President Trump’s Executive Order 13950, which had sought to limit diversity and inclusivity training, especially as to implicit bias topics, has been frozen by a federal court, and now, as a result, the DOD and DOL have agreed that the federal government will no longer enforce the Executive Order.
A recent Tenth Circuit decision previews courts’ likely analysis when employers begin requiring workers to return to the workplace following the eventual end of the pandemic. In the case, the Court held that making a “transitional duty” permanent is not a reasonable accommodation — in other words is not required by the ADA — especially where it would eliminate an essential function of the worker’s position.
The Court used the phrase “transitional duty” to refer to the employer-prison’s temporary assignment of a disabled worker to relatively light duty that consisted of “sedentary” tasks in the “control room.” The prison provided the transitional duty only as a temporary accommodation of his arthritis pending hip surgery after which he was expected to return to his regular duties as a correctional officer. It was undisputed that the regular duties of a correctional officer included the ability to defend oneself, which he could not do absent successful recovery from surgery. When the temporary transitional duty ended and he was still unable to work as a correctional officer, his employment was terminated. He sued claiming that the ADA required the prison to convert the transitional duty into his permanent assignment. The prison responded and the Tenth Circuit agreed that making his temporary accommodation permanent would not have been a reasonable accommodation, in other words, was not required under the ADA. His job was to work as a correctional officer; the transitional duty was merely a temporary effort to respond to his arthritis and need for surgery.
Just as having permitted that correctional officer to work in the control room was merely a temporary response to the circumstances at the time, one that the ADA did not require to be made permanent, so, now in the context of the pandemic, allowing employees to work remotely, temporarily during the pandemic, does not open the door to ADA lawsuits claiming to make remote-work permanent, at least where attendance is itself an essential function of the job. Readers are reminded that the EEOC similarly recently opined that temporarily eliminating an essential function, in response to specific circumstances such as the pandemic, does not require that elimination to be made permanent under the ADA (or Title VII).
Source: Mannan v. Colorado, 2020 BL 493234, 2020 Us App Lexis 39822 (10th Cir. 12/18/20).
Although the Board can recognize protected activity by one worker under the “Army of One” theory, it may not certify a union to represent a bargaining unit with no members, held the First Circuit. In the case, the union petitioned to represent a group of workers, and eventually won the right to do so, but by the time the Board certified the bargaining unit, the unit’s work had ended, there were no more such workers and the evidence confirmed there would be no more such workers. While Board precedent allows a certification for a unit of none in unusual circumstances where such work might resume (for example, in some seasonal worker cases), the First Circuit held it does not permit certification when there is no such likelihood.
Source: NLRB v. Wang Theatre, Inc., case no. 20-1157 (1st Cir. 11/30/2020).
In an apparently symbolic statement, the DOL issued its long-waited final rule re gig workers and other independent contractors. The rule purports to provide clearer, more pro-business provisions regarding independent contractor classifications. The DOL has summarized its final rule, as follows:
In the final rule, the Department:
- Reaffirms an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee).
- Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself:
- The nature and degree of control over the work.
- The worker’s opportunity for profit or loss based on initiative and/or investment.
- Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:
- The amount of skill required for the work.
- The degree of permanence of the working relationship between the worker and the potential employer.
- Whether the work is part of an integrated unit of production.
- The actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
- Provides six fact-specific examples applying the factors.
However, the DOL waited too long to issue its final rule for it to become effective. The regulatory rulemaking process provides that such rules do not become effective until at least 60 days following their publication (this rule was published 1/6/2021). In the interim President Elect Joe Biden will be inaugurated. The incoming Biden Administration has already announced that it will immediately freeze this and any other so-called “midnight” regulations. It is not clear why the Trump Administration, knowing the rulemaking process, chose to wait too long to issue this rule.
Effective January 1, 2021, as previously discussed, including in this firm’s recent on-demand complimentary webinar, Colorado employers — and out-of-state employers posting within Colorado even by the Internet — face new requirements that include having to post a good faith range of wages and a general description of benefits in all job opening postings. These new laws also impose (internal) promotional-opportunity notice obligations, which in turn also include obligations to disclose wage and benefit levels. Employers are reminded they block pay-history questions, and that another recent Colorado law includes ban-the-box prohibitions that now according to recent guidance by the CDLE prohibit saying “background checks required.” How are employers complying? A first-day review of sample Internet job postings on sites such as Indeed and Monster suggest at least some employers are posting along the following lines:
Job title
Business-name
City, CO
$x-$y (where so far the most common range seems to spread across a difference ($y-$x) of $5-10,000 for salary and $2-4 for hourly positions)
General description of position, like “Acme corp is hiring managers to oversee an exciting team of workers to do such-and-such work”
Bonus incentives available
Medical, dental and vision elections available
401(k) with company match
Is that sufficient? Are pay ranges greater than $5-10,000 too much? At least one public posting had a spread of almost $50,000, is that too much, could it be based on a “good faith’ estimate of actual pay? Must bonus disclosures include more information than that, must they state a good faith estimated dollar range? Stay tuned as postings eventually begin to face scrutiny by the CDLE and courts.
