EEOC confirms coronavirus antibody testing not permitted as part of return-to-workplace program, although active-virus testing may be permitted

The EEOC updated its FAQ guidance with Q&A no. A7, advising that an employer may not require coronavirus antibody testing (which is the blood test done to see if the person’s blood suggests they were previously exposed to the virus sufficient to create antibodies) as part of a company’s return-to-workplace program. However the EEOC advised (1) this may change as the science develops and (2) an employer may be able to require active virus testing (which is commonly done with a nasal swab) if such testing is uniformly required and “job-related consistent with business necessity.”

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

OSHA issues updated FAQ confirming cloth face coverings and general masks worn re coronavirus are not PPE

OSHA issued an updated FAQ re cloth face coverings and the kind of masks commonly worn regarding coronavirus (called “surgical” masks by OSHA, as distinguished from what it calls “respirators (e.g., filtering face pieces)”).

OSHA explains that cloth face coverings are worn, not to protect the wearer, but to reduce the expression of virus by the wearer, what OSHA calls “source control.”

Face coverings are intended to prevent wearers who have Coronavirus Disease 2019 (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

As such, OSHA says, cloth face coverings are not PPE and need not be provided by or paid for by an employer. Likewise surgical masks and even respirators, when worn for source control, are not PPE and need not be provided by or paid for by an employer.

Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

Although not required by OSHA, “OSHA generally recommends that employers encourage workers to wear face coverings at work.” In addition, even when cloth face coverings are encouraged, OSHA also recommends that employers encourage social distancing in the workplace. (Note: Employers should remember OSHA is only one source of applicable law. Employers need to comply with all applicable laws, some of which, especially at the state and local level, do mandate social distancing, de-densifying, and even cloth face coverings.)

OSHA’s FAQ reminds employers that some companies must provide masks and even respirators as PPE, for example healthcare employers whose workers are known to be exposed to coronavirus. Likewise OSHA reminds all employers they face a General Duty citation if they fail to take feasible and effective means to eliminate a recognized hazard in the workplace; OSHA’s FAQ suggests it may rely upon evidence to include the failure of an employer to encourage the use of cloth face coverings or surgical masks and the practice of social distancing.

Arbitration agreement held enforceable despite impossibility of complying with governing-rules language

The Colorado Court of Appeals recently held that an arbitration agreement is enforceable even if complying with its governing-rules language is impossible. In the case, the parties entered into an arbitration agreement calling for any dispute to be governed by the rules of a particular arbitration company. One of those rules was that only that arbitration company could be the arbitrator applying its rules; in other words, one rule was that other arbitrators could not apply its rules. The problem was that the arbitration company did not do the kind of arbitrations that the parties intended. When a dispute later arose, they still did not. Therefore, it was impossible for the plaintiff to bring her case before that company, and, she contended and the trial court agreed, it would have been a violation of its rules — the rules agreed to by the parties — if a different arbitrator were to apply those rules. The Colorado Court of Appeals disagreed, holding that the parties had agreed to arbitrate, so arbitrate they must, though whoever they pick to be the arbitrator should still apply the other company’s rules for arbitration (despite the fact those rules prohibit other companies from apply those rules). The Court cautioned its conclusion might have been different if the parties had expressly stated that the prior company was their exclusive selection for an arbitrator.

Source: Johnson-Linzy v. Conifer Care Communities, 2020 COA 88 (6/4/2020).

SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”

The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

In authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.

To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.

OSHA believes some employers have a duty to investigate work-relatedness of coronavirus cases

If an employee tests positive, does an employer have an obligation to investigate whether it is “work-related”? OSHA thinks so, now, but investigating and determining “work-relatedness” may not be as easy — or as lawful — as OSHA believes.

OSHA issued a revised enforcement guidance that now imposes on some employers a duty to investigate the possible “work-relatedness” of employee coronavirus cases and, if confirmed, to comply with OSHA’s recordkeeping requirements regarding work-related injuries and illnesses.

Employers may wish to review this summary of the revised guidance by SHRM.

To determine the work-relatedness of an employee’s having coronavirus, the employer should conduct an investigation, which may be as simple as talking to the individual. OSHA suggests that an employer’s investigation should include:

(1) (asking) the employee how he believes he contracted the COVID-19 illness;

(2) while respecting employee privacy, discuss(ing) with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and

(3) review(ing) the employee’s work environment for potential SARS-CoV-2 exposure.

Unfortunately this may not be as simple as OSHA makes it sound. Employers are reminded of the EEOC and other legal constraints on medical inquiries. Employers should consult with legal counsel as they attempt to thread the needle between the conflicting requirements of OSHA and the EEOC.

OSHA believes a case of coronavirus may be considered work-related if “(f)or instance:

COVID-19 illnesses are likely work-related when several cases develop among workers who work closely together and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.

An employee’s COVID-19 illness is likely work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

An employee’s COVID-19 illness is likely not work-related if she is the only worker to contract COVID-19 in her vicinity and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.

An employee’s COVID-19 illness is likely not work-related if he, outside the workplace, closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual is likely infectious.

CSHOs should give due weight to any evidence of causation, pertaining to the employee illness, at issue provided by medical providers, public health authorities, or the employee herself.

OSHA’s recordkeeping requirements may not apply to employers with fewer than 10 workers or with workplaces recognized by OSHA as low hazard.

PPPFA grants greater flexibility for PPP loan borrowers

Congress passed and President Trump signed the PPPFA (Paycheck Protection Program Flexibility Act), which grants greater flexibility for PPP loan borrowers.

Among its changes, the PPPFA

  • Reduces the required ratio of loan usage on payroll from 75% to 60%
  • Permits loan funds to be used over a 24- not 8-week covered period
  • Extends the deadline to rehire workers from June 30 to December 31, 2020
  • Adds exceptions to the headcount requirement for rehiring
  • Extends the repayment term from 2 to 5 years

Many of the PPPFA’s changes are options available but not necessarily mandated for existing PPP loans. Companies that have taken out a PPP loan should contact their lender and tax/accounting professionals to learn which of the PPPFA’s options may now be available to them.

Coronavirus-safety lawsuits against employers begin

Employees have begun filing lawsuits against their employers alleging inadequate safety measures in place to protect against coronavirus.

So far, two lawsuits have reached an initial-decision stage:

  1. Rural Community Workers Alliance v. Smithfield Foods, Inc., case no. 5:20-CV-06063-DGK. See Order Granting Defendant’s Motion to Dismiss dated 5-5-2020.
  2. Massey v. McDonald’s, case no. 2020CH04247. See initial complaint, which news reports advise was sustained against a motion to dismiss, by way of a verbal order from the bench that has not (yet?) been reduced to writing and that, instead, set the matter for a forthwith hearing regarding a possible preliminary injunction.

The McDonald’s complaint alleges that the company has taken inadequate safety precautions to protect against coronavirus and asserts claims that, as a result, its restaurant operations at the locations identified in the complaint constitute “public nuisances” that endanger the public, including not only customers but the plaintiff (and requested class-action members) employees and, further constitute the tort of negligence against the plaintiffs (and requested class-action members) who are employees. The complaint further includes a negligence claim against individual store owners.

While the McDonald’s complaint has reportedly been set for a preliminary injunction hearing, the plaintiffs may take little comfort from the Smithfield Foods case, which was also set for such a hearing, but then dismissed.

Employers can expect to see more of such lawsuits filed as the country struggles through the coronavirus crisis, but it seems the court in the Smithfield Foods case reached the right conclusion. Coronavirus is a national crisis. It is not a risk specific to any given workplace. COVID-19 is a novel virus. Not just companies, and individuals, but the government itself is struggling to determine what proper safety measures are in the workplace.

Most importantly in these cases, workplace safety is within the exclusive jurisdiction of OSHA. Congress created extensive regulatory procedures and protections within the OSHA administrative framework. One such right is not a private right of action by workers who wish to challenge workplace safety measures. Employees must pursue their concerns through the OSHA process, not by filing private lawsuits in court.

To the extent plaintiffs try to cloak their negligence claims as “public nuisance” claims, the same reasoning applies, as the court noted in the Smithfield Farms case.

The parties agree that the Plant cannot be a public nuisance simply by virtue of the fact that it is a meat-processing plant during a global pandemic. Moreover, in this case, Smithfield has implemented substantial health and safety measures to protect Plant workers, and no employees of the Plant have been diagnosed with COVID-19. While Plaintiffs argue that Smithfield could do more to protect its workers, that is not the issue before this Court. The issue is whether the Plant, as it is currently operating, constitutes an offense against the public order. Because of the significant measures Smithfield has implemented to combat the disease and the lack of COVID-19 at the facility, the Plant cannot be said to violate the public’s right to health and safety.

The court there concluded its analysis by emphasizing that it was sympathetic to the plaintiffs’ concerns, but that those concerns should be raised to the appropriate workplace safety agencies, primarily OSHA.

Plaintiffs are naturally concerned for their health and the health of their community in these unprecedented times. The Court takes their concern seriously. Nevertheless, the Court cannot ignore the USDA’s and OSHA’s authority over compliance with the Joint Guidance or the significant steps Smithfield has taken to reduce the risk of a COVID-19 outbreak at the Plant.

Colorado unemployment agency continues trend of ruling in favor of workers who decline to return to work

A previous post addressed the requirement that workers return to work — or face loss of unemployment — when an offer to return (to comparable work) is extended, unless the worker is a “vulnerable individual” or otherwise unable to return due to coronavirus-related reasons. As noted there, the initial report was that the state was tending to find in favor of employees by a large margin. The Denver Business Journal is reporting today that the state unemployment agency is continuing that trend, now finding 84% of the time in favor of workers.

Colorado Department of Labor and Employment officials have received about 1,100 submissions from employers about workers who have refused to come back to work in recent weeks and want to keep receiving jobless benefits. And of the 869 cases that CDLE officials have adjudicated, only 16% have ended in workers being told to return to their positions or give up their unemployment payments, chief communications officer Cher Haavind said.

In the vast majority of cases, workers claiming they can’t safely return to work fall into one of two categories delineated by federal and state law as allowing them to refuse to go back to an environment where they would interact with many co-workers or customers, Haavind said. One is that they are part of a vulnerable population that would make them more susceptible to catching coronavirus — people over age 65 or who have underlying medical conditions such as heart troubles or being immunocompromised. The second is that they are caring either for someone who is at increased risk of contracting the virus or are caring for a child out of school.

Supreme Court reaffirms importance of “but-for” analysis in certain kinds of discrimination claims against private employers

An on-going issue in litigation is frequently the standard of causation and whether a plaintiff’s allegations and evidence are established to meet it. One of the more strict standards is the “but-for” test, meaning a plaintiff must show that the adverse employment action (such as termination or refusal to hire) would not have occurred “but for” their membership in a protected class. One of the least strict standards requires the plaintiff to prove only that their membership in a protected class was “a motivating factor” in the decision.

Two recent Supreme Court decisions reinforced the role of “but-for” analysis in at least certain kinds of cases.

First in  Babb v. Wilkie, the Supreme Court held that governmental employers do not enjoy the protection of “but for” analysis in age discrimination claims, even though private employers have and continue to be able to assert the need for “but for” proof in age discrimination cases.

We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. 

Second in Comcast Corp. v. National Association of African American-Owned Mediaa unanimous Supreme Court held that a plaintiff asserting a sec. 1981 claim against a non-governmental defendant must meet the stricter “but-for” test, rather than the less strict “motivating factor” test.

Readers are reminded that the “motivating factor” test is the applicable test in some types of claims. As the Supreme Court explained in Comcast, the issue depends upon the specific statute, its language and its legislative history, as well as the extent of relief sought on the claim asserted.

DOL expands availability of overtime exemption for commissioned-employees working for a “retail or service establishment”

The nation’s leading wage-hour law (FLSA, the Fair Labor Standards Act) has long recognized an exemption from overtime for employees who work on a commission. However, the exemption is only available if the employee is working for a “retail or service establishment.”

To be a “retail or service establishment” the company “(a) (m)ust engage in the making of sales of goods or services; and (b) 75 percent of its sales of goods or services, or of both, must be recognized as retail in the particular industry; and (c) not over 25 percent of its sales of goods or services, or of both, may be sales for resale. ” 29 CFR 779.313. The DOL says that this means the business must have a “retail concept.” 29 CFR 779.316.

Typically a retail or service establishment is one which sells goods or services to the general public. It serves the everyday needs of the community in which it is located. The retail or service establishment performs a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process. (See, however, the discussion of section 13(a)(4) in §§ 779.346 to 779.350.) Such an establishment sells to the general public its food and drink. It sells to such public its clothing and its furniture, its automobiles, its radios and refrigerators, its coal and its lumber, and other goods, and performs incidental services on such goods when necessary. It provides the general public its repair services and other services for the comfort and convenience of such public in the course of its daily living. Illustrative of such establishments are: Grocery stores, hardware stores, clothing stores, coal dealers, furniture stores, restaurants, hotels, watch repair establishments, barber shops, and other such local establishments.

Quoting: 29 CFR 779.318

In addition to the definition of a “retail or service establishment,” the DOL had published a list of business that “may be recognized as retail” and another list that “may not be.” 29 CFR 779.317 and .320. The lists have been roundly criticized over the years. They were not internally consistent, they did not reflect changing realities of the business world, and they were formulated without first going through the formal regulatory process.

The DOL has withdrawn its lists. While the definition of “retail or service establishment” itself has not been affected, the withdrawal of the arbitrary unrealistic add-on lists is intended to make the commission exemption available to more businesses.

Employers who think they fit within the definition of “retail or service establishment” may now wish to consult with legal counsel about using the commissioned-employee overtime exemption, even if they previously were not on the “may be” list or even were previously on the “may not be” list.

Employers are reminded to confirm compliance with state and local law. For example in Colorado COMPS Order 36 has its own commissioned-employee exemption requirements (rule 2.4.2).

Source: DOL final rule, “Partial Lists of Establishments that Lack or May Have a ‘Retail Concept’ Under the Fair Labor Standards Act,” 85 Fed. Reg. 97 (May 19, 2020).

Considering a voluntary internal audit to prepare for Colorado’s new equal pay law?

Last year I co-authored an article for the Colorado Lawyer about Colorado’s new equal pay law (the Colorado Equal Pay for Equal Work Act, “CEPEWA”), with two of CEPEWA’s drafters, Sarah Parady and Charlotte Sweeney. CEPEWA will take effect January 1, 2021. In our article, we noted that CEPEWA “CEPEWA does not grandfather current pay disparities” and further that “proof of intent to discriminate is not an element of a CEPEWA violation.” We recommended employers consider performing a voluntary internal audit to identify and eliminate any inadvertent pay disparities. Indeed CEPEWA recognizes a possible reduction of exposure if internal audits are done.

A new article was just published in the Colorado Lawyer discussing what such an audit might look like.

Source: Mind the Gap: Practical Solutions to Minimize Pay Equity Claims, by Christine Lyman, Lonnie Giamela, and LaLonnie Gray, The Colorado Lawyer, vol. 49 no. 5 (May 2020)

NLRB amends and republishes its final rule “to protect employee free choice”

As previously posted on this blog, the NLRB issued a final rule “to protect employee free choice” altering its approach to blocking charges, voluntary recognition and construction industry (section 9(a)) voluntary recognition. The Board has amended and republished its final rule. The Board explained its final rule, including the amendments, as follows:

  • Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
  • Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
  • Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

NLRB delays effective date for revised representation procedures

As previously posted on this blog, the NLRB has reversed course on its Obama-era expedited election procedures. Originally scheduled to take effect April 16, 2020, the NLRB announced its final rule will now take effect May 31, 2020.

