Organizations will continue to be held accountable for diversity, equality and inclusion post-COVID-19 and in connection with the Black Lives Matter movement. The next few video chats in our series will help in-house counsel and HR executives who are working to build a strong corporate culture of professionalism and respect do so in a way that is legally compliant and mitigates the risk of a backlash.

Please click below to watch the video chat:

The US Supreme Court significantly altered federal anti-discrimination law in its landmark June ruling in Bostock v. Clayton County. This week’s video chat provides practical advice for employers following Bostock’s extension of anti-discrimination protections to LGBTQ employees and its interaction with employees’ religious beliefs.

Please click below to watch the video chat:

Religious Beliefs in the Workplace Following the Supreme Court’s Bostock Decision

Big thanks to Kim Sartin in our London office for her contributions to this post.

As many businesses start to reopen, and travel restrictions are lifted in some locations, employers are gearing up for the inevitable question — when can employees travel? At the moment, we’re certainly seeing companies re-starting business travel that is deemed essential, but it would be an unusual case where an employer was making it mandatory for employees.

Here is a checklist of considerations to help inform the decision to allow or mandate business travel at this time:

  1. Health and safety. Of course, an employer’s first priority is to protect the health and safety of its workforce. Due attention must be paid to whether it is safe for employee travel in the contemplated areas. Companies whose business involves travel into areas where the virus is particularly active or accelerating should first try to maintain customer contact or business contact through other means, e.g. teleconference, webinar, or video conference. (Johns Hopkins University has a useful global tracker that shows how prevalent the virus is in various locations.)
  2. Quarantine rules and travel restrictions. Travel restrictions and quarantine rules are complex and changing daily. The EU operates a “white list” of non EU countries from whom travelers are permitted (see HERE) although some EU countries have added additional countries to the list. However, even if an individual is permitted entry in theory, a negative pre- or post-travel Covid test may be required to avoid quarantine on arrival (e.g. Germany, Czech Republic, France). From a practical perspective, even if quarantine may not be required on arrival in the destination country, many organizations are reticent to send personnel to another location with the risk of them having to quarantine for 10 or 14 days on their return. It is important to review local quarantine orders carefully as the differences are nuanced. (In the US, use our 50 State Shelter-in-Place / Reopening Tracker to track re-opening orders and quarantine restrictions.)
  3. Litigation. It’s important to be aware of the current litigation climate; claims for health and safety violations are proliferating. Albeit largely a US phenomenon at the moment, employees are increasingly raising health and safety concerns elsewhere. (Listen to Employment Litigation Predictions in a COVID-19 World: an Insider’s View From the Plaintiff’s Bar.) Individuals who believe a company exposed them to coronavirus may have legal claims, including claims under workers’ compensation claims (for employees) and legal claims such as negligence. Note that, across the US, laws are being passed to extend workers’ comp coverage for any liabilities.
  4. Reputation. Consider the possibility that the employer could receive negative publicity if employees are engaging in business travel for nonessential purposes, particularly if that travel results in exposure to coronavirus on the part of the employee or others. On the flip side, some employees are eager to travel and may view increased flexibility as a positive.
  5. Other options? Evaluate whether increased use of technology and video conferencing may substitute for in-person meetings to avoid business travel, taking into account security needs and the capacity of the company’s IT infrastructure. If business travel remains essential, consider carefully the rules on entry / return and work closely with the employee to try and mitigate risks as far as possible e.g. in terms of how they travel / where meetings are to take place, etc.

For assistance developing your company’s travel policy, contact your Baker McKenzie employment lawyer.

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, Colorado, Kentucky, Louisiana, South Carolina and Vermont extended their emergency declaration orders and/or the duration of the current phase of their reopening plans.
  • Louisiana and New Jersey moved to the next phase of their respective reopening plans.
  • Indoor dining is now permitted in New York City and Philadelphia at 25% capacity.
  • The Governors of Connecticut, New Jersey and New York modified their tri-state COVID-19 travel quarantine list by adding back Delaware, Maryland, Ohio and West Virginia. The tri-state list currently includes 35 states and territories.

For more information, please contact your Baker McKenzie attorney.

 

 

 

California’s latest move on the COVID-19 front is an attempt to fill the gap left by the federal Families First Coronavirus Response Act (FFCRA) – and requires larger employers to act immediately. The FFCRA – which mandates paid sick and FMLA leave for designated COVID-19 reasons – does not apply to employers with 500 or more employees. The FFCRA also allows employers of certain health care workers and emergency responders to exclude those employees from its coverage.

