On June 23, 2020, the National Labor Relations Board (“NLRB”) ruled that newly-represented employees can be disciplined under existing disciplinary policies even if no bargaining has occurred. 800 River Road Operating Company, Inc., 369 NLRB No. 109 (2020). For the first eighty years of the National Labor Relation Act’s existence, this had been the law of the land. A surprise decision four years ago in Total Security Management Illinois, 364 NLRB No. 106 (2016), upended this rule by requiring an employer to bargain with its employees’ newly certified representative (union) before “serious” discipline could be imposed. The 800 River Road decision returned an employer’s bargaining obligation to that historical and long-standing status – discipline consistent with an existing disciplinary policy is permissible even if the employer has not bargained about the discipline with the employees’ representative. The 800 River Road decision places a premium on well-crafted employee handbooks and disciplinary policies and a solid record retention policy to demonstrate the employer’s record of enforcement.

The decision is only the most recent decision in the long-running debate over the proper interpretation and application of the unilateral change doctrine enunciated by the Supreme Court in NLRB v. Katz, 363 U.S. 736 (1962). In Katz, the Court held that upon commencement of a bargaining relationship, employers “are required to refrain from making a material change regarding any [mandatory] term or condition of …employment…unless notice [of the change] and an opportunity to bargain is provided to the union.” (Slip op.3). Immediately following this sweeping generalized holding, employers ceased providing annual wage increases under existing compensation policies. The NLRB responded by creating the “dynamic status quo” policy. The dynamic status quo exemption to the Katz rule is applied when an employer’s practice or the policy itself becomes a term or condition of employment.

Continue Reading Order Restored, No Duty to Bargain Before Employee Disciplined

The new COVID-19 reality means that more employees around the world are now working from home. Some companies are transitioning to a permanent remote working model; others are looking at adjusting schedules so that a smaller number of employees are in the office at any time. As more employees work remotely, companies must grapple with the various statutes and regulations regarding expense reimbursements for telecommuting.

We previously considered the U.S. employment law considerations employers should keep top of mind when handling remote working expense reimbursements. In this post, we addresses expense reimbursement considerations employers should know when approaching this topic outside of the US.

Expense Reimbursement

The general rule outside of the US is that if an employer directs employees to work remotely, or if the government has mandated remote working, employees cannot be required to pay “out of pocket” expenses for such home working arrangements. Most jurisdictions do not have specific statutory requirements for additional payments or stipends to employees who works from home. Instead, employers are usually required to reimburse employees for “business expenses” incurred while working from home. Such expenses include, for instance, home office equipment, cell phone fees, and internet costs.

Regional Variations

The rules on expense reimbursements for remote employees depend on where they work. Asia-Pacific and Latin American jurisdictions tend to offer employers more flexibility, and there are generally no additional payments or stipends required by law for an employee who agrees to work from home. By contrast, in many European jurisdictions, such as Switzerland, companies are required by law to reimburse employees for all business expenses. A few examples illustrate the “on the ground” approach to expense reimbursements in the various regions:

  • Asia-Pacific (Malaysia): No statutory requirement for reimbursement. However, employers should ensure that employees have the necessary equipment/facilities (e.g., internet, telephone, computer system) and proper working space to perform work. If the employer does not ensure that employees are properly equipped, the employer may face potential constructive dismissal liability.
  • Europe (Netherlands): No statutory requirement for reimbursement. However, to demonstrate that the home working arrangement is reasonable, employers should offer compensation to the employees in light of the specific circumstances.
  • Latin America (Mexico): No statutory requirement for reimbursement. However, employees may ask to be reimbursed for any actual, out-of-pocket costs related to working from home.

Takeaways

As more employees move to temporary or semi-permanent remote working arrangements, employers should consider their expense reimbursement obligations for their global workforce.  As a general rule, employees will usually be entitled to be reimbursed for actual, out-of-pocket expenses that are related to a work from home arrangement. Employers should implement an internal communication plan and set clear guidelines to ensure a compliant and consistent approach across global regions. A coordinated approach will help you adjust to a post-pandemic world and the new normal.

For help addressing any country-specific inquiries, please contact your Baker McKenzie employment lawyer.

On June 15, 2020, the US Supreme Court changed the face of federal workplace anti-discrimination laws. In Bostock v. Clayton County, the Court ruled that Title VII’s prohibition against job discrimination on the basis of “sex” includes sexual orientation and gender identity. Though Title VII of the Civil Rights Act of 1964 has long-prohibited employers from discriminating on the basis of color, national origin, race, religion, and sex, the question of whether sexual orientation and gender identity were included in the definition of “sex” went unsettled — until now.

“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,” Justice Neil Gorsuch wrote for the court in the 6-3 opinion. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Justice Gorsuch and fellow conservative Chief Justice John Roberts joined liberal Justices Breyer, Ginsburg, Kagan, and Sotomayor in the majority.

Continue Reading Support for LGBTQ Rights, with a Signal for Religious Liberty: What Does Bostock Actually Mean for Employers?

In the wake of the economic downturn resulting from the COVID-19 pandemic, government investigations into perceived preferential treatment of foreign workers by U.S. employers is expected.

At-risk companies include those in industries that typically employ a higher number of foreign workers under H-1B, H-2A and H-2B visas, from technology and consulting to hospitality and food production/agriculture. The risk is greater for those companies that have also implemented reductions in force, furloughs, salary reductions or similar measures in response to the COVID-19 crisis.

In April, the U.S. Department of Justice celebrated the three-year anniversary of the president’s 2017 Buy American and Hire American executive order and issued a press release “reaffirming its commitment to fight discrimination against U.S. workers.” The press release emphasizes the mission of protecting U.S. workers from discrimination in the workplace and attacking policies that favor foreign workers given the impact of COVID-19 on the U.S. economy.