EEOC updates Q&A, specifically re employees with an underlying disability that puts them at “higher risk” re coronavirus

The EEOC updated its prior Q&A re coronavirus, adding three questions (numbered G3-G5) to address the needs of employees who already suffer from an underlying disability that, now, puts them at “higher risk” related to coronavirus.

First in questions G3-G4, the EEOC advises that an employer is obligated to consider whether a reasonable accommodation exists to permit such an individual to return to work once a request is made. Until a request is made, the employer has no obligation to consider the possibility of a reasonable accommodation. The EEOC explains too that the request need not be made formally — it may be made “in conversation or in writing” — and it need not be made by the employee themselves — it may be made by the employee “or a third party, such as an employee’s doctor.” Indeed the request need not even be a request, it is enough if the employee “let(s) the employer know that she needs a change for a reason related to” an underlying disability.

Question G4 confirms that an employer need not consider a reasonable accommodation even when the company knows the worker has an underlying disability that might put them at a “higher risk” related to coronavirus, until such a request is made. However where the employer is itself concerned that the employee’s disability might put them at a “higher risk” related to coronavirus, the employer cannot on its own initiative “exclude” the worker from work unless it can prove a “direct threat” to the worker’s own health (or the health of others) and, further, that the “direct threat” cannot be removed by reasonable accommodation, such as allowing “telework, leave, or reassignment” if reasonable. The EEOC discusses the possibility of showing such a “direct threat,” noting it “is a high standard,” with proof that “if, after going through all these steps (of considering the relevant risk, the possibility of reasonable accommodation, etc.), the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.”

Question G5 discusses possible accommodations that should be considered by an employer and worker in trying to determine if a reasonable accommodation might exist to permit a worker with an underlying disability to work despite a “higher risk” related to coronavirus (emphasis added).

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

Colorado unemployment disputes skyrocket as employers begin to offer returns to work that employees decline, with CDLE at least initially tending to rule for workers

As previously posted on this blog, the Colorado Department of Labor and Employment Unemployment created a new portal for employers to use to report when an employee refuses after being offered to return to work; the refusal will generally render the individual ineligible for further unemployment, unless the individual can prove they are “vulnerable” and that the company has inadequate coronavirus protections in place.

The Denver Business Journal is reporting that approximately 150 workers have already advised the Colorado Department of Labor and Employment that they do not wish to return to work and would rather stay on unemployment due to concerns about coronavirus, while 200 employers have used the new portal to report refusals.

How is the CDLE handling these disputes? The Denver Business Journal advises the agency is attempting to investigate each claim individually, without agency representatives actually going to jobsites though.

Instead, workers will be asked to explain what underlying condition they have that makes it unsafe for them to return to work or why they feel the workplace is an unsafe environment, and employers will be asked if the worker is coming back at the same job and pay rate and if efforts have been made at increased sanitation and social distancing.

Who’s winning these disputes? For now the Denver Business Journal reports the CDLE is ruling generally in favor of the workers.

So far, CDLE officials, who have gone through about 55 claims, are coming down on the sides of the workers at a ratio of about 10-to-1, said Jeff Fitzgerald, unemployment insurance division director.

The CDLE does not explain in the article how it plans to address this issue going-forward especially if, as reported in the Denver Post, the combination of traditional unemployment benefits plus pandemic unemployment benefits is high enough that a “majority” of workers in Colorado are actually earning more money on unemployment currently than they would in their job if returned.

The cutoff point is around $30 an hour in Colorado, according to the study by Gregory Miller, a CFA and graduate researcher at CSU. Make more than that and the financial incentive is to return to work. Make less than that, and collecting unemployment pays better, especially if a job doesn’t come with health insurance and other benefits.

The combination of that “financial incentive” plus health concerns about the possible coronavirus-related implications of returning to work around others, even subject to Colorado’s social distancing guidelines, means the CDLE is going to be required to address many, many more such disputes going-forward.

Looking for a short primer on which expenses are forgivable and how to maximize the forgiveness of a PPP loan?

Here’s a handy short primer on PPP loans, discussing which expenses are forgivable and steps employers can take to maximize the forgiveness of a PPP loan.

Which Paycheck Protection Program Expenses Are Eligible for Forgiveness?
— Read on www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Paycheck-Protection-Program-Expense-Forgiveness.aspx

Trying to prepare your EEO-1 data filing in the midst of coronavirus pandemic? FYI, the EEOC just delayed EEO-1 data collection for 2020 due to coronavirus

The EEOC has delayed EEO-1 data collection for 2020 until 2021 due to coronavirus. In its press release, the EEOC explained the delay, as follows:

The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing. Filers of the EEO-1, EEO-3and EEO-5, which include private sector employers, local referral unions, and public elementary and secondary school districts, are dealing with unique and urgent issues. Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner.

EEO-1, EEO-3 and EEO-5 filers should begin preparing to submit data in 2021. Pending approval from the Office of Management and Budget under the Paperwork Reduction Act (PRA) the EEOC would expect to begin collecting the 2019 and 2020 EEO-1 Component 1 in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available. The EEOC would expect to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021 and will notify filers of the precise date the surveys will open as soon as it is available.

In addition to updates to the agency website, the EEOC will be reaching out directly to EEO-1, 3, and 5 filers regarding the delayed opening of the surveys.

The EEOC will formally publish its announcement in the Federal Register, to appear, starting 5/8/2020, here.

DOL issues new model COBRA notices to address growing wave of litigation

The DOL has issued a new set of model COBRA notices that may be used to comply with COBRA’s requirements, along with a set of explanatory Q&A’s. The DOL’s model COBRA forms are not required to be used, they are intended to reduce litigation exposure by helping to “to ensure that qualified beneficiaries better understand the interactions between Medicare and COBRA.”

Employers should immediately contact their health insurance and benefits providers and plan administrators to ensure they are using the correct COBRA documentation.

California sues Uber and Lyft alleging driver misclassification

In furtherance of California’s AB 5, the State of California has sued Uber and Lyft, seeking to re-characterize their drivers as employees, not independent contractors. The State summarized its case in the introductory paragraphs of its Complaint, as follows:

5. Uber and Lyft are transportation companies in the business of selling rides to customers, and their drivers are the employees who provide the rides they sell.  The fact that Uber and Lyft communicate with their drivers by using an app does not suddenly strip drivers of their fundamental rights as employees.

6. But rather than own up to their legal responsibilities, Uber and Lyft have worked relentlessly to find a work-around.  They lobbied for an exemption to A.B. 5, but the Legislature declined.  They utilize driver contracts with mandatory arbitration and class action waiver provisions to stymie private enforcement of drivers’ rights.  And now, even amid a once-in-a century pandemic, they have gone to extraordinary lengths to convince the public that their unlawful misclassification scheme is in the public interest.  Both companies have launched an aggressive public relations campaign in the hopes of enshrining their ability to mistreat their workers, all while peddling the lie that driver flexibility and worker protections are somehow legally incompatible.

7. Uber’s and Lyft’s motivation for breaking the law is simple: by misclassifying their drivers, Uber and Lyft do not “bear any of [the] costs or responsibilities” of complying with the law.  (Dynamex, supra, 4 Cal.5th at p. 913.)  When addressing investors, Uber pulls no punches:  “Our business would be adversely affected if Drivers were classified as employees instead of independent contractors.”  (Uber Securities and Exchange Com. (“SEC”) S-1, p. 28 [Filing Date: April 11, 2019].)

8. As one federal district judge recently observed: “[R]ather than comply with a clear legal obligation, companies like Lyft are thumbing their noses at the California Legislature . . . .”  (Rogers v. Lyft (N.D. Cal. Apr. 7, 2020, No. 20-CV-01938-VC) ___ F.Supp.3d ___ [2020 WL 16484151, at *2].) 9. The State’s laws against employee misclassification protect all Californians.  They protect workers by ensuring they receive the compensation and benefits they have earned through the dignity of their labor.  (Dynamex, supra, 4 Cal.5th at p. 952.)   They protect “law-abiding” businesses from “unfair competition,” and prevent the “race to the bottom” that occurs when businesses adopt “substandard wages” and “unhealthy [working] conditions,” threatening jobs and worker protections across entire industries.  (Id. at pp. 952, 960.)  They protect the tax-paying public, who is often called upon to “assume responsibility” for “the ill effects to workers and their families” of exploitative working arrangements.  (Id. at p. 952-53.)  They are a lifeline and bulwark for the People against the “erosion of the middle class and the rise in income inequality.”  (A.B. 5, § 1(c).) 10. The time has come for Uber’s and Lyft’s massive, unlawful employee misclassification schemes to end.  The People bring this action to ensure that Uber and Lyft ridehailing drivers—the lifeblood of these companies—receive the full compensation, protections, and benefits they are guaranteed under law, to restore a level playing field for competing businesses, and to preserve jobs and hard-won worker protections for all Californians.

The Complaint seeks to have Uber and Lyft’s drivers re-classified as employees, not independent contractors, the imposition of statutory penalties, and an open-ended to-be-proved basket of remedies involving “minimum wages, overtime wages, business expenses, meal and rest periods, wage statements, paid sick leave and health benefits, and social insurance programs.”

Although the drivers at-issue may have entered into arbitration agreements, it is anticipated the State’s lawsuit will not be subject to arbitration because, in this case, it is the State that has filed suit, and the State was not party to the driver arbitration agreements.

OSHA publishes guidance for employers on how to establish a safe workplace in the coronavirus pandemic

As essential industries struggle to stay open and as more and more companies look to reopen, OSHA has published a “Guidance for Preparing Workplaces for Coronavirus.” The guidance provides specific recommendations for workplace structuring, cleaning, protective equipment, etc., broken down for different kinds of jobs, based on their risk of exposure to coronavirus. Employers will want to review the guidance with their safety professionals. 

Employers are reminded to check any state and local requirements as well for their workplaces. For example, Cal-OSHA has published its own requirements. Colorado has published a page containing its extensive suggestions; Pinnacol has offered its own suggestions here.

Colorado Unemployment releases website to report an employee’s refusal to return to work

In Colorado, Governor Polis’ safer-at-home order remains in effect but permits certain employers to begin reopening subject to certain conditions at various times.

What if an employer decides to reopen in accordance with that order, but an employee feels they would be “safer at home,” may that employee decline an offer to return to work and continue to receive unemployment (traditional and/or pandemic) benefits? 

The Colorado Department of Labor and Employment has issued a FAQ explaining that it will depend on the circumstances. As a general rule, the answer is, no, that worker may not choose to decline the offer, without losing unemployment; in other words, that worker would, be declining the offer to return to work, become ineligible for further unemployment benefits. That general rule allows one exception for workers who can establish they are “vulnerable” and further that the company’s workplace lacks sufficient precautions to permit safe distancing, etc.

What if my employer is requiring me to return to work but I don’t feel safe?
● Per Safer at Home Executive Order D 2020 044, no vulnerable individuals can be compelled by their employer to return to work if their work requires in person work near others.
● Employers must accommodate vulnerable individuals with remote work options, if the work can be done remotely.
● If you refuse to return to work due to unsatisfactory or hazardous working conditions based on your status as a member of a vulnerable group, you may continue to be eligible for benefits based on the risk to your health.
● If you refuse to return to work due to unsatisfactory or hazardous working conditions because you reside with a person who is a member of a vulnerable group, you may continue to be eligible for benefits based on the risk to the health of your co-inhabitant.
● If an employer requires work from an employee entitled to paid leave (due to illness or a quarantine/isolation order) under the Colorado HELP Rules, that would be unlawful under those rules, and should be reported to the contact information at the bottom of these FAQs.
● Any other possible violations of social distancing, or other health and safety orders, should be reported to the federal Occupational Safety and Health Administration or County health officials. https://www.osha.gov/contactus/bystate/CO/areaoffice

How will an employer notify the Colorado Department of Labor and Employment that a return offer has been declined?

Apparently anticipating the possibility that many people will want to decline offers to return to work, the CDLE has opened a special portal to permit companies to report that an offer to return was extended and declined.

Employees and companies alike should review the CDLE’s information. Individuals should realize that Governor Polis’ stay-at-home order does not give everyone the option to decline a return to work. As a general rule, an individual who declines an offer to return to work will lose unemployment. Companies can use the CDLE’s portal to report that the return offer was declined. Both individuals and companies should realize there may be exceptions for individuals who can show they are “vulnerable” and that the company’s safety precautions (social distancing, face-covering, etc.) are inadequate.

Colorado Court of Appeals issues strong ruling on “horizontal veil piercing”

The Colorado Court of Appeals issued a strong decision involving “horizontal veil piercing.” The case involved a junior creditor suing his debtor and its senior creditor, alleging that the debtor and senior creditor were commonly owned. The debtor was owned in large part (81.25%) by the same five owners who owned 100% of a third company, which in turn owned 100% of the senior creditor. The junior creditor argued that the corporate veils between the entities should be pierced, that they were all “alter egos” of each other. The debtor argued that the senior creditor had been created solely for the purpose of holding the senior debt, which had subordinated his own claim.

Although the trial court had ruled in the plaintiff’s favor, the Colorado Court of Appeals reversed. The court held that the sister entities’ veils could only be pierced if the corporate veil between each of the entities and their respective owners were pierced. Here the court held that the plaintiff had failed to muster sufficient evidence to warrant piercing all of the corporate veils involved.

In so ruling the court re-affirmed that it is not sufficient to show common owners, and/or even common officers and directors. Commonality of owners, officers and directors is common in corporate structuring. Additionally it was not sufficient to show that the one entity had been (arguably) created for the purpose of holding the senior debt simply to keep the plaintiff subordinate; even if true, holding a note is a lawful purpose for which an entity may be formed.

Source: Dill v. Rembrandt Group, Inc., 2020 COA 69 (Colo.App. 4/16/2020).

Legal questions about coronavirus, unemployment, stimulus payments, layoffs, etc.?

I will be on 850 KOA and taking calls with the hosts:

  • Tomorrow morning on the Logan & Lewis show probably starting around 10:05 AM
  • Saturday afternoon on the Mike Rice show probably starting around 4:05 PM

Colorado joins California, New York, New Jersey and Virginia by banning discrimination on the basis of hairstyles

Colorado will be adding to the list of protected classes against which discrimination is prohibited “hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race.” Because the current legislative session has been extended due to the on-going coronavirus events, we do not know the precise date when this new law will take effect. It has been signed by Governor Polis. By its own terms, this new law will “effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 5, 2020, if adjournment sine die is on May 6, 2020)” unless extended by a referendum petition (parenthetical in original). Employers should consider revising their EEO policies and handbooks to add this to the list of protected classes against which they will not permit discrimination.

Wondering why the new coronavirus-related unemployment compensation (CARES Act unemployment benefits) are taking so long?

