On January 13, 2021, the U.S. Supreme Court prevented President Biden’s vaccination or testing mandate for large employers (issued as an OSHA Emergency Temporary Standard (ETS)) from being enforced. The Court allowed the vaccine mandate for certain healthcare workers issued by the Center for Medicare and Medicaid Services (CMS) to go into effect nationwide, initially with the exception of Texas, and now in all 50 states, as explained below. The Court’s opinion largely relied on an interpretation of statutory authority—finding OSHA exceeded it and CMS did not. Both issues were sent back to the lower courts of appeal for further determinations, but it is unlikely the appellate courts will come to different conclusions. And, while the ETS is not dead, it was only made effective for six months (until May 5th), and the appeals process doubtfully can be completed by that date. Continue Reading
The series of tornadoes that ripped through parts of the county last month serves as a potent reminder to employers: having a disaster plan and preparedness training is important.
In Illinois, six warehouse workers were killed when the roof collapsed at a distribution center during a tornado and workers from neighboring distribution facilities complained that they were expected to work through tornado warnings, and that they received very little training on what to do. And in Kentucky, eight employees died at a candle factory during a tornado and workers claimed that they were threatened with firing if they left early to avoid the tornado. These recent events are a reminder to employers to ensure that they have a disaster plan and preparedness training in place for their employees. Continue Reading
Marijuana was once again one of the hottest legislative topics across the nation in 2021, and while some states’ new legislation provided greater protections to employers with drug-free and/or zero-tolerance policies, others took a more employee-friendly approach. Employers will have to continue to review, update, and carefully navigate workplace drug policies to ensure legal compliance based on the employee’s locations and whether the employee’s use is medical or recreational.
Given the rapidly spreading omicron variant, employers with as few as five employees are well advised to refresh themselves on their obligations under the Family Medical Leave Act (“FMLA”) and its California counterpart, the California Family Rights Act (“CFRA”). Generally, FMLA and CFRA provide 12 weeks of job-protected leave during a 12-month period. Private employers are covered under FMLA if they have employed 50 or more individuals in any 20 workweeks in the current or preceding calendar year. As of January 1, 2021, employers are covered under CFRA if they employ as few as five or more persons. Continue Reading
Across the country, many states have enacted Equal Pay laws which require employers to comply with a variety of requirements, typically including limits on inquiries about prior salaries and the permissible rationale for pay differentials between similar employees. Now, many states are amending those laws to require companies to disclose the expected pay range of a position to potential job applicants. Some states now require this disclosure as early as in the job posting, while others require disclosure of the possible pay range at the time an offer is made. As of December 2021, seven states have enacted laws requiring employers to disclose salary ranges to job applicants. In addition, both Massachusetts and Pennsylvania have pending legislation. Continue Reading
General Counsel Jennifer Abruzzo of the National Labor Relations Board continues to make waves as she shares with employers, unions, and workers alike, her views on hot button issues at the NLRB. During Abruzzo’s remarks at the American Bar Association Section of Labor and Employment Law Conference last month, Abruzzo went beyond the guidance provided by her office in GC Memo 21-03 (concerning what constitutes protected activity under the National Labor Relations Act (the Act)), GC Memo 21-07 (concerning full remedies in settlement agreements), and GC Memo 12-08 (concerning whether student athletes enjoy statutory rights under the Act), and delineated in greater detail her expansive views on employee rights under the Act, and her prosecutorial agenda. Abruzzo’s broad interpretation of what the Act protects and prohibits, coupled with her intent to impose harsher remedies for unfair labor practice violations, mark trouble for private sector employers. Below is Akerman’s list of the top ten anticipated labor law changes in 2022 and steps employers can take to mitigate risk of appearing before the NLRB. Continue Reading
Illinois employers will be far more restricted in their ability to bind employees to non-competition and non-solicitation agreements as result of an amendment to the Illinois law governing such agreements. The law amends the Illinois Freedom to Work Act effective January 1, 2022, and imposes some initial hurdles and eligibility conditions on agreements executed after that date. It provides more clarity and potentially less litigation over non-competition and non-solicitation agreements, as well as a greater likelihood of enforcement for agreements that comply with the law.
We provide a summary of the amendments below: Continue Reading
Beginning December 28, 2021, employers must pay tipped employees the full minimum wage for periods when non tip-producing work is performed for a substantial amount of time, in light of a new Department of Labor (DOL) Final Rule taking effect that date. To comply with the rule, employers should revisit their current policies regarding how tipped employees are compensated and ensure that they carefully track how tipped workers spend their time.
A tip credit allows an employer the opportunity to satisfy a portion of its minimum wage obligation to a tipped employee by taking a partial credit toward the minimum wage based on the amount of tips an employee receives, provided that the employer meets certain requirements. Please note that the references to minimum wage requirements in this article are based on the federal minimum wage; many states and localities have higher minimum wage requirements that must be honored. In addition, some states may not allow for a tip credit at all. Continue Reading
Consider this: the General Counsel of the National Labor Relations Board has opined that some student-athletes at the collegiate level are “employees” for purposes of the right to engage in protected concerted activity, and the U.S. Supreme Court has found that student athletes are entitled to certain compensation. So, if student athletes have new rights under federal law, might others as well?
These trends in college athletics may have far-reaching implications. Jennifer Abruzzo, the General Counsel of the NLRB has opined that some student athletes are employees and are entitled to “Section 7” rights under the National Labor Relations Act. Abruzzo’s recent Memorandum, which announced that certain student-athletes are “employees” under the NLRA, touched on trends that could have an impact on all employers in every industry. Specifically, the Memorandum hinted at expansion of Section 7’s scope, and also reiterated the GC’s position that misclassifying employees is an independent violation of the NLRA. Continue Reading
The wait is over for employers seeking clarity on the details of the Biden Administration’s vaccine and testing rules for private employers, first announced by President Biden in early September and now slated to take effect in part by an initial compliance date of December 6, 2021, with remaining requirements effective alongside federal contractor vaccine requirements on January 4, 2022, as set forth below.