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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, September 13, 2022 at 12:30pm ET
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Legislation
US Supreme Court Overturned CA Supreme Court Decision
By Kimberly Carter on
Posted in Arbitration, Legislation
A few weeks ago, we hinted at the possibility that the United States Supreme Court may overturn parts of the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (Cal. 2014). Our prediction was spot on as the US Supreme Court did just that in a big win for employers.
BACKGROUND
Historically, California employees could avoid their arbitration clauses in part by asserting claims brought under California’s Private Attorney General Act (“PAGA”). PAGA allows employees to stand in the shoes of the State of California to enforce particular Labor Code violations that were – before the enactment of PAGA – only enforceable by the California Labor Workforce Development Agency.…
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Compliance Alert – City of Chicago Employers
By Tyler Bohman on
Posted in Legislation
On July 1, 2022, new obligations will be placed on Chicago employers under the City’s heightened sexual harassment protections for employees. The amendments to the Chicago Human Rights Ordinance (Ord. 2022-665) were only passed by the City Council on April 27, 2022 – are you and your business compliant? A quick guide for a seamless transition for your HR department into the new summertime protections follows below.
Who needs to keep reading?
The Ordinance applies to any business, partnership, entity, or person that employs at least one employee in the City of Chicago in the current or preceding calendar year (in 2021 or 2022), and is subject to City licensing requirements or maintains a business facility within the City limits.
An employee under the Ordinance means anyone who is engaged to work within the City limits for monetary or other valuable consideration.…
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NY Requires Notice of Electronic Monitoring to Employees — Are You In Compliance?
By Barbara E. Hoey & Nicholas J. Kromka on
Posted in Legislation
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.…
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Governor Hochul Unmasked: New York Judge Strikes Down State Mask Mandate
By Barbara E. Hoey on
Posted in Legislation
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[.]”…
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I Hear That Whistle Blowing: New York’s Expanded Whistleblower Law Raises Volume On Employers
By Damon W. Suden & Steven Nevolis on
Posted in Legislation
New York State lawmakers have done it again – amending an often-forgotten whistleblower statute of limited application into a sweeping new source of employee rights that should make employers listen up and take notice. Almost two years ago it was Section 741 of the New York Labor Law, focused on healthcare workers. This time, it’s Section 740, which applies to all private-sector employers. Below, we provide you with a run-down of the changes and how employers can prepare for the January 26, 2022 implementation date.
BACKGROUND
Although it has been around for decades, Section 740 is not the first law that comes to mind when an employer thinks of the various laws protecting its employees. That’s because the statute’s restrictions diminish its usefulness as a tool for employees seeking relief for an alleged retaliatory act. For example, the statute is narrow – it only applies when an employee discloses, or threatens to disclose, to the employee’s supervisor or a public body, an actual violation of law, rule or regulation that presents “substantial and specific” danger to public health or safety, or healthcare fraud. Even then, it only has a one-year statute of limitations and there is no right to a jury trial. And on top of that, even if an employee prevails, their remedies are limited to reinstatement, back pay, and attorneys’ fees, but not compensatory or punitive damages. Taken together, employees had little incentive to bring claims under Section 740.
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Supreme Court Splits on Vaccine Mandates
By Barbara E. Hoey & Sebastian P. Clarkin on
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.
Blocking OSHA
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.…
Uncertainty with the Federal Contractor Vaccine Mandate
By David Hickey & Amba Datta on
Where the Mandate Stands and Current Considerations for Contractors and Subcontractors
The federal contractor vaccine rollout continues to present thorny issues for federal contractors. President Biden issued Executive Order (“E.O.”) 14042 in early September 2021, requiring federal contractor employees to get vaccinated against COVID-19. The E.O. was followed by guidance issued by the Safer Federal Workforce Task Force (“Task Force”) in late September 2021, which has been frequently updated in the months since.
As described more fully in our prior post, under the mandate, implemented through the Task Force guidance incorporated into clauses issued by federal agencies, vaccines are mandatory for federal contractor employees working on covered contracts, those who perform duties in connection with a covered contract, and those working at the same workplace as covered employees. Contractors must also comply with masking and physical distancing requirements. The mandate applies to subcontractors at any tier, and applies to contractors of all sizes — small, medium or large. The E.O. and Task Force guidance immediately gave rise to many compliance questions and concerns over impact on contract or subcontract performance. Legal challenges to the contractor vaccine requirement and actions by numerous states have further complicated an already difficult compliance landscape.…
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Vaccinating the Unvaccinated: Employers Take Heed
By Mark A. Konkel & Maria Biaggi on
Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.
For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.
For now, however, here are the key takeaways for employers:
- Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.
- Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly.
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The New Employee Status: Vaccinated or Unvaccinated
By Tyler Bohman & Shea O'Meara on
What to expect from the projected increase in vaccine requirements, restrictions, and lawsuits in the months ahead.
With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.
On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from “emergency use” status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.
Even under the FDA’s prior emergency use approval, major companies – including Google, Facebook, BlackRock, and Morgan Stanley – initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.
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