Visitors to Colorado’s unemployment page at the Colorado Department of Labor and Employment will see this update regarding the status of the new coronavirus-related unemployment benefits that will be available under the CARES Act:

Update as of April 12, 2020: We are still programming our systems to begin accepting claims for workers who are eligible for benefits related to the CARES Act, including those who are self-employed (retroactive as far back as February 2 or when your work stopped as a direct result of COVID-19). Programming is also underway for the Federal Pandemic Unemployment Compensation, which is $600/week additional benefit (retroactive to March 29). Claimants DO NOT need to take action for the additional $600 benefit. Benefits will be retroactive and eligible claimants will not lose benefits while you wait to file a claim. We appreciate your understanding.

If you are a traditional employee or pay premiums for your own wages, and are not working or had your hours reduced,  file a regular unemployment claim:

  • If your last name begins with a letter from A to M: Please file your unemployment claim on a Sunday, Tuesday, Thursday, or after 12 noon on Saturday.
  • If your last name begins with a letter from N to Z: Please file your unemployment claim on Monday, Wednesday, Friday, or before 12 noon on Saturday.

The CDLE should be commended for at least providing this update, and note it did so over the weekend on Easter Sunday. Indeed the CDLE reports it has on-boarded many new workers to process these payments and is working long hours to make it possible.

Readers who are curious, even frustrated, that it is taking so long may be interested in this article just published by Bloomberg BNA detailing some of the technical, legal, security and practical issues that each of the various states is facing as they all try to find ways to use systems that were never designed for this volume or type of payment, to accommodate this new federal program.

 

Questions or want to talk about legal issues related to coronavirus, layoffs, stimulus, etc.?

I’ll be on 850 KOA talking about relief available for small businesses and workers, and other legal aspects of coronavirus with Mike Rice this Saturday from 4:05 PM to probably just before 4:30 PM MT. Tune in or stream.

Documentation and forms for requesting FFCRA coronavirus-related sick leave and coronavirus-related FMLA leave

In a prior post, it was noted that the DOL had issued its final rules regulating the FFCRA. As explained there, the DOL regulations summarize the documentation that employers should keep for coronavirus-sick and coronavirus-FMLA leave granted under the FFCRA.

→Reminder: FFCRA-covered employers are reminded that in addition to this required documentation, they must have already posted-distributed an FFCRA poster.

In terms of the documentation required in the new DOL regulations, the IRS has also issued its own guidance regarding documentation that will be required for FFCRA (in other words, CARES Act) tax credits:

How Should an Employer Substantiate Eligibility for Tax Credits for Qualified Leave Wages?

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee should include the name of the governmental entity ordering quarantine or the name of the health care professional advising self-quarantine, and, if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the statement from the employee should include the name and age of the child (or children) to be cared for, the name of the school that has closed or place of care that is unavailable, and a representation that no other person will be providing care for the child during the period for which the employee is receiving family medical leave and, with respect to the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide care.

An Eligible Employer will substantiate eligibility for the sick leave or family leave credits if, in addition to the information set forth in FAQ 44 (“What information should an Eligible Employer receive from an employee and maintain to substantiate eligibility for the sick leave or family leave credits?”), the employer creates and maintains records that include the following information:

  1. Documentation to show how the employer determined the amount of qualified sick and family leave wages paid to employees that are eligible for the credit, including records of work, telework and qualified sick leave and qualified family leave.
  2. Documentation to show how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. See FAQ 31 (“Determining the Amount of Allocable Qualified Health Plan Expenses”) for methods to compute this allocation.
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the employer submitted to the IRS.
  4. Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).

An Eligible Employer should keep all records of employment taxes for at least 4 years after the date the tax becomes due or is paid, whichever comes later.  These should be available for IRS review.

Employers looking to develop forms for requesting the coronavirus-related sick leave or the coronavirus-related FMLA leave may wish to start with two such forms recently published by the Society for Human Resource Management (SHRM) on its coronavirus-page of resources, then consult with their own legal counsel and tax professional to ensure they will not only comply with the FFCRA’s requirements but also be able to assert the available tax credits.

NLRB published final rule revising employee representation procedures

The NLRB issued a final rule making “three amendments to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships.” The Board has summarized the amendments to its regulations as follows:

  • Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
  • Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
  • Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.

Turn on your radios this Saturday 850 KOA, or stream, 5:05-6:00 PM

I’ll be on 850 KOA talking about relief available for small businesses and workers, and other legal aspects of coronavirus with Mike Rice this Saturday from 4:05 PM to probably just before 4:30 PM MT. Tune in or stream.

Looking for a handy summary of coronavirus relief for businesses?

www.moyewhite.com/getmedia/45dfc85d-3c2a-4b53-b5ac-43dd6be23c6f/covidrelief_Part3_v2.pdf

Questions? Contact Lynne Hanson, Esq., Moye White, LLP, 303-292-7927.

DOL issues regulations under the FFCRA regarding newly mandated coronavirus sick- and FMLA- leave

The DOL has issued regulations implementing the FFCRA’s newly mandated coronavirus sick- and FMLA-leave. The regulations address many topics, including the following highlights. Look for additional information as the new regulations are analyzed.

  • The definition of “Telework,” which includes the statement that an employee is not “able to Telework” if there are any “extenuating circumstances (such as serious COVID-19 symptoms) that prevent
    the Employee from performing that work” (parenthetical in original), sec. 826.10.
  • A flesh-out of each of the six reasons that qualify for the new paid coronavirus sick leave, sec. 826.20. This includes specifically with regard to reason 4 (“seeking medical diagnosis for COVID-19”) that the employee need merely be “experiencing any of the” recognized symptoms of COVID-19, which be only a “dry cough.” However, leave is limited to the time the employee is ” unable to work because the Employee is taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.”
  • The DOL also clarified in sec. 826.20(b), and especially in its prefatory language explaining that new regulatory language, that both the new coronavirus sick- and FMLA- leaves will be available when a parent is needed to care for a child who is under 18 years old or (clarifying what had seemed language in the new law that contradicted the actual FMLA) who is “18 years of age or older and incapable of self-care because of a mental or physical disability.”
  • How the amount of coronavirus sick- and FMLA- leave should be calculated, and how pay for the same should be calculated, sec. 826.21-.25.
  • How eligibility for the new coronavirus FMLA-leave is determined. As previously noted, the new coronavirus sick leave is available to all employees of a covered employer, while the new coronavirus FMLA leave is available only to employees who have been on payroll for at least 30 calendar days. Sec. 826.30 explains how that is to be calculated.
  • How employees are to be counted to determine if the employer is covered, i.e., if the employer employers fewer than 500 employees, sec. 826.40. All employees are to be counted. One part-time employee counts as one employee (not 1/2 for example). Employees who work for the company count even if they also count as employees of a Joint Employer. Likewise, true independent contractors are not counted. Employees of affiliated entities generally will count towards their actual employer (not its affiliate), again absent joint-employer status.
  • Sec. 826.40 also explains that the small business exemption available to employers of fewer than 50 is available, upon self-certification (that must be documented, preserved but not filed with DOL unless requested) by “an authorized officer of the business” that:

(i) The leave requested under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

(ii) The absence of the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

(iii) There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the Employee or Employees requesting leave under either section 102(a)(1)(F) of the FMLA or section 5102(a)(5) of the EPSLA, and these labor or services are needed for the small business to operate at a minimal capacity.

  • How intermittent leave will work and that, unlike regular FMLA leave, intermittent leave for both the new coronavirus sick- and FMLA-leaves will be available ” only if the Employer and Employee agree. The Employer and Employee may memorialize in writing any agreement under this section, but a clear and mutual understanding between the parties is sufficient.” Sec. 826.50. Also that these new leaves are available to an employee who has been offered Telework “only when the Employee is unavailable to Telework because of a COVID-19 related reason” (see also above regarding the definition of Telework).
  • Sec. 826.60 provides for the two new leaves to run concurrently in certain situations, if both are needed, with the new coronavirus sick leave being used first, and an employee who exhausts these paid leaves may choose, but not be required to substitute other paid leave to cover the unpaid portion of any gap.
  • Sec. 826. 90 explains the types of notice that an employee can be required to give, which include rules generally prohibiting the requirement of notice sooner than “after the first workday (or portion thereof) for which an Employee takes” the new leave (parenthetical in original) and requiring an employer to give notice and an opportunity to provide required documentation prior to denying the request for leave. For example sec. 826.90 provides, as follows:

 Notice may not be required in advance, and may only be required after the first workday (or portion thereof) for which an Employee takes Paid Sick Leave or Expanded Family and Medical Leave. After the first workday, it will be reasonable for an Employer to require notice as soon as practicable under the facts and circumstances of the particular case. Generally, it will be reasonable for notice to be given by the Employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the Employee is unable to do so personally.

  • Sec. 826. 100 provides further explanation of the kinds of documentation that can be required for particular types of leave needed.

 826.100 Documentation of Need for Leave.

(a) An Employee is required to provide the Employer documentation containing the following information prior to taking Paid Sick Leave under the EPSLA [sick leave] or Expanded Family and Medical Leave under the EFMLEA:

(1) Employee’s name;

(2) Date(s) for which leave is requested;

(3) Qualifying reason for the leave; and

(4) Oral or written statement that the Employee is unable to work because of the qualified reason for leave.

(b) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(i), an Employee must additionally provide the Employer with the name of the government entity that issued the Quarantine or Isolation Order.

(c) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(ii) an Employee must additionally provide the Employer with the name of the health care provider who advised the Employee to self-quarantine due to concerns related to COVID-19.

(d) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(iii) an Employee must additionally provide the Employer with either:

(1) the name of the government entity that issued the Quarantine or Isolation Order to which the individual being care for is subject; or

(2) The name of the health care provider who advised the individual being cared for to self quarantine due to concerns related to COVID-19.

(e) To take Paid Sick Leave for a qualifying COVID-19 related reason under § 826.20(a)(1)(v) or Expanded Family and Medical Leave, an Employee must additionally provide:

(1) the name of the Son or Daughter being cared for;

(2) the name of the School, Place of Care, or Child Care Provider that has closed or become unavailable; and

(3) a representation that no other suitable person will be caring for the Son or Daughter during the period for which the Employee takes Paid Sick Leave or Expanded Family and Medical Leave.

(f) The Employer may also request an Employee to provide such additional material as needed for the Employer to support a request for tax credits pursuant to the FFCRA. The Employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. For more information, please consult https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided
by-small-and-midsize-businesses-faqs.

  • Sec. 826.130 guarantees the worker a “right to be restored to the same or an equivalent position” if the job still exists, in other words, the section also clarifies that the “Employee is not protected from employment actions, such as layoffs, that would have affected the Employee regardless of whether he or she took leave. In order to deny restoration to employment, an Employer must be able to show that an Employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.” The section also recognizes that very small employers of fewer than 25 employees (see above regarding counting) may be protected by an exemption from the restoration obligation subject to four conditions set forth in sec. 826.130(b)(3).
  •  Sec. 826.140 details recordkeeping requirements for four years.

Midsized businesses applying for certain loan under the CARES Act should be aware that terms may include a union-neutrality obligation for the term of the loan

Companies employing 500-10,000 workers should be aware, when considering loans under the CARES Act that sec. 4003(c)(3)(D)(I)(X) will require, as a term of that loan, that they “remain neutral in any union organizing effort for the term of the loan.” That language (emphasis added) reads, as follows:

(D) Assistance for mid-sized businesses.–
(i) In general.–Without limiting the terms and
conditions of the programs and facilities that the
Secretary may otherwise provide financial assistance to
under subsection (b)(4), the Secretary shall endeavor to
seek the implementation of a program or facility described
in subsection (b)(4) that provides financing to banks and
other lenders that make direct loans to eligible businesses
including, to the extent practicable, nonprofit
organizations, with between 500 and 10,000 employees, with
such direct loans being subject to an annualized interest
rate that is not higher than 2 percent per annum. For the
first 6 months after any such direct loan is made, or for
such longer period as the Secretary may determine in his
discretion, no principal or interest shall be due and
payable. Any eligible borrower applying for a direct loan
under this program shall make a good-faith certification
that–

(I) the uncertainty of economic conditions as of
the date of the application makes necessary the loan
request to support the ongoing operations of the
recipient;
(II) the funds it receives will be used to retain
at least 90 percent of the recipient’s workforce, at
full compensation and benefits, until September 30,
2020;
(III) the recipient intends to restore not less
than 90 percent of the workforce of the recipient that
existed as of February 1, 2020, and to restore all
compensation and benefits to the workers of the
recipient no later than 4 months after the termination
date of the public health emergency declared by the
Secretary of Health and Human Services on January 31,
2020, under section 319 of the Public Health Services
Act (42 U.S.C. 247d) in response to COVID-19;
(IV) the recipient is an entity or business that is
domiciled in the United States with significant
operations and employees located in the United States;
(V) the recipient is not a debtor in a bankruptcy
proceeding;
(VI) the recipient is created or organized in the
United States or under the laws of the United States
and has significant operations in and a majority of its
employees based in the United States;
(VII) the recipient will not pay dividends with
respect to the common stock of the eligible business,
or repurchase an equity security that is listed on a
national securities exchange of the recipient or any
parent company of the recipient while the direct loan
is outstanding, except to the extent required under a
contractual obligation that is in effect as of the date
of enactment of this Act;
(VIII) the recipient will not outsource or offshore
jobs for the term of the loan and 2 years after
completing repayment of the loan;
(IX) the recipient will not abrogate existing
collective bargaining agreements for the term of the
loan and 2 years after completing repayment of the
loan; and
(X) that the recipient will remain neutral in any
                union organizing effort for the term of the loan.

850 KOA listeners, check out this article

Thank you to all the great callers and 850 KOA host, the amazing Mike Rice. This New York Times article just came out and will be of interest to many of today’s callers. I’m looking forward to talking with you all again soon. We will get through this together. Colorado strong!

DOL updates its Q&A re new coronavirus sick-/FMLA- leave law

The DOL has updated its Q&A regarding the new coronavirus sick-/FMLA- leaves. Added answers include:

  • Employees who are already or who become subject to layoffs/furloughs will generally not be entitled to either of these new leaves.
  • Employees who are assigned to telework are only entitled to these new leaves if they are unable to telework as a result of one of the qualifying reasons for these sick-/FMLA-leaves.
  • Employees, including teleworking employees, are entitled to intermittently take both of these new sick-/FMLA-leaves (assuming they meet one of the qualifying reasons).

Employers of fewer than 500 should review the updated Q&A immediately in its entirety.

BREAKING NEWS: DOL has issued the poster REQUIRED to be “posted” re coronavirus sick-/FMLA- leave

Employers who are subject to the new FFCRA (Families First Coronavirus Response Act) sick-/FMLA- leave are required to post a poster by the FFCRA’s effective date, April 1, 2020. The EEOC has just issued the required poster along with a Q&A that answers common questions employers will have regarding the same, including explaining that, where a workplace has suffered reductions due to coronavirus it may be necessary to issue the poster by email or so-called snail mail — but not to already furloughed or laid off workers nor in languages other than English. The Q&A provides, as follows:

 

DEFINITIONS

“Paid sick leave” – means paid leave under the Emergency Paid Sick Leave Act.

“Expanded family and medical leave” – means paid leave under the Emergency Family and Medical Leave Expansion Act.

