The Black Lives Matter Movement and the Workplace

The Black Lives Matter movement, protesting racism, police brutality, and the deaths of George Floyd and other Black Americans, has not only been seen and heard in streets around the world; it has found a new voice in corporate boardrooms as well. The 8-minute, 46-second video of a police officer indifferently kneeling on the neck of Floyd, an unarmed Black man, as he pleaded “I can’t breathe” has prompted a wave of statements from CEOs and business leaders expressing solidarity and a commitment to address the problem of systemic racism. But how?

One thing is clear: companies should acknowledge what is happening in this tumultuous time. Failing to do so may be viewed as complicit by employees and clients alike. But the acknowledgment of support is not enough if the company’s deeds do not match its words. Beyond condemning racism and police brutality, what might an employer do? It is confusing to know how to respond given the issues and varying industries, but the confusion should not lead to paralysis. Here is a sampling of what companies around the country are doing:

Navigating the NLRA in the Pandemic and Post-Pandemic Workplace: What Both Union and Nonunion Employers Need to Know

By Amy Moor Gaylord and Thomas Y. Mandler on June 29, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Labor Relations, Whistleblower & Retaliation Claims

As shelter in place restrictions ease and U.S. workplaces begin to reopen, both union and nonunion employers may find themselves facing a host of new challenges. Employers may wonder what they should be doing to keep their employees safe at work. They may wonder what kinds of medical tests they can perform on employees before allowing them into their facilities. They may wonder whether they need to disclose to their employees when one of their coworkers tests positive for the virus. But, what they might not be thinking about is whether their employees’ voiced questions and concerns on these types of issues are protected by the National Labor Relations Act (NLRA), or whether their employees may seek out unions to protect them in the workplace. Employers should be pondering that with respect to both essential workers who have been working through the pandemic and nonessential workers who may be stepping foot back into their workplaces for the first time in months.

Suspending Entry for Temporary Workers: What Employers Need to Know

By Rachel L. Perez on June 23, 2020 Posted in Immigration Planning & Compliance

On Monday, President Trump issued a Proclamation restricting certain foreign workers from entering the U.S. through the end of 2020, claiming it is necessary to curb the “economic contraction resulting from the COVID-19 outbreak.” The ban specifically targets work visas that many American employers rely upon to fill U.S. labor shortages. With the stated purpose of reducing competition against Americans for jobs in the U.S. economy, the Proclamation restricts visa issuance to certain H-1B professional specialty occupation workers, H-2B seasonal non-agricultural workers, J exchange visitors, and executives and managers under the L nonimmigrant visa program. The Proclamation excludes healthcare industry workers, foreign nationals providing medical research at United States facilities to combat COVID-19, and those supporting the U.S. food supply chain during the economic recovery, among other temporary workers. The temporary worker suspension becomes effective on June 24, 2020, at 12:01 AM Eastern Standard Time and will remain in effect through December 31, 2020.

It’s Official: Discrimination on Basis of Sexual Orientation/Transgender Status is Prohibited

By Rebecca A. Barrett on June 16, 2020 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers should take note that discrimination on the basis of sexual orientation or transgender status now clearly violates federal law. In a landmark decision issued on June 15th, in Bostock v. Clayton County, the Supreme Court held (6-3) that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964.

DOL Changes Rules for Fluctuating Workweek and Retail Establishments

By Adrienne Scheffey and Arlene K. Kline on June 8, 2020 Posted in Wage & Hour

Employers who use the fluctuating workweek method of compensating employees and those who rely on the retail establishment exemption from overtime are both in for some changes. Recently the Department of Labor (DOL) passed two key regulations altering the application of certain rules under the Fair Labor Standards Act (FLSA) applicable to each. First, the DOL has authorized employers to offer bonuses and hazard pay to workers with fluctuating workweeks, without destroying the validity of that method of pay. Second, it has changed its regulations addressing which businesses qualify as “retail” businesses for certain overtime exemptions. Employers should review these rules and identify whether either policy might provide relief to their businesses as they adjust to flexible schedules and potentially new service or retail offerings.

Homeland Security Eases Policy on Expired Documents and Extends Remote Verification for Form I-9

By Rachel L. Perez on June 3, 2020 Posted in Immigration Planning & Compliance

In light of COVID-19, the federal government has extended temporary guidance relating to remote verification and relaxed restrictions on documents supporting I-9 verification. With respect to the latter, given ongoing stay-at-home orders and restrictions on renewing state driver’s licenses, state ID cards, and other forms of List B identity documents due to COVID-19, the Department of Homeland Security (DHS) has issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification. As of May 1, 2020, employers may treat List B identity documents that expired on or after March 1, 2020, and are not otherwise extended by the issuing authority, the same as if the employee presented a valid receipt for an acceptable document when completing Form I-9. Employers must also be sure to complete the 10/21/19 edition of Form I-9, which became mandatory on May 1, 2020.

Chicago Prohibits Retaliation Against Employees Who Follow Orders Requiring Them To Stay At Home

By Harrison Cooper and John P. "Pete" Morrison on June 2, 2020 Posted in Employment Counseling & Workplace Claims Prevention

Employees in Chicago have been granted new protections if they must stay at home to comply with a state or local stay order or to care for someone under such an order under a new Chicago City Council ordinance enacted late last month. The Anti-Retaliation Ordinance, SO2020-2343 protects employees who work as few as two hours in a two-week period and is effective immediately.

Across the Digital Divide: Managing Remote Workers

By Nicholas Erickson on June 1, 2020 Posted in Employment Discrimination Harassment & Retaliation, Privacy, Wage & Hour

The explosive growth of teleworking during the COVID-19 pandemic has re-shaped notions about how we work, presenting novel challenges for management. Re-opening business worksites brings new legal and operational challenges in continuing to effectively manage remote workers, while deciding whether, when, and which remote workers should return to the worksite. The new focus on teleworking requires consideration of a host of issues including technology, productivity and communications, cybersecurity, time and recordkeeping, and best practices for avoiding workplace claims.

Avoiding Potential Workplace Claims Arising from Reopening of Businesses

By Melissa Torres and Karen M. Buesing on May 18, 2020 Posted in Employment Discrimination Harassment & Retaliation, Employment Litigation, Medical & Other Leaves, Wage & Hour, Workplace Safety & OSHA

As employers contemplate or commence reopening, they should be cognizant of potential workplace claims which are likely to escalate in the COVID-19 era. Such claims can arise out of a wide range of situations, including: deciding which employees should be brought back to the worksite first, which should be allowed to continue to telework and where there isn’t sufficient work, which should be terminated; barring vulnerable workers from returning to work; failing to provide a safe workplace; interfering with leave rights; and wage and hour errors. Employers should take steps now to reduce exposure to such claims.

Managing a California Workforce During COVID-19

By Marissa Alguire, Damien Delaney, Corina Valderrama and Brian Noh on May 4, 2020 Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

While some states have moved quickly to re-open for business, California Governor Gavin Newsom has announced a four-stage plan to modify the statewide stay-at-home order, beginning with expanded testing and contact tracing measures, and culminating with the re-opening of live-audience sports, concerts, and other large events. As California employers begin implementing that plan, they must keep California’s unique employment law requirements in mind.