On September 10, 2020, Governor Newsom closed these FFCRA loopholes for California-based employees by signing A.B. 1867 into law. The new statute takes effect immediately, and by September 20, 2020, requires employers to provide up to 80 hours of “COVID-19 supplemental paid sick leave” to the following “covered workers”:

  • California-based employees of larger employers (500 or more employees in the U.S.);
  • Specified “food sector workers” (A.B. 1867 effectively codifies Governor’s Newsom’s existing Executive Order already granting paid COVID-19 paid sick leave to these workers); and
  • Health care workers and emergency responders who were excluded from FFCRA by their employers.

A.B. 1867 does two other things:

  • It requires employers to allow employees who work in food facilities, as defined in Section 113789 of the Health and Safety Code, to wash their hands every 30 minutes and additionally as needed, and
  • It creates a new mediation pilot program under which small employers (5 to 19 employees) may request mediation through the Department of Fair Employment and Housing (DFEH) within 30 days of receiving a right to sue notice for alleged violations of the California Family Rights Act (CFRA), the state law equivalent of the FMLA.

Interestingly, nothing in A.B. 1867 expressly limits the new COVID-19 sick leave benefit to California-based employees, but California’s ability to regulate employment relationships generally stops at its borders.

A.B. 1867’s requirements are detailed below.

Continue Reading Larger Employers Must Act Quickly To Address California’s New Supplemental Paid Sick Leave Law, Including Making Changes to Paystubs Within 10 Days

On September 4, 2020, the California Legislature passed Senator Hannah-Beth Jackson’s bill relating to annual reporting of pay data (Senate Bill 973). If Governor Newsom signs the bill, as expected, SB 973 would require private employers with 100 or more employees to report pay data to the Department of Fair Housing and Employment (DFEH) by March 31, 2021, and by March 31 each year thereafter, for specified job categories by gender, race, and ethnicity.

Legislation Intended to Close the Pay Gap for Women and People of Color

Senator Jackson is known for advocating justice for women; she authored the landmark California Fair Pay Act (Senate Bill 358), and considers SB 973 an “important step towards closing the pay gap” and achieving “equal pay for women and people of color.” (Bill Analysis here.) While legitimate and lawful reasons may exist for paying some employees more than others, the bill notes that discrimination continues to exist, with often “hidden from sight” pay discrepancies resulting from unconscious biases or historic inequities. A simple premise underpins SB 973: “You can’t fix what you can’t see.” (Bill Analysis here.)

According to Senator Jackson, “Despite all the progress our state has made on equal pay, the pay gap remains a serious problem that costs an estimated $79 billion in lost wages a year in California[,]” and “is especially concerning for women of color with African American women earning 61 cents and Latinas just 42 cents for every dollar earned by white, non-Hispanic men.” Senator Jackson modeled the bill after the EEO-1 component 2 reporting requirements, and it follows a setback at the federal level in 2017 when the Trump Administration suspended a federal rule that would have similarly required large employers to report pay data by gender, race, and ethnicity.

Opponents raised concerns about the compliance burden, the potential that W-2 earnings may reflect a disparity, when none exists, and the myriad factors (other than gender, race, or ethnicity) that could lead to pay disparity and “have nothing to do with pay discrimination.” (Bill Analysis here.)

Proposed Pay Data Report

If signed by the governor, the new law takes effect January 1, 2021. If effective, by March 31, 2021, private California employers with 100 or more employees that are required to file an annual Employer Information Report (EEO-1) under federal law must submit a pay data report to the DFEH for the prior calendar year (Reporting Year). The report must include:

  1. The number of employees by race, ethnicity, and sex for the following 10 job categories, established by creating a “snapshot” that counts all individuals in each job category by race, ethnicity, and sex, employed during a single pay period of the employer’s choice between October 1 and December 31 of the “Reporting Year.”
    1. Executive or senior level officials and managers.
    2. First or mid-level officials and managers.
    3. Professionals.
    4. Technicians.
    5. Sales workers.
    6. Administrative support workers.
    7. Craft workers.
    8. Operatives.
    9. Laborers and helpers.
    10. Service workers.
  2. The number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands the U.S. Bureau of Labor Statistics uses in the Occupational Employment Statistics survey, established by calculating the total earnings shown on the IRS Form W-2 for each employee in the “snapshot” for the entire Reporting Year.
  3. The total number of hours worked by each employee counted in each pay band during the “Reporting Year.”
  4. The employer’s North American Industry Classification System (NAICS) code.