QUESTIONS & ANSWERS

  1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.
  2. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

    In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

  3. If I am a private sector employer and have 500 or more employees, do the Acts apply to me?No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.[1]
  4. If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.
  5. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave?A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.
  6. When calculating pay due to employees, must overtime hours be included?Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.However, the Emergency Paid Sick Leave Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

    If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

    Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

    Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

  7. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?It depends on your normal schedule as well as why you are taking leave.If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:
    • your regular rate of pay,
    • the federal minimum wage in effect under the FLSA, or
    • the applicable State or local minimum wage.

    In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

    If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.

    Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.

    If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

    To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.

  8. What is my regular rate of pay for purposes of the FFCRA?For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.If you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

    You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

  9. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.
  10. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  11. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.
  12. Is all leave under the FMLA now paid leave?No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
  13.  Are the paid sick leave and expanded family and medical leave requirements retroactive?No.
  14. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave?You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.
  15. What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits.  If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.
  16. What documents do I need to give my employer to get paid sick leave or expanded family and medical leave?You must provide to your employer documentation in support of your paid sick leave as specified in applicable IRS forms, instructions, and information.Your employer may also require you to provide additional in support of your expanded family and medical leave taken to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from your child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to you from an employee or official of the school, place of care, or child care provider. Your employer must retain this notice or documentation in support of expanded family and medical leave, including while you may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.

    Please also note that all existing certification requirements under the FMLA remain in effect if you are taking leave for one of the existing qualifying reasons under the FMLA. For example, if you are taking leave beyond the two weeks of emergency paid sick leave because your medical condition for COVID-19-related reasons rises to the level of a serious health condition, you must continue to provide medical certifications under the FMLA if required by your employer.

  17. When am I able to telework under the FFCRA?You may telework when your employer permits or allows you to perform work while you are at home or at a location other than your normal workplace. Telework is work for which normal wages must be paid and is not compensated under the paid leave provisions of the FFCRA.
  18. What does it mean to be unable to work, including telework for COVID-19 related reasons?You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.
  19. If I am or become unable to telework, am I entitled to paid sick leave or expanded family and medical leave?If your employer permits teleworking—for example, allows you to perform certain tasks or work a certain number of hours from home or at a location other than your normal workplace—and you are unable to perform those tasks or work the required hours because of one of the qualifying reasons for paid sick leave, then you are entitled to take paid sick leave.Similarly, if you are unable to perform those teleworking tasks or work the required teleworking hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, then you are entitled to take expanded family and medical leave. Of course, to the extent you are able to telework while caring for your child, paid sick leave and expanded family and medical leave is not available.
  20. May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.

    The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.

  21. May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
    • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
    • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

    Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

    If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

    In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

    The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

  22. May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.
  23. If my employer closed my worksite before April 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?No. If, prior to the FFCRA’s effective date, your employer sent you home and stops paying you because it does not have work for you to do, you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.
  24. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  25. If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  26. If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  27. If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State, or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx. If your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.
  28. If my employer reduces my scheduled work hours, can I use paid sick leave or expanded family and medical leave for the hours that I am no longer scheduled to work? No. If your employer reduces your work hours because it does not have work for you to perform, you may not use paid sick leave or expanded family and medical leave for the hours that you are no longer scheduled to work. This is because you are not prevented from working those hours due to a COVID-19 qualifying reason, even if your reduction in hours was somehow related to COVID-19.You may, however, take paid sick leave or expanded family and medical leave if a COVID-19 qualifying reason prevents you from working your full schedule. If you do, the amount of leave to which you are entitled is computed based on your work schedule before it was reduced (see Question 5).
  29. May I collect unemployment insurance benefits for time in which I receive pay for paid sick leave and/or expanded family and medical leave?No. If your employer provides you paid sick leave or expanded family and medical leave, you are not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced. Therefore, individuals should contact their State workforce agency or State unemployment insurance office for specific questions about eligibility. For additional information, please refer to https://www.careeronestop.org/LocalHelp/service-locator.aspx.
  30. If I elect to take paid sick leave or expanded family and medical leave, must my employer continue my health coverage? If I remain on leave beyond the maximum period of expanded family and medical leave, do I have a right to keep my health coverage?If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA, which generally applies to employers with 20 or more employees, allows you and your family to continue the same group health coverage at group rates. Your share of that cost may be higher than what you were paying before but may be lower than what you would pay for private individual health insurance coverage. (If your employer has fewer than 20 employees, you may be eligible to continue your health insurance under State laws that are similar to COBRA. These laws are sometimes referred to as “mini COBRA” and vary from State to State.) Contact the Employee Benefits Security Administration at https://www.dol.gov/agencies/ebsa/workers-and-families/changing-jobs-and-job-loss to learn about health and retirement benefit protections for dislocated workers.

    If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.

  31. As an employee, may I use my employer’s preexisting leave entitlements and my FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?No. If you are eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by your employer, unless your employer agrees you must choose one type of leave to take. You may not simultaneously take both, unless your employer agrees to allow you to supplement the amount you receive from paid sick leave or expanded family and medical leave under the FFCRA, up to your normal earnings, with preexisting leave. For example, if you are receiving 2/3 of your normal earnings from paid sick leave or expanded family and medical leave under the FFCRA and your employer permits, you may use your preexisting employer-provided paid leave to get the additional 1/3 of your normal earnings so that you receive your full normal earnings for each hour.
  32. If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including Federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.
  33. If I am an employer, may I require an employee to supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?No. Under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under your paid leave policy to supplement or adjust the paid leave under the FFCRA.
  34. If I want to pay my employees more than they are entitled to receive for paid sick leave or expanded family and medical leave, can I do so and claim a tax credit for the entire amount paid to them?You may pay your employees in excess of FFCRA requirements. But you cannot claim, and will not receive tax credit for, those amounts in excess of the FFCRA’s statutory limits.
  35. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Family and Medical Leave Expansion Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Family and Medical Leave Expansion Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the amount of paid family and medical leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  36. I am an employer that is part of a multiemployer collective bargaining agreement, may I satisfy my obligations under the Emergency Paid Sick Leave Act through contributions to a multiemployer fund, plan, or program?You may satisfy your obligations under the Emergency Paid Sick Leave Act by making contributions to a multiemployer fund, plan, or other program in accordance with your existing collective bargaining obligations. These contributions must be based on the hours of paid sick leave to which each of your employees is entitled under the Act based on each employee’s work under the multiemployer collective bargaining agreement. Such a fund, plan, or other program must allow employees to secure or obtain their pay for the related leave they take under the Act. Alternatively, you may also choose to satisfy your obligations under the Act by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement.
  37. Are contributions to a multiemployer fund, plan, or other program the only way an employer that is part of a multiemployer collective bargaining agreement may comply with the paid leave requirements of the FFCRA?No. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that, consistent with its bargaining obligations and collective bargaining agreement, an employer may satisfy its legal obligations under both Acts by making appropriate contributions to such a fund, plan, or other program based on the paid leave owed to each employee. However, the employer may satisfy its obligations under both Acts by other means, provided they are consistent with its bargaining obligations and collective bargaining agreement.

With that, the DOL issued two additional Q&A’s re how coronavirus relates to the FLSA (Fair Labor Standards Act) and the FMLA(Family and Medical Leave Act).

 

 

DOL issues enforcement guidance urging staff to recognize a “temporary non-enforcement period” for “reasonable” and “good faith” compliance

The DOL issued Field Assistance Bulletin no. 2020-1 urging its staff to recognize a “temporary non-enforcement period” for employers who are in “reasonable” and “good faith” compliance. To qualify for the benefit of this “non-enforcement period,” the employer must establish all of the following:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [2]  this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.[3]

  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).

  3. The Department receives a written commitment from the employer to comply with the Act in the future.

In other words, an employer who has taken no steps to try to come into compliance with the FFCRA (Families First Coronavirus Response Act) will likely not qualify for the benefits of this “temporary non-enforcement period,” and an employer that has at least tried may qualify for some mitigation but will nonetheless be required to come into compliance, though it may have some time to remedy the violation “as soon as practicable” and may have the benefit of not having the DOL taking further enforcement actions against it in the meantime.

EEOC publishes YouTube webinar on ADA, Rehabilitation Act and coronavirus

The EEOC published a short 42-minute YouTube video on the ADA, Rehabilitation Act and coronavirus.  The webinar fleshes out the EEOC’s recent coronavirus guidance and identifies certain questions that it believes it is currently unable to answer, including the following:

  • Whether coronavirus (COVID-19) is or could be a disability protected by the ADA?

Questions addressed include, in addition to those raised in the above guidance:

  • Whether an employer can ask an employee if his/her family has tested positive for coronavirus? Here, the EEOC believes that question is too narrow, because it is limited to questions about the employee’s family and as such the EEOC says it believes the question might implicate the Genetic Information Nondiscrimination Act (GINA); therefore, the EEOC urges employers instead to ask if the employee has had any such contact with anyone whom he/she knows to have tested positive.
  • Whether an employer, when disclosing that someone has tested positive, can disclose that person’s identity? The EEOC repeats its position in its above guidance’s instruction that employers, upon learning of a positive coronavirus test result, have some ability to disclose the same within a true need-to-know basis, and that it may be able to disclose to co-workers that someone has tested positive, but it repeats the employer should not generally report the person’s identity. That is true, the EEOC says, even where coworkers may be guessing or attempting to guess at the person’s identity. It gives as an example that the company may report that a person is teleworking without telling his coworker’s that the reason for his absence from the workplace is a positive test result. Likewise the EEOC addresses the issue where an employer may be faced with a concern that disclosing something as general as “someone at this location” or “someone on the 4th floor” has tested positive, is not sufficient information for concerned coworkers; here too, the EEOC restates its position that, even in that situation, the employer should not disclose the person’s identity. 
  • Whether allowing workers to telework during the coronavirus crisis may be later used by a disabled worker requesting the right to telework after the coronavirus crisis? The EEOC answers flatly, no, the fact that an employer allows teleworking during this coronavirus crisis cannot be used as evidence that teleworking might be a reasonable accommodation outside the coronavirus crisis. However in an unhelpful muddling of its answer, the EEOC added that it “could” be somehow relevant to showing that telework was in general feasible at least in some circumstances, theoretically.

The EEOC says that, while teleworking, HR professionals and others with a need-to-know medical information must store information, even at home, in a confidential manner, including not leaving notes where they can be seen. In a frankly absurd moment, the EEOC actually recommends HR professionals consider writing their notes while teleworking “in code.”

The EEOC noted that, during the coronavirus crisis, employers may be having difficulty obtaining doctor’s notes related to ADA accommodation requests and suggests that employers consider whether other documentation might suffice — arguably at least until a doctor’s note becomes available — such as a “health insurance record” or “a prescription.”

While not particularly robust or helpful on some of those difficult questions — and adding to the confusion on some questions — the webinar is nonetheless recommended for HR professionals to review as soon as possible.

Turn on your radios this Saturday 850 KOA, or stream, 4:05-4:30 PM

I’ll be on 850 KOA talking about the employment-law aspects of coronavirus with Mike Rice this Saturday from 4:05 PM to probably just before 4:30 PM MT. Tune in or stream.

CDLE issues revised Wage Protection Act Rules

On March 16, 2020, the Colorado Department of Labor and Employment (CDLE) issued amendments, effective that same day, to its prior Wage Protection Act Rules. The amendments added language that articulated the CDLE’s opinion that Colorado state law on the Joint Employer doctrine is and, in its opinion, has always been contrary to federal law.

COMPS Order 36 takes effect with some changes

Colorado Overtime and Minimum Pay Standards (COMPS) Order 36 took effect March 16, 2020 with some revisions and additional commentary by the Colorado Department of Labor and Employment.

First, in another Statement of Basis, Purpose, Specific Statutory Authority, and Findings for Adoption as Temporary or Emergency Rules, the CDLE issued a multi-page detailed explanation of its opinion that Colorado state wage-hour law on the Joint Employer doctrine is and, in its further opinion, has been contrary to and stricter than federal law. The CDLE announced there it will soon commence regulatory rulemaking on the Joint Employer doctrine to further solidify its reading of Colorado state wage-hour law.

The Statement also clarified what information needs to be included in paycheck statement eliminating prior proposed requirements that CDLE concedes “make() no sense.”

In an email to stakeholders distributing the revisions on March 16, 2020, the CDLE also advised of grace periods it will permit in light of the on-going coronavirus events, as follows:

(B)       Division Operations, and Compliance Grace Periods

            As of now, the Division remains fully operational. Based in part on potential delays to employer internal operations that have been called to the Division’s attention, the Division has adopted the following policies to grant what leniency it can, within the confines of existing law, for the coming weeks.

(1)   COMPS-required paperwork (posters, handbook inserts, acknowledgements, etc.) – compliance by 4/16/20 will be sufficient. To the extent that COMPS requires new paperwork from employers (new posters, handbook inserts, acknowledgement forms, etc.), the Division will deem compliance within the first month of COMPS – i.e., by April 16th – to be sufficient to qualify as compliant.

(2)   No Division-initiated investigations of new COMPS rules until 4/16/20. While the Division by statute must investigate any claims filed with us, the Division’s “Direct Investigations” team launches its own investigations, based on tips, leads, and known problem sectors. For the first month of COMPS being in effect (i.e., until April 16th), Direct Investigations will not launch new investigations based on violations of new COMPS rules.

(3)   Deeming violations of new COMPS provisions rules non-willful if remedied by 4/16/20. As noted above, the Division cannot by statute reject a claim filed shortly after COMPS takes effect. But to the extent that a violation committed within the first month of COMPS is solely of a new obligation under COMPS, the Division will deem the violation not “willful” if the employer remedies it within the first month of COMPS – i.e., by April 16th.

(4)   Starting tomorrow, March 17th, no new “notices of claim” will be sent to employers until April 1st. This is for all wage claims, not just those related to COMPS. Because some employers may be currently struggling to keep up with mail receipt, the Division will postpone mailing any new “notice of claim” – the mailing that tells an employer that a claim has been filed against it – because by statute, a notice of claim starts a 14-day clock for the employer to avoid penalties by paying any wages due. A longer extension would risk backlogging claims, but the Division aims for this period of just over two weeks to postpone employers’ receipt of mail that starts a statutory deadline.

Common questions re WARN versus coronavirus

Thinking about layoffs, furloughs or reductions of hours? Wondering about the WARN Act’s 60-day notice requirements? Bloomberg BNA published a handy article discussing some of the common questions about the WARN Act and coronavirus layoffs, furloughs and hour-reductions.

