When an employee gets injured on the job, employers know to provide information about workers compensation coverage. But employers would be wise to remember to also consider whether the injury constitutes a “serious health condition,” triggering additional obligations under the federal Family and Medical Leave Act (FMLA) or similar state leave statutes.
The Occupational Safety and Health Administration (OSHA) has recommended employers either require vaccination or regular COVID testing, in addition to mask wearing and physical distancing in updated guidance issued on August 13, 2021. With the Equal Employment Opportunity Commission affirming that employers can mandate vaccines subject to certain exceptions, and the Department of Justice chiming in that such mandates are not prohibited simply because a vaccine only has Emergency Use Authorization, employers have additional support for vaccine mandates. This latest guidance for non-healthcare employers aligns with the information published by the Centers for Disease Control and Prevention (CDC) on July 27.
All unionized and nonunionized private sector employers should prepare now for the anticipated legal changes contemplated in the National Labor Relations Board’s latest general counsel memorandum, GC 21-04. The Memorandum, released August 12, 2021, provides a detailed roadmap of the legal precedents and case-handling processes that new NLRB General Counsel Jennifer Abruzzo will advocate changing during her four-year term.
Employers that bar staff from communicating with the media should take another look at those prohibitions, following a recent federal appellate decision finding such a policy unlawful under the National Labor Relations Act (NLRA). An employee’s critical letter to the editor might be embarrassing, but taking action against the author for writing it may be unlawful. Continue Reading
Florida has given employers a new weapon in their trade secret protection arsenal: the Combatting Corporate Espionage in Florida Act. With the Biden Administration’s goal of curtailing non-competes and the Supreme Court’s narrow reading of a federal computer hacking law, employers are looking for additional ways to protect their sensitive business information. While seemingly targeted at foreign interference, the Corporate Espionage Act may provide additional domestic employer trade secret protections. The act was unanimously passed by the Florida Legislature in June and takes effect October 1, 2021.
Texas employers of ALL sizes should be aware that Texas has significantly expanded employee protection for sexual harassment claims with two new bills signed into law by Governor Abbott. The first opens the door for Texas employers of all sizes to be liable for sexual harassment. The second extends the statute of limitations for sexual harassment claims in Texas from 180 days to 300 days. Both are effective September 1, 2021.
California employers finally have clear guidance on the implications of failing to comply with California’s meal and rest break requirements under the Labor Code. Most businesses in California are familiar with meal and rest break requirements, and, equally so, with the penalty mandated by Section 226.7 of the Labor Code for violations—one hour of pay at the employee’s “regular rate of compensation” for each non-compliant break. What has been less clear, however, is how an employee’s “regular rate of compensation” should be calculated. This ambiguity has left employers struggling for years over best practices, often at the cost of expensive class action lawsuits. Finally, the California Supreme Court has resolved this issue: penalties for meal and rest break violations must be paid at the “regular rate of pay,” which includes an employee’s hourly wage rate plus any non-discretionary pay earned over the pay period.
Don’t be misled: President Biden’s July 9 Executive Order does not bar non-compete agreements. Rather, it “encourages” the Chair of the Federal Trade Commission to use rule-making to limit their use.
In fact, the only text in the Order addressing non-competes reads, in its entirety: “To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”
The old “80/20 rule” is back again for tipped workers under the latest proposed Final Rule issued by the Department of Labor (DOL) last month. Employers in the service industry, especially those employers who take a tip credit and/or implement a tip pool for their employees, should keep an eye on this latest Final Rule. Under the Trump Administration, the DOL had issued a different Final Rule in its final weeks which was intended to formally incorporate a 2018 tip credit amendment to Section 3(m)(2) of the Fair Labor Standards Act (FLSA) into the DOL’s tip regulations and guidance. That version of the Final Rule was set to go into effect on March 1, 2021, until the Biden Administration asked the DOL to postpone its implementation pending review. The DOL’s Notice of Proposed Rulemaking, issued on June 23, 2021, proposes to withdraw and amend the portion of the Trump Administration version of the Final Rule concerning when an employer can take a tip credit for an employee performing tipped and non-tipped work/dual jobs. Comments on the proposed Final Rule are due by August 23, 2021 and can be submitted here. Continue Reading
Certain U.S. employers now have a second chance to refile Fiscal Year 2021 H-1B lottery visa petitions that were rejected or administratively closed solely because of the requested employment start on the petitions. Employers must refile eligible FY 2021 H-1B cap petitions, with all applicable fees, before October 1, 2021.
Employers petitioning for cap-subject H-1B candidates are required each year to register electronically through the myUSCIS portal and pay a $10 registration fee to be entered in the yearly lottery. Only employers with selected lottery registrations are then able to file complete H-1B petitions with USCIS within 90 days of selection notification. In practice, employers filing cap-subject H-1B petitions must request an employment start date of October 1 during the relevant fiscal year. In an unprecedented move, during FY 2021 the U.S. Citizenship and Immigration (USCIS) randomly selected H-1B lottery registrations during two separate periods to reach the congressionally mandated annual cap of 85,000 H-1B visas—a move that ultimately left employers confused about which employment start date to request for H-1B hopefuls. Continue Reading