An employer complies with the new law by submitting an EEO-1 Report that contains the same or substantially similar pay information. Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees. All employers must provide the data in a format that allows the DFEH to search and sort the information using readily available software. Employers may, but are not required to, provide clarifying remarks concerning the information in the report.

The DFEH may seek an order requiring an employer to comply with these requirements and shall be entitled to recover the costs associated with seeking the order for compliance.

Reports Shared with the DLSE

The DFEH must make the reports available to the Division of Labor Standards Enforcement (DLSE) upon request and maintain the data for at least 10 years. Both the DFEH and DLSE must keep the data confidential, except as necessary for administrative enforcement or through the normal rules of discovery in a civil action.

Please contact your Baker McKenzie employment attorney for more.

On August 8, 2020, a New York federal district judge struck down a significant portion of the DOL’s “joint employer” rule, meaning certain employers may be more likely to be deemed “joint employers” and exposed to liability for employee wage and hour violations under the FLSA. The “joint employer” final rule, which was issued by the DOL in January 2020, imposed a four-factor test for deciding whether employers in “vertical” employment relationships (i.e., when workers for a staffing company or other intermediary are contracted to another entity) are joint employers under the FLSA.

Continue Reading Are You A Joint Employer Now? Part of DOL’s “Joint Employer” Final Rule Struck Down

With special thanks to Amy Greer and Jennifer Klass for contributing to this post.

COVID-19 was officially declared a pandemic in the US on March 13, 2020. Yet, even now, as we are over six months in to the COVID-19 pandemic crisis in the US, employers still continue to face challenges when navigating the sometimes daily changes in health and safety orders, updates from federal agencies, court decisions, and the proliferation of lawsuits. One of the key decision points for many employers is when to reopen, what should drive that decision, the legal risk of “getting it wrong” and how to mitigate that risk. Unlike retailers and restaurants, companies in the financial industry have largely avoided shutting down operations. However, that does not mean they have fully reopened. Where does the financial industry stand in its reopening? What should financial services companies be concerned about in terms of COVID-19 related guidance and recommendations, legal claims by employees, and how can companies mitigate these claims? What are specific COVID-19 related compliance issues unique to investment advisors and broker-dealers? We share our insights below.

Continue Reading For Financial Industry Employers During the Pandemic, “Risk” Takes on a Different Meaning

On September 3, 2020, the DOL sent a revised proposed rule regarding paid leave under the Families First Coronavirus Response Act (FFCRA) to the Office of Management and Budget for its review, according to an OMB posting. Though the OMB posting does not disclose the proposed rule’s contents, it is widely believed that the DOL issued the proposed rule in response to a recent federal district court decision striking down several provisions of the DOL’s existing final rule on the FFCRA.

In early August, after a challenge by the State of New York, Judge J. Paul Oetken of the US District Court for the Southern District of New York vacated the DOL’s existing rule to the extent it requires an employee to secure employer consent for intermittent leave-which may be an urgent issue now for employers as employees try to work around remote students’ schedules. The judge also vacated three other provisions of the DOL’s final rule: the work-availability requirement, the definition of “health care provider,” and the requirement that documentation be provided to the employer before the employee takes leave.

In the underlying litigation, the plaintiff State of New York did not seek a nationwide injunction, and the district court left the scope of its decision undefined, creating confusion as employers and employees who aren’t otherwise subject to New York law wondered if and how the order changed the application of the DOL’s final rule to them. The DOL’s revised rule may help to resolve some of that confusion.

The DOL can release the rule once it has been cleared by the OMB’s Office of Information and Regulatory Affairs. Follow us for updates, and for help navigating this or other employment issues, contact your Baker McKenzie employment attorney.

As predicted, on Friday, California Governor Newsom signed AB 2257 into law. The most significant changes are expanding the exemptions to AB 5’s coverage, that is, widening the range of occupations that will be held to an earlier standard for determining employment status. The new law takes effect immediately. For our coverage of AB 2257, click here.

Note that AB 5 is still being challenged in court by several large gig economy companies. Several are backing a November ballot initiative, Proposition 22, that would exempt app-based drivers from the new law.