Source: The WARN Act: Top Coronavirus Questions Answered by Lawyers
— Read on www.bloomberglaw.com/exp/eyJjdHh0IjoiRExOVyIsImlkIjoiMDAwMDAxNzEtMTI4NS1kMDlhLWEzNzMtOWE5N2ZiMTYwMDAwIiwic2lnIjoiODFXQlVIQjIzU3pRUnB1TzJaTHlLL3BXU0NJPSIsInRpbWUiOiIxNTg1MTYyNTE0IiwidXVpZCI6IkVuY0FVQkNZUnhxcjlOQ3AreU4xVHc9PWcwRnZ1MHVUMUNNQnQzbnEzMXcxRkE9PSIsInYiOiIxIn0=

DOL issues preliminary Q&A re new coronavirus sick and FMLA leave rights

The DOL has issued a preliminary Q&A on the newly mandated coronavirus-related sick- and FMLA-leave rights. The Q&A answers some but not all of the questions previously raised to DOL. Highlights of the Q&A include the following:

  • The effective date of this new Act will now be April 1, 2020 (moved up from the initial tentative date of no later than April 2, 2020).
  • How employees should be counted for the purpose of determining if a company falls into the exemption for large companies (employing 500 or more), including how to count for related companies (including affiliates) and possible joint employer relationships.
  • How the new coronavirus sick leave hours should be counted for part-time workers.
  • How much sick leave should be paid for workers who would, otherwise, have worked overtime.
  • How employees who qualify for both the new coronavirus sick-leave and the new coronavirus paid FMLA-leave should be paid.
  • The DOL’s interpretation that paid leave provided prior to the new Act’s effective date (now, April 1, 2020) does not count towards these new requirements.
  • How to count the 30-day eligibility period for new hires re the new coronavirus FMLA-leave law.

The DOL advises that regulations will be forthcoming as may be additional guidance.

For brevity’s sake, the DOL’s analysis of these, and the other topics it addresses, are not restated here. Rather employers are encouraged to immediately review the DOL’s Q&A in full.

BREAKING NEWS: Gov. Polis orders in-person Colorado workforce reduction of 50% – Denver Business Journal

The Governor’s order is not yet available, but the Denver Business Journal is reporting that “The order does not apply to critical, 24-hour businesses like health care, manufacturing, agriculture and public services such as trash collection and mail delivery.” In his press conference Governor Polis stated verbally the order will take effect Tuesday March 24, 2020 and that “If you can ensure no employees are closer from (sic, than) six feet from one another during the work day, you can continue.” The order will expire April 10, 2020 11:59 PM.

Source: www.bizjournals.com/

UPDATE 3-23-2020: The order is now available, as is a FAQ from the Governor’s office.

The order’s operative language, including an explanation of the possible exemption for employers that can certify 6′-distancing is, as follows:

The executive order directs all employers to implement tele-work options to the greatest extent possible. If tele-work is not practical or possible, employers are encouraged to stagger work schedules to reduce the proximity of employees during work hours and to keep employees on payroll. This Executive Order does not apply to any employer that can certify that employees are no closer than six feet from one another during any part of their work hours.

The FAQ provides further explanation as to the industries that are exempt from the order. Exempt industries include defense contractors, oil and gas production companies, construction companies, and a variety of other industries such as groceries, pharmacies, healthcare, law enforcement, etc. The FAQ also suggests that “Planes and any other form of travel should only be used for essential purposes.

IRS begins clarifying how employers can recoup coronavirus-related leave expenditures

As previously posted, Congress enacted this week two new forms of coronavirus-related leave: sick leave and coronavirus-FMLA leave. Today, 3-20-2020, the IRS issued a memo beginning to explain how employers will be able to recoup expenses for the same and advising that further explanation will be forthcoming next week:

When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes.  The employers then are required to deposit these federal taxes, along with their share of Social Security and Medicare taxes, with the IRS and file quarterly payroll tax returns (Form 941 series) with the IRS.

Under guidance that will be released next week, eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS.

The payroll taxes that are available for retention include withheld federal income taxes, the employee share of Social Security and Medicare taxes, and the employer share of Social Security and Medicare taxes with respect to all employees.

If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week. 

Questions arise for regulatory clarification re coronavirus leave

As noted, Congress enacted two new forms of coronavirus leave this week: sick and FMLA-type leave. Bloomberg BNA reports that the DOL held a townhall today 3-20-2020 to invite suggestions for regulatory clarification and that questions raised in that townhall included:

  • How the exemption for small employers (less than 50 workers) will be interpreted? How will the 50-worker threshold be counted? Will there be any other requirements or will all employers with fewer than 50 workers be exempted?
  • How the exemption for large employers (more than 50 workers) be interpreted? How will the 500 workers be counted?
  • How will existing paid and sick leave interface with these two new forms of leave?
  • Will amounts paid to furloughed workers as a result of the coronavirus events count towards these two new forms of leave?
  • How will the new coronavirus-FMLA leave interact with regular FMLA leave for individuals who experience both coronavirus-related and un-related medical conditions?
  • How will the Treasury Department clarify the rules for how and when employers may assert the tax reimbursement credit to offset payments for these two new forms of leave?

As previously posted, the DOL is expected to issue its regulations — without prior notice or opportunity to comment — no later than the Act’s effective date, and as early as next week.

DOL relaxes normal I-9 processes for businesses affected by coronavirus-absences/teleworking

Normally an employer must review actual physical documents to complete a new hire’s I-9. SHRM has published this article explaining the DOL’s announcement that, for businesses where that is impossible because workers are absent and/or teleworking, that requirement will be relaxed to permit remote review of such documents, retention of same, then review physically when possible. The step-by-step instructions from the government for doing this “COVID-19” process can be found here.

Stay-at-home orders and Essential Industry employers

The Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security has issued a memo identifying 16 industries as “essential critical infrasture.”

  • Chemical
  • Communications
  • Commercial facilities
  • Critical manufacturing
  • Dams
  • Defense industrial base
  • Emergency services
  • Energy
  • Financial
  • Food & agriculture
  • Government facilities
  • Healthcare & public health
  • Information technology
  • Nuclear reactors, materials & waste
  • Water
  • Transportations systems

CISA’s memo details and explains each such industry for the purpose of suggesting a list of employers that should be exempted from state and local stay-at-home orders during the coronavirus.

Please note that the memo states its list is advisory in nature and not controlling.

Therefore, any actual stay-at-home orders will need to be analyzed carefully by an employer within one of the 16 essential industries, but the memo will hopefully provide a helpful document to assist state and local governments in clarifying any such orders.

 

Reminder: DOL Fact Sheet #70 re furloughs

Employers who are considering furloughs are reminded to consider DOL Fact Sheet #70 regarding federal wage-hour issues, in addition to related state wage-hour issues, such as under new COMPS Order 36. Of course, wage-hour issues are only some of the issues to be considered. Additional issues include possible WARN Act notices and benefits-related questions. Any employer considering possible furloughs, layoffs or other job reductions in response to the current coronavirus should immediately consult with their employment law counsel.

BREAKING NEWS: Congress passes mandatory sick leave and paid FMLA leave re coronavirus

Late March 18, 2020, Congress passed then the President signed into law the Families First Coronavirus Response Act, HR 6201.

  • The Act will take effect “not later than 15 days” after its enactment March 18, 2020, in other words, absent further development, April 2, 2020. (UPDATE: The effective date has been set for April 1, 2020.) It will sunset December 31, 2020.
  • The Act requires two types of leave, both include paid leave components.
    • Both types of leave apply to employers with fewer than 500 employees.
    • Employers of fewer than 50 employees will theoretically be able to seek exemption from the leave requirements if they would “jeopardize the viability of the business as a going concern.” The Act does not explain further. Rather it delegates to the DOL authority to develop regulations and processes to flesh out this possible exemption.
    • Special rules may also permit exemption of “certain health care providers and emergency responders,” again without explanation in the Act, as to be fleshed out by DOL regulations.
  • First, the Act provides for up to 80 hours of sick leave, in the event (1) the employee is subjected to a federal, state or local quarantine/isolation order re coronavirus, (2) the employee has been advised by a healthcare provider to self-quarantine re coronavirus, (3) the employee’s own coronavirus experience, or the employee is (4) caring for an individual subject to a quarantine/isolation order, (5) caring for a child whose school or daycare is closed, or (6) similar conditions as specified by government officials.
    • Sick leave for reasons 1-3 (generally the employee’s own condition) is capped at $511 per day.
    • Sick leave for reasons 4-6 is capped at $200 per day.
    • This sick leave will be available to all employees. Unlike the FMLA leave below, it does not appear to require a 30-day period of employment for eligibility.
  • Second, the Act amends the FMLA to provide for 12 weeks of leave when an employee is unable to work (or telework) because the employee must care for a child under the age of 18 whose daycare, elementary or high school has been closed due to coronavirus.
    • The first 10 days are unpaid. Employees can opt (but not be required) to substitute other paid leave.
    • The remaining 10 weeks of FMLA is paid at 2/3rds of the employee’s regular pay up to $200 per day and $10,000 total aggregate.
    • This coronavirus-specific FMLA leave will be available to employees who have been employed for at least 30 days.
    • The Act modifies the FMLA’s job-restoration requirements (in ways arguably not yet fully clear and hopefully to be determined by DOL regulation), recognizing that following the coronavirus crisis many positions will no longer exist.
    • Please note the coverage (fewer than 500 employees) and eligibility (30-days employment) requirements. This will mean that many (many) more employers and employees will be covered by coronavirus-FMLA than would otherwise be covered by the FMLA in general.
  • The Act (again without sufficient detail to be fully clear) provides for 100% tax credits to permit employers to offset the costs of providing such leave (by offsets against Social Security taxes).
  • The DOL is required to publish a poster within 7 days, summarizing the Act.

UPDATE: The DOL has begun rulemaking to develop regulations, which it hopes to deliver no later than the Act’s effective date, if not sooner. The DOL will bypass the normal process of publishing proposed rules first by invoking governmental-agency emergency authority to publish immediately effective final rules and invite comment on the same thereafter for possible later revisions.

 

EEOC issues guidance re Pandemic Preparedness in the Workplace

The EEOC issued a guidance entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. While the guidance does not answer some of the more difficult questions posed in the current coronavirus crisis, it does provide guidance on at least some questions employers are facing and are likely to face, including the following:

  • Before an influenza pandemic occurs, may an ADA-covered employer ask an employee to disclose if he or she has a compromised immune system or chronic health condition that the CDC says could make him or her more susceptible to complications of influenza?

No. …

  • Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?

Yes. …

Below is a sample ADA-compliant survey that can be given to employees to anticipate absenteeism.

ADA-COMPLIANT PRE-PANDEMIC EMPLOYEE SURVEY

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

    • If schools or day-care centers were closed, you would need to care for a child;
    • If other services were unavailable, you would need to care for other dependents;
    • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
    • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

  • May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?

Yes. …

  • During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. …

  • When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?

No. …

  • During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?

No. …

Employers should take the time to review the EEOC’s guidance and familiarize themselves with the nuances of the EEOC’s carefully worded answers. In the foregoing summaries, for brevity’s sake, only the EEOC’s conclusions (like “No”) are cited, but the EEOC’s answers, as indicated by the ellipses (“…”) proceed to qualify its answers.

Unemployment Insurance Worker FAQs | Colorado Department of Labor and Employment

Want a handy reference of Frequently Asked Questions (FAQs) related to Colorado’s Unemployment Insurance Program and availability of unemployment benefits as we go through this coronavirus experience? Check the state’s FAQ here: www.colorado.gov/pacific/cdle/unemployment-insurance-worker-faqs

BREAKING NEWS: Colorado Department of Labor and Employment issues paid-sick leave rule regarding coronavirus testing

According to a verbally issued executive order by Colorado Governor Polis, the Colorado Department of Labor and Employment has issued a rule (the “Colorado HELP” rule, aka the Colorado Health Emergency Leave with Pay rule) requiring certain employers to provide up to 4 days of paid leave for employees awaiting a coronavirus test result. Rule 3 reads, as follows:

Rule 3. Paid Sick Leave for Certain Employees.
3.1 Any employer engaged in the field of leisure and hospitality, food services, child care, education at all levels (including related services, including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility shall provide up to four days of paid sick leave for an employee (A) with flu-like symptoms and (B) who is being tested for COVID-19. The paid sick leave ends if an employee receives a negative COVID-19 test result.

3.2 These rules do not require an employer to offer additional days of paid sick leave if it already offers all employees an amount of paid leave sufficient to comply with Rules 3.1. However, an employee who already exhausted his or her paid leave allotted by the employer, but then has flulike symptoms and is being tested for COVID-19, is entitled to the additional paid sick days provided by Rule 3.1.
3.3 During paid sick leave covered by these rules, pay shall be provided (A) at the employee’s regular rate of pay (the COMPS Order Rule 1.8 definition of “regular rate of pay” is incorporated into this rule), including all forms of wages and compensation (but increased to the applicable minimum wage for an employee paid below the minimum wage due to a tip credit), and (B) for the employer’s regularly worked hours. To the extent that the employee’s rate of pay or hours worked had varied before the absence for illness, pay shall be in the amount of the employee’s average daily pay for the preceding month.
3.4 To the extent feasible, employees and employers should comply with the procedures of the federal Family Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules, except that (A) no employer may terminate an employee for inability to provide documentation during an illness covered by these rules, and (B) FMLA provisions do not narrow the rights and responsibilities provided by these rules.

Governor Polis has stated an intent to continue to explore ways the state can respond, including expanding availability of unemployment benefits and possibly freeing up state-government money to assist with other wage losses.

The CDLE’s page on its Colorado HELP rule, including the CDLE’s FAQ list, is available here, which includes the following Q&As:

What does the rule do?

  • Temporarily requires employers in certain industries (listed below) to provide a small amount of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19.

How much paid sick leave must be provided?

  • The employer must provide up to four days of paid sick leave to employees with flu-like symptoms who are being tested for coronavirus COVID-19. If the employee receives a negative test result, the paid leave ends.

Is this a requirement on top of sick leave an employer already provides?

  • No. If an employer already provides the paid leave necessary to meet these rules’ requirements, then the employer does not need to provide additional leave. However, if an employer does not already provide enough paid sick leave to comply with these rules, it will have to provide additional paid sick leave to meet the rules’ requirements. And if an employee already exhausted any paid leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, he or she is entitled to the additional paid sick days these rules provide.

Which employees and employers are covered by these sick leave rules?

  • Employers and employees in one of the following industries or jobs:
    • Leisure and Hospitality
    • Food Services
    • Child care
    • Education, including transportation, food service, and related work at educational establishments
    • Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
    • Nursing homes
    • Community living facilities
  • Workers are covered regardless of pay rate or method (hourly, weekly, piece rate, etc.); the daily pay during leave is either their established daily rate or, if their pay fluctuates, their average daily pay for the past month.

How long will the rule stay in effect?

  • The rules take effect March 11, 2020, for 30 days, or longer if the state of emergency declared by the Governor continues.

Why are these rules being created?

  • With the continuing spread of coronavirus COVID-19, coming to work while ill poses a serious threat to the health and safety of co-workers, others at the business, and the public generally. These rules will temporarily entitle certain employees to paid sick days in order to limit the spread of this disease.

Will additional funds be available for workers who need to be out of work longer than four days?

  • The current emergency rules only speak to paid leave for the four-day period required for testing, because that is what CDLE could do immediately. The Governor has asked CDLE to identify other potential supports and wage replacement, such as access to unemployment insurance. These options are under review to determine rulemaking authority, eligibility, etc.

 

Follow-up on new COMPS Order information from CDLE – 4 of 4

As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. AS explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.

As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. AS explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.

Employers curious how the CDLE will interpret the new order’s tip credit rules, including its continued use of the 80/20 rule that is being eliminated at the federal level but now being maintained at the Colorado state level, should review the CDLE’s Interpretive Notice & Formal Opinion (INFO) #3, which details the CDLE’s anticipated process for claims handling.