Since the president’s 2017 order, 39% of citizenship status discrimination actions settled by the DOJ have focused on protecting U.S. workers from discrimination by U.S. employers who allegedly favored foreign workers. This article will provide an overview of the relevant law and penalties, the evolution of enforcement of the anti-discrimination provisions against U.S. employers, and steps U.S. employers should take to mitigate risk.

To continue reading this informative article, please click here.

Special thanks to the authors, Ginger Partee and Matthew Gorman.

 

This article was originally published in Law360.

 

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Connecticut, New Jersey and New York announced a joint travel advisory, directing anyone (including their own residents) traveling to the tristate area from a state that has a new daily positive test rate higher than 10 per 100,000 residents or a state with a 10% or higher positivity rate over a 7-day rolling average, to self-quarantine for a 14-day period from the time of last contact within the identified state. The original list of states that qualified when the order was announced on June 24 were Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas and Utah.
  • The Governor of Texas rolled back certain reopening measures, while Illinois and certain regions of New York entered into the next phases of their respective reopening plans.
  • Several states will remain in the current phase of their reopening plans rather than proceed to the next phase as originally planned, including Florida, Idaho, Kansas, Louisiana and North Carolina.
  • Unless extended or amended, the existing shelter-in-place orders are set to expire this week in Georgia, New Mexico and Rhode Island.

For more information, please contact your Baker McKenzie attorney.

On June 5, 2020, President Trump signed the Paycheck Protection Program Flexibility Act into law. The Flexibility Act amends the Paycheck Protection Program (PPP) provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in several important ways, including by giving borrowers more time to spend loan funds and still obtain forgiveness, increasing the amount of non-payroll costs that may be forgiven, and creating two new “safe harbors” that allow borrowers to achieve full forgiveness despite reductions in employee headcount or wages.

Congress enacted the PPP provisions largely to allow small businesses to meet their payroll obligations and avoid layoffs during the pandemic. To encourage businesses to keep their workforces and payrolls intact, the CARES Act provides that employers who do not reduce headcount or wages and salaries during certain measurement periods may qualify for forgiveness of their PPP balances. However, under the CARES Act as originally enacted, forgiveness is reduced or eliminated if employers lay off workers or reduce their wages.

One of the new “safe harbors” allows employers who have been unable to operate at the same level of business activity as a result of compliance with COVID-19 related federal safety guidelines and closure orders to obtain full forgiveness even though they have reduced employee headcount. But if employers can fit within the Flexibility Act’s new safe harbor, is it really “safe” for them to do so? We offer insight below. Continue Reading Is it Safe to Rely on the PPP Flexibility Act Safe Harbor for Reduced Activity Levels?

On June 23, the San Francisco Board of Supervisors voted to approve “right to reemployment” legislation that requires large employers to first offer laid-off workers their old jobs back before offering employment to new applicants (“Ordinance”). It will become effective immediately upon Mayor London Breed’s signature and will expire upon the 61st day following enactment unless extended.

Advocates of the Ordinance argued the requirement is necessary to ensure employers don’t use the pandemic as an opportunity to simply replace old workers with new employees who are younger and less expensive. Organizations lobbying against the Ordinance argued that it is overly burdensome; violates core constitutional principles; runs counter to several federal and state laws; and is extremely vulnerable to abuse. Similar legislation has surfaced in Los Angeles County as well. More on that to come.

Covered Employers

“Covered employers” are defined as for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020.

Continue Reading San Francisco Provides Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic

We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Georgia, Hawaii, Vermont and Wyoming extended their state’s shelter in place orders.
  • Several states have entered or will soon enter the next phase of their reopening plans or expanded current phases to include more businesses or regions, including California, Connecticut, Maine, Missouri, Nebraska, New York and Utah.
  • The New Hampshire shelter-in-place order expired, but the Governor issued a new emergency order in effect from June 16, 2020 to August 1, 2020, which requires all businesses to comply with Universal Business Guidelines and industry-specific guidelines.

For more information, please contact your Baker McKenzie attorney.

We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted insights into critical issues employers are facing as we navigate the COVID-19 pandemic.

This series builds on our recent client alerts, webinars, podcasts and Shelter-In-Place Tracker that are all designed to help employers as they consider reopening the workplace.

Please click below to watch this week’s video chat:

Yesterday evening, the President signed a Proclamation expanding the restrictions outlined in the April 22 Proclamation in an effort to protect the U.S. workforce amidst the economic downturn related to the ongoing COVID-19 pandemic. The Proclamation suspends the entry of any individual pursuant to H-1B, H-2B, L, and J nonimmigrant status, and their dependents (H-4, L-2, and J-2), until December 31, 2020. The Proclamation applies to individuals who are currently outside of the United States and are not in possession of a nonimmigrant visa or other official travel document valid as of June 24, 2020. In addition, the Proclamation extends the restrictions on the issuance of immigrant visas outlined in the April 22, 2020 Proclamation through December 31, 2020. This Proclamation contains a range of exceptions, which are detailed below.

The Proclamation is separate from Embassy and Consulate closures and COVID-19 related restrictions on travel to the US from certain countries, which continue to remain in effect. Yet, those measures must be read in conjunction the latest Proclamation. The June 22 announcement imposes further restrictions on the movement of foreign national employees into the United States that likely has a wider impact on US employers than the April 22 Proclamation.

Continue Reading Latest COVID-19 Related Presidential Proclamation on US Immigration Expands Restrictions and Impacts Nonimmigrant Visa Applicants Abroad