In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association  alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear  that COVID-19 pandemic or not – the same rules apply.


Continue Reading NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…

On August 3, 2020, New York federal Judge Paul Oetken, vacated several significant provisions of the U.S. Department of Labor’s April 1, 2020 Final Rule, which construes the Families First Coronavirus Response Act (“FFCRA” or the “Act”), finding that the DOL exceeded its rulemaking authority. State of New York v. United States Department of Labor et al., 20-cv-03020-JPO (S.D.N.Y. August 3, 2020).

Particularly significant for New York employers, this decision changes how they determine which employees are entitled to FFCRA leave and how they can administer those leaves.  The question remains, however, whether the vacated provisions of the DOL’s regulations are still valid in states outside of New York.


Continue Reading New York v. United States: S.D.N.Y. Vacates Key Provisions in DOL’s Final Rule Limiting Paid Leave Under the FFCRA

On Monday, July 20, 2020, the U.S. Department of Labor published additional guidance, addressing questions arising from the COVID-19 pandemic under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”).

In this post, we highlight some of the guidance relating to wage and hour issues, and management of a remote workforce.

This guidance is particularly apropos, as more and more employers realize that the “new normal” is a world of remote work, with some employers extending telework on an indefinite basis.

Here are some interesting questions the DOL answered and our take-aways from the guidance.


Continue Reading When Home = Work: New DOL Guidance on Managing Your Remote Workforce

It is a virtual certainty that lawsuits from employees will increase, and likely with emphasis on whistleblower and retaliation claims as states reopen and more employees return to work. Employers need to think ahead and be ready for this wave of litigation.

There are many reasons why the COVID-19 pandemic could lead to these claims.  First, the world is dealing with a new and highly contagious virus and we are in uncharted waters. No one knows what measures must be taken to keep workers safe, or whether there will be other explosions of the virus in workplaces.

Second, the economy is bad and jobs are scarce. Employees who feel that they are at risk of termination or layoff will try to protect their jobs or shield themselves. Some will resort to whistleblowing about health and safety or other public policy issues, while others will might allege individual retaliation claims against their employer. Employers in highly regulated industries, like healthcare, energy, and consumer goods see whistleblowing complaints regularly, but as we move forward, these types of complaints will likely increase and extend beyond these industries.

And finally, the plaintiffs’ bar is hungry. Courts have been closed and cases stalled—they sense blood in the water and will strike.
Continue Reading Preparing for COVID-19 Whistleblower and Retaliation Claims

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law.  The CARES Act’s purpose is aimed at reducing the economic impact of the COVID-19 pandemic and stimulating the economy with a $2.1 trillion dollar infusion.

Among other things, the CARES Act amends Section 7(a) of the Small Business Act creating the “Paycheck Protection Program (the “Program”). The Program broadens relief to a segment of small businesses other than those that would otherwise be ineligible to receive SBA 7(a) loans.  The Program will apply retroactively from February 15, 2020 until June 30, 2020. Below are some highlights:


Continue Reading CARES ACT HIGHLIGHTS: Paycheck Protection Program and FFCRA Amendments

On April 1, 2020, the Department of Labor (“DOL”) posted a temporary rule issuing regulations for implementing the Families First Coronavirus Response Act (“FFCRA”), which became effective the same day. We reported on the DOL’s other recent efforts to flesh out the new law through its FAQ section, which included some much needed guidance

The Families First Coronavirus Response Act (“FFCRA”) is effective today, April 1. In honor of this undoubtedly daunting occasion for employers with less than 500 employees, we analyze the most significant provisions from the Department of Labor’s updated FAQs, which fill in gaping holes in the legislation that left employers (and counsel) puzzled.  For employers with fewer than 50 employees, we also examine recent DOL guidance on the “small business exemption” and identify the ways in which employers can qualify for this exemption.


Continue Reading Updated DOL Guidance – What Employers Need To Know On The First Day Of The FFCRA