As a reminder, this blog recently noted an article by Bloomberg BNA surveying last year’s court decisions, which reflect an unwillingness by lower courts to accept even the federal government’s efforts to eliminate the 80/20 rule.

Follow-up on new COMPS Order information from CDLE – 3 of 4

As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. AS explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.

Employers curious how the CDLE will enforce wage claims should review the CDLE’s Interpretive Notice & Formal Opinion (INFO) #2, which details the CDLE’s anticipated process for claims handling.

Follow-up on new COMPS Order information from CDLE – 2 of 4

As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. As explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.

One item included in that email was a link to the CDLE’s own summary of COMPS Order 36. At “only” four pages, this summary is an easy to read introduction to this new law, which all employers should take time to review before the COMPS Order’s effective date of March 16, 2020. As employers do, they should also skim the CDLE’s poster, which is its own summary.

Follow-up on new COMPS Order information from CDLE – 1 of 4

As previously discussed on this blog, the Colorado Division of Labor and Employment recently finalized its new wage order, titled COMPS Order 36. COMPS Order 36 has proven to be an overhaul of existing Colorado law, reaching many employers previously exempt from prior wage orders. The COMPS order has left many unanswered questions. In response this blog noted that the CDLE has just issued some additional information. As explained in that post, employers should review the CDLE’s summary that it emailed out regarding its new information, which email is copy-pasted into that blog post.

One item included in that email is a link to the CDLE’s own summary of COMPS Order 36. At “only” four pages, this summary is an easy to read introduction to this new law, which all employers should take time to review before to note is that the CDLE has now provided its COMPS Order 36 poster, which is to be used in complying with Rule 7.4 of the new order. That Rule 7.4 provides, as follows:

7.4 Posting and Distribution Requirements.

7.4.1 Posting. Every employer subject to the COMPS Order must display a COMPS Order poster published by the Division in an area frequented by employees where it may be easily read during the work day. If the work site or other conditions make a physical posting impractical (including private residences employing only one worker, and certain entirely outdoor worksites lacking an indoor area), the employer shall provide a copy of the COMPS Order or poster to each employee within his or her first month of employment, and shall make it available to employees upon request. An employer that does not comply with the above requirements of this paragraph shall be ineligible for any employee-specific
credits, deductions, or exemptions in the COMPS Order, but shall remain eligible for employer- or industry-wide exemptions, such as exempting an entire employer or industry from any overtime or meal/rest period requirements in Rules 4-5.
7.4.2 Distribution. Every employer publishing or distributing to employees any handbook, manual, or written or posted policies shall include a copy of the COMPS Order, or a COMPS Order poster published by the Division, with any such handbook, manual, or policies. Every employer that requires employees to sign any handbook, manual, or policy shall, at the same time or promptly thereafter, include a copy of the COMPS Order, or a COMPS Order poster published by the Division, and have the employee sign an acknowledgement of being provided the COMPS Order or the COMPS Order poster.

7.4.3 Translation. Employers with any employees with limited English language ability shall:
(A) use a Spanish-language version of the COMPS Order and poster published by the Division, if the employee(s) in question speak Spanish; or
(B) contact the Division to request that the Division, if possible, provide a version of the COMPS Order and poster in another language that any employee(s) need.

Employers are reminded that, while the much-discussed overtime provisions of COMPS Order 36, Rule 7.4 suggests it will take effect on the COMPS Order’s own effective date of March 16, 2020. Employers should consider therefore complying by posting, distributing and obtaining signed acknowledgement pages for the COMPS Order in its entirety or just the poster, and to do so in English or such other language, including Spanish, as employees “with limited English language ability” may speak.

 

BREAKING NEWS: COMPS Order 36

The Colorado Division of Labor and Employment has just advised as follows:

The Division has posted the Colorado Overtime & Minimum Pay Standards (COMPS) Order #36  Poster on our COMPS Order #36 – Informational Page. This is the “Poster” to use to comply with the “Posting and Distribution Requirements” COMPS Rule 7.4. As a reminder, Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) #36 is effective March 16, 2020.

The Division has also published guidance in the form of three new INFOs (Interpretive Notice & Formal Opinions) available on the Division’s Laws, Regulations, and Guidance webpage. The three INFOs published today are:

INFO # 1: Colorado Overtime & Minimum Pay Standards Order (COMPS Order) #36

INFO # 2: DLSS Wage Claim Investigation Process

INFO # 3 Tips (Gratuities) and Tipped Employees Under Colorado Wage Law

The Division’s INFOs are not binding law, but they are the Division’s officially approved opinions and notices to employers, employees, and other stakeholders as to how the Division applies and interprets various statutes and rules. The Division will continue to post and update INFOs on various topics; to suggest a topic, please email cdle_labor_standards@state.co.us.

Please continue to check this blog, www.l2slegal.com, where additional information regarding the CDLE’s announcement will be posted soon.

Restaurants and other employers with tipped employees, beware relying on DOL opinion letter

As previously posted, the DOL issued an opinion letter in 2019, purporting to jettison the Obama Administration’s 80-20 rule and expanding the ability to claim tip credits for tipped employees, specifically, during time when they do not earn tips (example, while wait staff vacuum and clean). Bloomberg BNA reports that opinion letter has met with rejection in the courts:

Restaurant chains have lost at least seven decisions over the last year in which federal district court judges refused to give deference to a 2018 Labor Department opinion letter advising restaurants to pay a lower minimum wage to tipped workers for tasks that don’t yield gratuities.

In most of those decisions, judges held that DOL wasn’t justified in turning its back on a standard that’s been in place for more than three decades.

Also as previously posted, the DOL issued a propose regulation to the same effect, which if finalized would become law, to which courts should defer in lawsuits.

Employers are reminded that Colorado law requires additional notice-posting to employees if a tip credit is to be claimed.

COMPS Order 36, SOME of what you need to know

As previously posted here, the Colorado Division of Labor and Employment has issued its COMPS Order no. 36. Here’s some of what you need to know:

  • It probably applies to your company. As previously explained, Colorado Wage Orders have historically been limited to certain industries, now their successor, this “COMPS Order” is generally applicable to all employers with only some exceptions, most notably some aspects of the agricultural industry.
  • It’s long, but you should take the time to read it and review it with experienced employment counsel. If you read the draft, the CDLE published a redline with changes from the draft to the final version.
  • It will be effective March 16, 2020.
  • Ensure your overtime-exempt personnel still qualify for exemption under Colorado law, especially that each is earning more than the required minimum salaries, effective the following dates:

July 1, 2020 $684.00 per week ($35,568 per year)
January 1, 2021 $778.85 per week ($40,500 per year)
January 1, 2022 $865.38 per week ($45,000 per year)
January 1, 2023 $961.54 per week ($50,000 per year)
January 1, 2024 $1,057.69 per week ($55,000 per year)

Effective January 1, 2025, the CDLE advises that salary minimums will increase commensurate with Colorado’s minimum wage, as adjusted by the CPI.

  • Employers must now “authorize and permit” non-exempt workers to take at least one 10-minute paid break as close to the middle of each 4-hour shift. What does “authorize and permit” mean? No one knows, and worse, the phrase is not defined elsewhere in the law. Some options employers might consider, in an abundance of caution, include requiring employees take such breaks, disciplining employees who fail to do so and requiring employees to mark down their break times on timecards even though such time must be paid.
    • Note: The COMPS order has different break requirements for employers that have contrary union-negotiated collective bargaining agreements and some Medicaid-funded service providers.
  • Employers must now pay for certain pre- and post-shift activities, which federal law does not consider compensable time, to include some aspects of time related to donning and doffing (changing in and out of certain clothes and gear), briefings, security screenings, safety and travel-related time, and clocking-in and -out.
  • Companies that use independent contractors in their workforce will want to review this blog’s previous post, as COMPS Order 36, as explained by its Statement of Basis, Purpose, Specific Statutory Authority, and Findings in support of COMPS Order #36, seems to have dramatically narrowed the ability of companies to do so, apparently in an attempt to convert such workers, by administrative fiat, into statutory “employees” of joint employers.
  • COMPS Order 36 has revised the definitions for which salaried personnel may be exempt. Employers should review their current exemptions against this new law. Notably, COMPS Order 36 actually expands the availability of exemptions in some instances for computer professionals and some seasonal camp and outdoor education programs.
  • Post the CDLE’s new COMPS Order 36 poster. Indeed the new poster is so new, that the CDLE hasn’t issued one yet. Recently on a call to CDLE the CDLE advised that it does not know when or if it will issue the poster it refers to itself in its own new order.
    • Not only must it be posted, but the poster or the entire COMPS Order itself must be included in handbooks and signed for.
    • And that non-existent poster and expansive COMPS order must be so distributed not only in English but in Spanish or such other language as workers may speak. Although the COMPS Order suggest the CDLE will distribute the order in such other languages, there are none on CDLE’s website.
  • As noted, review this expansive order in its entirety. Other provisions for example address meal, lodging, top credit, uniform deposits.

Great time speaking at Mile High SHRM conference

Thank you to MileHigh SHRM for inviting me to present on 2019’s top legal developments for HR professionals at the 2020 HR Conference. It was a great group of engaged and informed attendees!

Berger at Mile High SHRM Jan 2020

The new I-9 form is here!

Ok, maybe it’s not that exciting, but still the DOL has released its new I-9 form. It will be mandatory May 1, 2020. It can be found here, with its various other forms and versions. SHRM’s article, if readers are interested, re same, can be found here. Thank you as always to SHRM for great information; if you’re not a SHRM member, consider joining!

Colorado finalizes new wage order, COMPS Order no. 36, 7 CCR 1103-1 (2020)

As noted in a previous post, Colorado proposed a new wage order in 2019. On January 22, 2020, the Colorado Division of Labor and Employment finalized its new order — now called COMPS order #36 — effective March 16, 2020.

As noted in the previous post, COMPS order #36 is  radical overhaul of Colorado’s prior wage orders. Among other things the changes include:

  • A title change: Reflecting the fact that this new order addresses far more than simple wages, its title will change from the “Colorado Wage Order” (WO) to the “Colorado Overtime and Minimum Pay Standards Order” (COMPS).
  • COMPS 36 will now reach almost all private employers in Colorado. Previous WOs had applied only to the following four industries: retail and service, commercial support service, food and beverage, and health and medical. COMPS will apply to all employers as a general rule, unless the employer falls within one of the newly defined exemptions set forth in prosed Rule 2 of COMPS. Therefore employers who previously considered themselves exempt from the WOs should now review COMPS to determine if it will become covered.
  • Minimum guaranteed salary: If covered COMPS will increase the minimum guaranteed salary to $42,500, effective 7/1/20, well above that in federal law. COMPS minimum will rise steeply thereafter, each year, to $57,500 effective 1/1/26 and be adjusted thereafter per the CPI.
  • Changes to particular job-specific exemptions have been proposed.
  • Changes to the timing of required rest periods and a requirement that employees who are not allowed their 10-minute rest period receive pay not only for the 10-minute rest period but an extra 10 minutes pay.
  • Changes to the ability to take credits and the ability to charge for uniforms.
  • Changes to the fluctuating workweek method of calculating overtime.
  • Expansion of anti-retaliation protections.
  • Expansion of employer obligations as to “transparency,” “language inclusiveness” and posters.

In addition, the as-finalized COMPS order #36 dramatically expanded the definition of an “employee” and “employer” in Colorado — in apparent reflection of similar narrowing in California — by mandating that a worker will be deemed an “employee” not an independent contractor who otherwise meets all requirements to be an independent contractor but who performs work that is itself part of the company’s own regular business. The CDLE explained this “entirely new factor to the ’employee’ analysis'” in its Statement of Basis, Purpose, Specific Statutory Authority, and Findings in support of COMPS Order #36, as follows:

For example: if a retail clothing store hires an outside plumber on a one-time or sporadic basis to make repairs as needed, the plumber’s services are not part of the store’s primary work — selling clothes. On the other hand, when a clothing manufacturer hires work-at-home seamstresses to make dresses, from cloth and patterns supplied by the manufacturer, that the manufacturer will sell, or when a bakery hires cake decorators to work on a regular basis on custom-designed cakes, the workers are performing the “primary work” of the hiring business.

Other changes to the prior draft order include a rule that workers who are putting on and taking off work clothes and gear (so-called “donning and doffing” cases) are engaged in work and accordingly must be paid for the such time if it takes “over one minute” and if it is not clothes/gear that is “worn outside work as well. Additionally COMPS order #36 will effectively require that, when a 10-minute break is otherwise required, nearly all such workers will need to be made to take their 10-minute breaks every 4 hours. Only workers who work under collectively bargained agreements that say otherwise will be allowed to take breaks outside a 4-hour period, as can some workers who work for certain Medicaid-funded entities.

Perhaps most importantly the final order also implemented a slower increase in the required guaranteed minimum salary for overtime exempt person in 2020 and 2021, then a steeper climb in 2023 to reach the previously planned 2024 minimum salary of $55,000.

Source: final COMPS Order #36 as redlined by the CDLE against its prior draft.

EEOC Harassment Charges Reflect #MeToo’s Relevance

Interesting article from SHRM on post- #MeToo statistics at EEOC for sexual harassment charges.

On the one hand, there still has not been a flood of sexual harassment charges. In fact, their number remains lower than pre- #MeToo 2010-13 numbers but are slowly climbing back from their post- #MeToo 2014-17 dips.

The number of sexual-harassment charges filed with the EEOC dipped slightly in fiscal year 2019 from 2018 levels but remained much higher than in the immediately preceding years:

  • 2014—6,862
  • 2015—6,822
  • 2016—6,758
  • 2017—6,696
  • 2018—7,609
  • 2019 —7,514

The number of sexual harassment charges were at a high level before that, though they dropped from the beginning of the 2010s:

  • 2010—7,944
  • 2011—7,809
  • 2012—7,571
  • 2013—7,256

One has to wonder if these numbers aren’t the product of the the country becoming more educated on Title VII’s sexual harassment legal requirements; in other words, understanding what the law does and does not prohibit, fewer unsupported claims are being filed. Indeed, the EEOC’s recent statistics do suggest that the charges, which are being filed post- #MeToo, may be, by and large, the stronger claims, at least in the sense that they are producing higher dollar-amount settlements.

The monetary benefits from the agency’s sexual-harassment settlements have steadily risen over the past four years:

  • 2016—$40.7 million
  • 2017—$46.3 million
  • 2018—$56.6 million
  • 2019—$68.2 million

Source: “EEOC Harassment Charges Reflect #MeToo’s Relevance,” A. Smith, J.D. (1/24/2020), available here, www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/EEOC-harassment-charges-MeToo.aspx

DOL releases final joint employer rule

The DOL has issued a final rule regarding the Joint Employer doctrine.

Analysis of a joint employer issues under the Fair Labor Standards Act (FLSA), the DOL rule says, should start — and will generally end — with the following non-exclusive four factors (quoting the summary in the DOL’s Fact Sheet regarding its new rule):

  • hires or fires the employee;

  • supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;

  • determines the employee’s rate and method of payment; and

  • maintains the employee’s employment records.

The rule emphasizes that no one factor will be controlling and specifically states that the fourth (maintaining employment records) alone will never be sufficient to establish joint employer status. This is a particularly important principle for companies — like franchisors for example — that mandate the use of a software platform hosted by the principle company to encompass a variety of operational needs that include scheduling and HRIS.

