with the so-called “great resignation” has led to employers confronting some novel legal issues. When seeking to enforce a restrictive covenant against a former worker, which law applies? The question was a simpler one in the Before Times—back when it was obvious that the worker lived and worked in the same state as the employer. But now, a vague restrictive covenant might no longer apply to an employee who made a big move.
Even after confronting choice-of-law issues, expect to see more arguments over what restrictions are now viable in a world where an employee can work remotely for a competitor across the country just as easily as your competitor down the block.
Of course, these are just the issues exacerbated by the pandemic. As ever, restrictive covenants remain a thorny issue and fodder for frequent legislation. For instance, Oregon has passed a law making any restrictive covenant lasting for more than a year to be unenforceable. Expect a lot of activity in this area throughout 2022.
Continue Reading Top 5 Employment Law Trends for 2022
Generally speaking, most healthcare employers would not think that their employed physicians are at risk for unionization. As opposed to interns and residents, who have experienced their own unionization push in the past several years, employed or “staff” physicians supervise nurses and other medical providers and direct the day-to-day operations of healthcare services. They are regarded as “management” and part of leadership within most hospitals. Thus, many hospital administrators naturally assume that physicians are seen as “supervisors” under the law, and like other supervisors, would be barred from seeking to organize or join a union under the National Labor Relations Act. Doctors certainly should not be allowed to seek union representation, like their nurse colleagues, since the positions are fundamentally different. Simple, right?
Maybe not. One NLRB Regional Director recently reinforced the argument that physicians, and other highly-credentialed medical providers, are not supervisors simply by virtue of their position near the top of healthcare institution chain of command – and can in fact seek to organize. They could also be part of the same unit with other staff. On January 21, 2022, in Piedmont Health Services, Inc. and Piedmont Health Services Medical Providers United, Case 10-RC-286648, the NLRB directed an election of a proposed bargaining unit consisting of physicians, nurse practitioners, certified nurse-midwives, and physician assistants. Supervisors are of course excluded from the proposed unit, but, as will be explained below, the NLRB in this case draws a clear line between what constitutes a supervisor when it comes to medical providers, and what does not.…
Judge Thomas Rademaker, a New York State Supreme Court Judge in Nassau County, yesterday issued an order striking down the statewide mask mandate issued by the Department of Health in December, which requires that all state residents over the age of two wear face masks in all public places, including within all schools. Judge Rademaker found that the DOH had exceeded its authority with the order, which he equated to a “law.”
Governor Kathy Hochul reacted swiftly, publicly disagreeing with the ruling and appealing the decision. An appeals court judge granted a motion to temporarily block the earlier ruling by Judge Rademaker, putting the mandate back into effect only hours later.
As the pandemic continues, it seems the judiciary is again on a collision course with the executive branch, as the government attempts to stymie the spread of the virus.
The decision did not, on its face, criticize masks or mask rules, but invalidated the DOH order on more technical grounds. In fact, the judge took pains to state that the court was not against masks, and “prays that the era of COVID ends soon[.]”…
Last week, the Supreme Court issued two opinions on COVID regulations impacting employers and workers across the country.
- In the first, the Court stayed OSHA’s “vaccine or test” mandate for employers with 100 or more employees, finding that OSHA had overstepped its authority in promulgating the rule.
- In the second, the Court allowed a rule implemented by the Centers for Medicare and Medicaid Services (“CMS”), requiring healthcare facilities to ensure vaccination of their entire workforces, with no testing alternative.
The seemingly contradictory opinions have set the world of legal commentary aflame, but more importantly, have left employers asking: what do we do now?
Here’s our brief guide.
On September 9, 2021, President Biden announced his plan to increase vaccination rates among Americans. Two months later, on November 5, OSHA issued its emergency temporary standard (“ETS”), mandating workforce vaccination for all employers with 100 or more employees across the country. In lieu of vaccination, an employee might submit to masking and testing, at their own expense. By OSHA’s estimate, 84.2 million employees, or roughly half the U.S. workforce, would be subject to its mandate. Across the country, legal challenges to the ETS were filed almost simultaneously with the rule.…
UPDATE: December 17, 2021
In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.
In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.
What is Long COVID and when is it a disability?
The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.
The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.
Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).…
In a one-line ruling on Monday, December 13, 2021, the U.S. Supreme Court dismissed the last of the legal challenges to the vaccine mandate for health care workers in New York. It also dismissed a challenge to a similar mandate for New York City Education Department employees, denied challenges to similar mandates for employees at Massachusetts General Hospital, and a challenge against a Maine mandate.
The New York plaintiffs, two groups of health care employees, sought an injunction against the mandate after the Second Circuit found it lawful. These Suits were brought in two courts, the Eastern and Northern Districts in New York, and ultimately were consolidated into one challenge. The argument was, by excluding religious exemptions, the New York mandate infringed on religious freedom. These New York plaintiffs claim that the vaccines offend certain religions, because they used fetal cell lines during testing. This theory has now been rejected by several courts.
This signals a trend by the high court, which is to honor mandates issued by individual state governments. This decision also clears the way for New York health care providers to confidently enforce the vaccine mandate, knowing that it has now been backed by the courts.…
In September, as the Delta variant was sweeping the nation, President Biden announced a comprehensive national strategy to get more Americans vaccinated and to set the path out of the pandemic. As part of this plan, the President announced that OSHA would be issuing regulations requiring any employer with 100 or more employees to ensure that workers are vaccinated.
In addition, the Centers for Medicaid and Medicare Services (CMS) and President Biden’s Safer Federal Workforce Task Force (SFWTF) have issued their own rules requiring the vaccination of healthcare workers and federal contractors, which we have covered previously here and here. Those employers covered by the CMS and SFWTF rules do not have to comply with the new OSHA mandate.
Today, OSHA promulgated this rule, via an Emergency Temporary Standard (ETS), covering employers with 100 or more employees. OSHA estimates this will cover approximately 2/3 of all workers in the United States.…