The rule eliminates the prior “economic dependence” test that has proven so controversial. Likewise the rule specifies that the worker’s ability to recognize an independent profit or loss is not to be considered. The rule states that, under its application, franchisors, among others, will generally no longer be considered joint employers.  Indeed the rule states that the following are not to be considered indicators of joint employer status (again quoting the DOL’s own summary at its Fact Sheet, above):

  • operating as a franchisor or entering into a brand and supply agreement, or using a similar business model;

  • the potential joint employer’s contractual agreements with the employer requiring the employer to comply with its legal obligations or to meet certain standards to protect the health or safety of its employees or the public;

  • the potential joint employer’s contractual agreements with the employer requiring quality control standards to ensure the consistent quality of the work product, brand, or business reputation; and

  • the potential joint employer’s practice of providing the employer with a sample employee handbook, or other forms, allowing the employer to operate a business on its premises (including “store within a store” arrangements), offering an association health plan or association retirement plan to the employer or participating in such a plan with the employer, jointly participating in an apprenticeship program with the employer, or any other similar business practice.

Additional information, including a FAQ, is available on the DOL’s web page regarding its new rule.

Source: DOL final rule, “Joint Employer Status Under the Fair Labor Standards Act,” 85 Fed.Reg. 164 et seq. (1/16/20).

NLRB returns to its historical standard for deferring to arbitration both before and after the arbitral award

The NLRB has reversed its 2014 Babcock & Wilcox standard for deciding when the Board will defer to arbitration, both before (“pre-arbitral” deferrals) and after (“post-“) the arbitration itself has occurred. Now the burden is on the party resisting deferral (typically a union) not the party urging deferral (typically an employer), and the question is only whether (simplifying a 4-part test) the arbitration has/will provide a fair and full opportunity to litigate the same facts, not whether the CBA expressly provides for arbitration of ULP’s (charges alleging violations of the NLRA, technically called “unfair labor practices”) or whether the parties actually have litigated (or will) litigate the ULP.

Source:  UPS, Inc., 369 NLRB No. 1 (12/23/19).

Federal court freezes California’s new anti-arbitration law AB 51

A federal court in California has frozen California’s 2019 anti-arbitration law, numbered AB 51 (“Assembly Bill”). AB 51, which would have taken effect January 1, 2020, would have barred arbitration agreements entered into — even through an “opt out” clause — as a condition of employment, at least as to California state law claims. The court’s ruling is a welcome clarification since AB 51 stood in obvious contradition to and in apparent violation of the United States Supreme Court’s many rulings under the Federal Arbitration Act. AB 51’s effective date is now frozen pending further litigation.

Source: Order Granting Temporary Restraining Order And Setting Expedited Hearing on Preliminary Injunction, Case No.  2:19-cv-02456-KJM-DB  (12/30/19).

NLRB returns to permitting employers to cease dues check-off collections during negotiations

Reversing its Obama-era decision, the Board has returned to its longstanding precedent of permitting employers to stop withholding dues, even as may have been required by a dues check-off clause in a collective bargaining agreement, once that agreement expires and the parties enter renewal negotiations.

In sum, we find that a dues-checkoff provision properly belongs to the limited category of mandatory bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) of the Act only for the duration of the contractual obligation created by the parties. There is no independent statutory obligation to check off and remit dues after expiration of a collective-bargaining agreement containing a checkoff provision, just as no such statutory obligation exists before parties enter into such an agreement. This holding and rationale apply even in the absence of a union-security provision in the same contract. Because we find that it would not be unjust to follow our normal approach when overruling precedent, we will apply our holding retroactively in this case and in other pending cases. We therefore find that the Respondent had no obligation under the Act to continue dues checkoff after the contract expired.

Source: Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019).

NLRB reverses course on its expedited election rules

Effective April 16, 2020, the Board will jettison its 2014 expedited election rules. The expedited election rules were highly controversial and nicknamed, depending on the speaker’s perspective, either “quickie” or “ambush” election rules. The highly accelerated election period was intended to limit (or, depending on the speaker’s perspective, curtail) the ability of employer’s to speak and otherwise lawfully campaign prior to the election.

In its fact sheet on the new election rules, the Board summarized “the most significant changes in the new rule(, as follows):  

  • Pre-Election Hearings:  Pre-election hearings will generally be scheduled 14 business days from notice of the hearing, and regional directors will have greater discretion to postpone hearings. In most cases, pre-election hearings currently must be scheduled 8 calendar days from the notice of hearing.  

  • Notice of Petition for Election:  Employers must post and distribute the Notice of Petition for Election within 5 business days after service of the notice of hearing. Existing rules require posting and distribution within 2 business days. Non-Petitioning Party’s Statement of Position:  Non-petitioning parties (most commonly employers) must file a Statement of Position within 8 business days after service of the notice of hearing, and regional directors will have greater discretion to grant extensions. Under the existing rules, non-petitioning parties’ Statement of Position usually must be filed 1 day before the opening of the pre-election hearing (typically 7 calendar days after service of the notice of hearing).  

  • Petitioning Party’s Statement of Position:  Petitioners (typically unions) must file a Statement of Position responding to the issues raised in any non-petitioning party’s Statement of Position. This responsive Statement of Position is due at noon 3 business days before the hearing. In most cases, the current rules do not provide for pre-hearing statements of position from petitioning parties.  

  • Unit Scope and Voter Eligibility Determinations:  All disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties may, however, agree to permit disputed employees to vote subject to challenge. Under the current rules, disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.

  • Post-Hearing Briefs:  Parties are permitted once again to file post-hearing briefs with the regional director following pre-election hearings. Post-hearing briefs will be permitted for postelection hearings as well. Such briefs are due within 5 business days, and hearing officers may grant an extension of up to 10 business days for good cause. Under existing rules, post-hearing briefs are permitted only upon special permission of the regional director.  

  • Notice of Election:  The regional director’s discretion to issue a Notice of Election subsequent to issuing a direction of election is emphasized. The current rules provide that regional directors “ordinarily will” specify election details in the direction of election.  

  • Scheduling of Election:  Regional directors must continue to schedule the election for the earliest date practicable, but—absent agreement by the parties—normally will not schedule an election before the 20th business day after the date of the direction of election.  

  • Voter Lists:  Employers must furnish the required voter list within 5 business days following the issuance of a direction of election. Under the current rules, employers have 2 business days to provide voter lists. 

  • Election Observers:  Parties are required to select election observers who are current members of the voting unit whenever possible. When no such individual is available, a current nonsupervisory employee should be selected. The current rules provide for election observers but place no restrictions on who may be selected to serve as an observer. 

  • Requests for Review: 

    • Filed within 10 Business Days after Direction of Election:  If the Board either does not rule on a request for review or grants the request before the election, ballots will be impounded and remain unopened pending a decision by the Board. 
    • Filed more than 10 Business Days after Direction of Election:  Parties may still file a request for review of a direction of election more than 10 business days after the direction, but the pendency of such a request for review will not require impoundment of the ballots or postponement of the vote results.
    • Post-Election:  Consistent with the current rules, parties may wait to file a request for review of a direction of election until after the election has been conducted and the ballots counted. 
  • Oppositions to Requests for Review:  Oppositions are explicitly permitted in response to all types of requests for review, and the practice of permitting replies to oppositions and briefs on review only upon special leave of the Board has been codified.

  • Certification of Election:  The regional director will no longer issue certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed. Under the current rules, regional directors are required to issue certifications following elections despite the pendency or possibility of a request for review.    

  • Business Day Calculation:  All time periods applicable to the election rule are calculated based on business days as opposed to calendar days. Under the existing rules, there is a lack of consistency on the calculation of days. The new rules also define how business days are calculated, including clarification that only federal holidays are implicated in time period calculations.”

Source: NLRB Fact Sheet: Revisions to the Board’s Representation Case Procedures. See also the final rule, 84 Fed.Reg. 69524 (12/18/19).

DOL issues regulations clarifying excludable items from the regular rate of pay

Workers who are not exempt from overtime, in other word, workers who must be paid overtime, under federal law (the Fair Labor Standards Act) must be paid time and one-half of their “regular rate of pay.” The phrase “regular rate of pay” is not what it intuitively sounds like; it is not simply what the worker regularly gets paid. Instead, there are strict rules for what must be included in a regular rate of pay and for what may be excluded. The DOL issued final regulations, to be effective January 15, 2020, “to confirm that employers may exclude the following from an employee’s regular rate of pay:

  • the cost of providing certain parking benefits, wellness programs, onsite specialist treatment, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits (whether paid to an employee, an education provider, or a student-loan program), and adoption assistance;

  • payments for unused paid leave, including paid sick leave or paid time off;

  • payments of certain penalties required under state and local scheduling laws;

  • reimbursed expenses including cellphone plans, credentialing exam fees, organization membership dues, and travel, even if not incurred “solely” for the employer’s benefit; and clarifies that reimbursements that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System or the optional IRS substantiation amounts for travel expenses are per se “reasonable payments”;

  • certain sign-on bonuses and certain longevity bonuses;

  • the cost of office coffee and snacks to employees as gifts;

  • discretionary bonuses, by clarifying that the label given a bonus does not determine whether it is discretionary and providing additional examples and;

  • contributions to benefit plans for accident, unemployment, legal services, or other events that could cause future financial hardship or expense.”

(Quoting the DOL’s web page for these final rules, available here, https://www.dol.gov/agencies/whd/overtime/2019-regular-rate.)

The final regulations alsoeliminate() the restriction in (FLSA’s) §§ 778.221 and 778.222 that ‘call-back’ pay and other payments similar to call-back pay must be ‘infrequent and sporadic’ to be excludable from an employee’s regular rate, while maintaining that such payments must not be prearranged.” (Quoting that same web page.)

As the DOL notes in its summary above, some sign-on bonuses are excludable, but not all are. The DOL explains in its final rule and the prefatory comments for that rule that it depends on whether the sign-on bonus requires the recipient to do work. Thus a sign-on bonus that is paid before and irrespective of whether work is actually done is excludable, but if that bonus has a clawback provision (if the worker doesn’t end up working, or doesn’t end up working enough hours/days), then it is payment for work provided and becomes not excludable.

In brief, sign-on bonuses with no clawback provision are excludable from the regular rate; sign-on bonuses with a clawback provision pursuant to collective bargaining agreement (CBA), or city ordinance or policy are included in the regular rate; and sign-on bonuses with a clawback provision not pursuant to a CBA, city ordinance or policy, or other similar document that complies with § 778.212, are excludable from the regular rate.

Likewise, the DOL explains “bonuses contingent upon the employee’s continuing in employment until the time the payment is to be made and the like are” not excludable.

The DOL also spent quite a bit of time in the final rule discussing what is a “discretionary bonus” that may be excluded from the regular rate of pay.

Examples of bonuses that may be discretionary include bonuses to employees who made unique or extraordinary efforts which are not awarded according to pre-established criteria, severance bonuses, referral bonuses for employees not primarily engaged in recruiting activities, bonuses for overcoming challenging or stressful situations, employee-of-the-month bonuses, and other similar compensation. Such bonuses are usually not promised in advance and the fact and amount of payment is in the sole discretion of the employer until at or near the end of the period to which the bonus corresponds.

Employers should consider pulling a list of the payroll codes they use for non-exempt workers, marking which they currently considered excluded versus included in the regular rate of pay calculations, then mapping that against the new regulations. In conducting that mapping, and in order to preserve attorney-client privilege and attorney work product protections, they may wish to involve experienced employment law counsel in their internal audit.

Source: “Regular Rate Under the Fair Labor Standards Act,84 Fed.Reg. 68736 (12/16/19).

In another reversal, NLRB holds employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations

The NLRB has ruled that employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations. A typical “gag order” would be an instruction by the company to employees (and other witnesses) not to discuss matters relevant to an on-going investigation.

The decision triggered a heated dissent from one Board member who argued it will allow employers, in #MeToo type matters, to further keep secret wrongful matters, such as the details of sexual harassment.

In issuing its decision the Board held that such “gag orders” will, still, draw individualized case-by-case scrutiny from the Board when they are “not
limited on their face to open investigations
.”

In reaching its decision, the Board applied its new more permissive approach to analyzing handbooks and policies.

Source: Apogee Retail, 368 NLRB No. 144 (12/17/19).

NLRB reverses course and holds employers can control emails

In a reversal of its Purple Communications decision, the NLRB held that employers can maintain sole control over their email and computer systems. Employers need not allow workers much less third parties like unions access to their email systems to, for example, further union organizing, collective bargaining, grievance administration or other non-work purposes.

(E)mployees have no statutory right to use employer equipment, including IT resources,

Employers are reminded this decision leaves in tact the Board’s longstanding exception for “those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.” For example, where employees are geographically dispersed and have no means, other than corporate email, to communicate. With regard to that exception, the Board elaborated only to say the following:

Because, in the typical workplace, employees do have adequate avenues of communication that do not infringe on employer property rights in employer-provided equipment, we expect such cases to be rare. We shall not here attempt to define the scope of this exception but shall leave it to be fleshed out on a case-by-case basis.

Source:  Caesar’s Entertainment, Inc., 368 NLRB No. 143 (12/17/19).

New Colorado wage order will overhaul many overtime and minimum wage requirements

The Colorado Department of Labor and Employment has proposed its new wage order. This order, #36, will replace the current wage order, #35. The new wage order will overhaul Colorado law regarding overtime and minimum wage. Its many changes from current wage order #35 include:

  • A title change: Reflecting the fact that this new order addresses far more than simple wages, its title will change from the “Colorado Wage Order” (WO) to the “Colorado Overtime and Minimum Pay Standards Order” (COMPS).
  • COMPS 36 will now reach almost all private employers in Colorado. Previous WOs had applied only to the following four industries: retail and service, commercial support service, food and beverage, and health and medical. COMPS will apply to all employers as a general rule, unless the employer falls within one of the newly defined exemptions set forth in prosed Rule 2 of COMPS. Therefore employers who previously considered themselves exempt from the WOs should now review COMPS to determine if it will become covered.
  • Minimum guaranteed salary: If covered COMPS will increase the minimum guaranteed salary to $42,500, effective 7/1/20, well above that in federal law. COMPS minimum will rise steeply thereafter, each year, to $57,500 effective 1/1/26 and be adjusted thereafter per the CPI.
  • Changes to particular job-specific exemptions have been proposed.
  • Changes to the timing of required rest periods and a requirement that employees who are not allowed their 10-minute rest period receive pay not only for the 10-minute rest period but an extra 10 minutes pay.
  • Changes to the ability to take credits and the ability to charge for uniforms.
  • Changes to the fluctuating workweek method of calculating overtime.
  • Expansion of anti-retaliation protections.
  • Expansion of employer obligations as to “transparency,” “language inclusiveness” and posters.

The CDLE has invited comments by 12/31/19 and stated its hope to release a final COMPS by 3/1/20 to become effective 7/1/20.

Source: See the CDLE’s webpage re its proposed COMPS 36.

Expert testimony not required to prove a “disability,” some of the times

The Tenth Circuit held that a plaintiff doesn’t always need to have a medical expert to confirm the plaintiff’s medical condition rises to the level of a “disability” protected by the Americans with Disabilities Act.

When is a medical expert required? “(W)]here injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof,” and that question needs to be asked by each court in each individual case. This seemingly circular standard — expert medical testimony is required when it is necessary to understand the medical condition — was somewhat clarified by the Tenth Circuit when the Court contrasted such cases, at least, against those where the disability is “obvious.”

In short, the Tenth Circuit’s decision makes clear that expert medical testimony is likely always helpful to a plaintiff, might sometimes be required but isn’t always, and no plaintiff, or defendant, will know until the trial court, after undertaking a case-by-case analysis decides in any given case.

Source: Tesone v. Empire Marketing Strategies, case no. 19-1026 (10th Cir. 11/8/19).

Colorado Court of Appeals clarifies unemployment eligibility rules related to marijuana use

The Colorado Court of Appeals has clarified how Colorado’s medical and recreational marijuana laws impact eligibility for unemployment. The case involved an unusual fact pattern that provided the court with a springboard to articulate four rules. The worker was on medical leave, but worked for a financial institution to which he personally owed money. Although he was on medical leave, he still had to come in occasionally to make payments on the loan he owed his employer. While there to make a payment, HR advised that he had come up for a random drug test, on which he tested positive for marijuana. Thus the Court was faced with a case where the person was still an employee but obviously not engaged in or even able to be engaged in actively performing job duties at the time he was tested.

The lower court looked at only one subsection of the unemployment-eligibility statute, CRS 8-73-108(5)(e)(IX.5). Subsection IX.5 renders a worker who tests positive for even otherwise lawful marijuana to be ineligible for unemployment if the test was taken “during working hours.” Because the employee was on medical leave, the court held his positive test did not arise from a sample taking “during working hours.” The lower court then held that because subsection IX.5 was so specific to marijuana, it was not able to look at other sections of the statute.

The Colorado Court of Appeals reversed. The Court of Appeals held that other subsections still apply, not just IX.5. Looking at all the other subsections, the Colorado Court of Appeals held there are at least four ways a worker can be disqualified form receiving unemployment in Colorado due to otherwise lawful marijuana use:

  1. A positive test “during working hours”;
  2. A positive test during or outside working hours that had or could have had an adverse impact on the company;
  3. A positive test during or outside working hours that interfered with the employee’s job performance;
  4. A positive test during or outside working hours that rendered the employee unable to meet “established job performance or other defined standard.”

Here is the full quote from the Colorado Court of Appeals:

Any conflict among the provisions at issue in this case is not irreconcilable.  Subsection (IX.5) disqualifies an individual for the sole reason that he or she had a positive drug or alcohol test while working, essentially dispensing with the need for an employer to establish any impairment of the employee’s abilities or adverse effect on the employer’s business.  However, subsection (VII) would apply where an employee violates an employer’s rule prohibiting drug use, whether on or off the job, but an employer would be required to demonstrate that the employee’s drug use had, or could have had, adverse impacts on the company.  Similarly, subsection (VIII) could be applied to off-the-job drug use but requires proof that the drug use interfered with the employee’s job performance.  And subsection (XX), when applied in a drug use or testing scenario, requires the employer to establish that an employee’s drug use or failed drug test caused him or her to fail to meet an established job performance or other defined standard.  Because there is no irreconcilable conflict, all provisions of the statute are amenable to harmonious construction, and thus must be given effect.  

Source: M&A Acquisition Corp. v. ICAO, — P.3d —, case no. 19CA0679 (Colo.App. 11/21/19).

Honored to be named in Best Lawyers again!

Honored to be named again in Best Lawyers in America!

Excited to speak at the Mile High SHRM 2020 annual conference!

I’m excited to speak at the Mile High SHRM 2020 annual conference.  I will be providing a legal update. I can’t wait to see the other presenters, great lineup!

DOL issues proposed rule re tip-pooling

In a November 2019 opinion letter the DOL reversed position on tip-pooling. As explained there, the DOL lifted the Obama-era DOL’s 80-20 rule, making it easier for employers (like restaurants) to pool tips among tipped employees, including even those who perform some non-tipped work during their day (like waiters who vacuum, set up and clean up the restaurant as well as work tables). In this proposed rule the DOL is proposing to codify its new approach into a formal regulation. Codification of this approach into a regulation — rather than simply setting it forth in an opinion letter — will have at least two effects: It will generally require courts to defer to this interpretation and make it more difficult for future administrations to deviate.

President Trump limits informal agency guidances

Federal law requires administrative agencies to go through a rulemaking process before implementing regulations. To avoid that process, agencies have increasingly begun using informal “guidances,” often issued in the form of memorandums, letters and bulletins. By two Executive Orders, the President has ordered administrative agencies, among other things, to include in any such document a disclaimer that it does not carry the force of law and further to make all such documents available to the public via a searchable database on the Internet. It is not yet clear whether the Executive Orders reach opinion letters, such as the Department of Labor’s well known opinion letters.

Third Circuit rejects Uber’s ability to enforce arbitration agreement with its drivers

Applying the Supreme Court’s recent Oliveira decision, the Third Circuit held that Uber cannot enforce its arbitration agreement with drivers engaged in interstate commerce. In doing so, the Court held that the exception in federal law that prohibits arbitration agreements for drivers engaged in interstate commerce applies not only to drivers who transport goods but also drivers who transport services.

Source:  Singh v. Uber Technologies, Inc., — F.3d — (3rd Cir. 9/11/19).

California attempts to ban mandatory (even opt-out voluntary) pre-dispute arbitration agreements

On October 10, 2019, the Governor of California signed into effect California’s AB 51, which bans mandatory pre-dispute arbitration agreements. This new law continues California’s struggle to find a way to limit pre-dispute arbitration, in direct conflict with the Supreme Court’s recent cases upholding such arbitration.

AB 51 prohibits even otherwise-voluntary pre-dispute arbitration agreements are banned if they would require an “opt out” or “any (other) affirmative action” by the employee to preserve the right to litigate not arbitrate, quoting sec. 432.6(c). AB 51 contains a 1-sided attorney fees clause, which allows a worker but not an employer to recover attorney fees if successful in litigation over the enforceability of an arbitration agreement. Additionally retaliation against a worker who refuses to agree to a pre-dispute arbitration agreement is prohibited, as is conditioning new or continued employment on such an agreement. According to sec. 432.6(h), AB 51 only applies to “contracts for employment entered into, modified, or extended on or after January 1, 2020,” at which time AB 51 will take effect.

It is anticipated that AB 51 will spark immediate litigation as it appears to stand in flat conflict with (and is therefore preempted by) the federal Fair Arbitration Act (FAA), as the Supreme Court has already ruled in a number of recent cases, including its recent decision in Lamps Plus and Epic Resources

Indeed it is so easy to anticipate such legislation that the California legislature itself preemptive responded to such challenges when it passed AB 51 by arguing it was somehow only addressing how pre-dispute arbitration agreements could be entered into in the state of Colorado, which seems to be the very thing that the Supreme Court has been saying states may not do as Congress preempted the field with its FAA. California’s argument frankly seems to make little sense and is expected to find no support within the Supreme Court’s recent line of arbitration cases.

Employers should carefully re-consider any arbitration agreement in California and anticipate that, unless AB 51 is blocked by the courts, they risk becoming a test case for litigation if they require pre-dispute arbitration agreements there after 1/1/2020, even if their agreement is otherwise-voluntary on the basis of an opt-out provision

NLRB loosens restrictions on an employer’s ability to modify wages, hours and working conditions during the term of a CBA

Historically the Board has permitted an employer to change wages, hours and working conditions during the term of a CBA if it can prove a “clear and unmistakable waiver” by the union permitting the change. An example of a “clear and unmistakable waiver” would be contract language expressly authorizing a company to modify the cost of health insurance up to a certain maximum during the term of the CBA so long as the same modification was imposed on non-union workers. That would be just one kind of clear and unmistakable waiver.

Now, the Board will apply a “contract coverage” standard. This is the same standard that has been applied by the D.C. Circuit. Under the “contract coverage” standard, the Board won’t look for language as “clear and unmistakable” as previously required, rather it will ask whether the plain language of the contract seems to “cover” an employer’s right to act unilaterally. The Board believes this approach is not only more consistent with the National Labor Relations Act but reinforces the role of an arbitrator — not the Board — as interpreter of the CBA; in other words, if an employer believes it has contract language authorizing it to make a change, it should be for an arbitrator, not the Board, to be the primary decider whether or not the CBA was breached by the change.

Source: M.V. Transportation, Inc., 368 NLRB No. 66 (2019).

A union that isn’t a union? The New York Times on the growing presence of “solidarity unions”

Interesting lunchtime read today for HR and labor-employment law professionals, in the New York Times. The article discusses the growing presence of non-union unions called “solidarity unions,” especially in the tech industry. These groups are simply informal associations of two or more workers in a workplace.

The article is a good reminder for employers that, if workers don’t feel they have a voice in the workplace, they will find a way to express and protect themselves, whether it means through a formal union or simply acting together to secure their goals.

As the article notes, such workers enjoy legal protections, indeed the National Labor Relations Act protects workers who act to further their wages, hours or working conditions, whether or not they do so through a union. Also protected are worker actions, with no union involved, involving two or more workers actin in concert with each other, or sometimes even, as a previous blog post noted, when a single worker acts on behalf of his colleagues.

The New York Times reports that “solidarity unions” are already present at Google, Kickstarter, Uber and other companies. Their proponents believe they hold several advantages over traditional organized unions: They do not need to be recognized through NLRB-sanctioned elections. They do not need the support of a majority of the workers. They do not need to, and generally do not, enter into collective bargaining type agreements. Rather they prefer not to have such agreements, instead hoping to keep the company “on its toes” by engaging in labor actions if and when the workers choose, for the reasons chosen by the workers.

The article discusses these “solidarity unions” as outgrowths of a single book, Labor Law for the Rank and Filer.

Source: “The Radical Guidebook Embraced by Google Workers and Uber Drivers,” New York Times (10/10/19).

NLRB reverses micro-unit rule

The NLRB has reversed its 2011 Specialty Healthcare decision, which in turn reversed its 2017 PCC Structurals decision, meaning the NLRB will no longer permit a union to try to organize only a sliver of a workforce (a so-called “micro-unit”). Now an employer (or workers) may defeat a union’s effort to organize a micro-unit by proving the petitioned-for unit does not share an internal community of interest or does not have sufficiently distinct interests from those employees excluded from the petitioned-for unit.

Source:  The Boeing Co., 368 NLRB No. 67 (2019)

NLRB permits employers to eject non-employee union agents from their property

Reversing a 1999 decision, Sandusky Mall Co., the Board upheld an employer’s right to eject non-employee union agents from its premises, even though it had routinely granted other non-employees’ permission to solicit on the same premises for “civic, charitable and promotional activities.” In doing so the Board held that a union’s presence to solicit customers to join a boycott is entirely dissimilar from Girl Scout cookie sales, firefighter boot drives, Salvation Army drives, Lion’s Club activities, Red Cross blood drives and church activities. Employers may now comfortably permit such other activities without worry that they could be used by union activists to justify the union’s presence.

The Board’s ruling not only reinstated the exception permitting employers to treat civic, charitable and promotional activities” differently from unions but suggests the Board will now require an even higher showing for unions. The Board held that the new burden of proof will require the union (and NLRB General Counsel) to prove that the employer allowed “comparable organizational activities.” The Board did not give examples of what might be considered “comparable organizational activities.”

Source: Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019).

DOL releases final overtime rule

The DOL has released the final overtime rule that has been discussed as far back as the Obama Administration. As anticipated, the new rule includes multiple changes to current overtime laws, including increases to the minimum guaranteed salaries for most overtime exemptions, an increase to the minimum requirement for so-called “highly compensated” employees, and permitting a 1-time catch-up payment to meet that requirement (subject to certain limitations). The final rule will take effect January 1, 2020. Employers should begin preparing immediately and may wish to start by considering options and tips discussed in this prior post.

NLRB implements Supreme Court’s 2018 decision on arbitration agreements

In 2018, the Supreme Court rejected, in a decision titled Epic Systems Corp. v. Lewis, the argument that Section 7 of the National Labor Relations Act’s protections for protected concerted activity somehow encompass a right to file class action and collective action lawsuits. There the Supreme Court held that, accordingly, employers can require pre-dispute arbitration agreements, even if it means such agreements block class and collective actions.

The Board recently was faced with a case on the issue and adopted the Supreme Court’s approach, restating that the NLRA does not bar arbitration agreements, even if they have that effect. In doing so, the NLRB clarified that employers are still prohibited from retaliating against employees who choose to act together by filing a class or collective action. “We reaffirm, however, longstanding precedent establishing that Section 8(a)(1) prohibits employers from disciplining or discharging employees for engaging in concerted legal activity, which includes filing a class or collective action with fellow employees over wages, hours, or other terms and conditions of employment.

Source:  Cordua Restaurants, Inc., 368 NLRB No. 43 (8/14/19).

Per USCIS, employers should continue using the form of I-9 that expired 8-31-19

Even though the most current form I-9 expired 8-31-19, USCIS advises employers should continue to use it until the new version is released. The USCIS statement is found on its I-9 Central website, which employers can continue to check for release of the new version.

Colorado trial courts are not required to blue-pencil non-compete and non-solicit covenants

Even where an agreement says that covenants “shall be” blue-penciled (meaning, rewritten if determined to be unenforceable and narrowed to whatever the court rules would have been enforceable), a trial court in Colorado is not required to do so. In a recent decision, 23 LTD v. Herman, case no. 16CA1095 (Colo.App. 7/25/19), the Colorado Court of Appeals confirmed blue penciling is within a trial court judge’s discretion. The parties cannot, by way of mandatory language like “shall,” not only confer on the judge the authority to re-write their agreement but an obligation to do so.

Simply put, the court is not a party to the agreement, and the parties have no power or authority to enlist the court as their agent. Thus, parties to an employment or noncompete agreement cannot contractually obligate a court to blue pencil noncompete provisions that it determines are unreasonable.

The case is a strong reminder for employers not to over-reach when drafting covenants, non-competes or non-solicits. While a blue penciling clause may give the judge to make some changes like reducing the geographic or temporal reach of the covenant (how many miles/how many months), the parties should not expect a judge will be willing to make changes beyond that, or even of that nature. Whether to blue pencil at all is an issue for each judge.

Fundamentally, it is the obligation of a party who has, and wishes to protect, trade secrets to craft contractual provisions that do so without violating the important public policies of this state.[5] That responsibility does not fall on the shoulders of judges

Careful what you ask for, warns Colorado Supreme Court

The Colorado Supreme Court warned in a recent case that a party who seeks to enforce a settlement agreement — even by merely seeking a declaratory judgment and without actually asserting a breach of the settlement agreement — may make itself liable, if it fails in its action, for attorney fees under the settlement agreement’s fee-shifting clause, especially where that party itself had stated its intent to seek such fees had it been successful.

Having themselves sought attorney fees under that provision, plaintiffs tacitly acknowledged that their claims sought to enforce the Settlement Agreement’s terms. Having done so, plaintiffs cannot now take the opposite position, merely because their lack of success at trial rendered them liable for defendant’s attorney fees under the Settlement Agreement

Source: Klun v. Klun, 442 P.3d 88 (Colo. 6/3/2019).