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Caroline Burnett

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Caroline Burnett is a Knowledge Lawyer in Baker McKenzie’s North America Employment & Compensation Group. Caroline is passionate about analyzing trends in US and global employment law and developing innovative solutions to help multinationals stay ahead of the curve. Prior to joining Baker McKenzie in 2016, she had a broad employment law practice at a full-service, national firm. Caroline holds a J.D. from the University of San Francisco School of Law (2008) and a B.A. from Brown University (2002).

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Wary of wage and hour class actions, many employers have been grappling with whether and how to compensate employees for activities related to COVID-19. After nearly two years of guessing, on January 20, 2022, the US Department of Labor (DOL) posted Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA),” on its website. The next day, and with no explanation, Fact Sheet #84 disappeared.

Before it disappeared, Fact Sheet #84 addressed the compensability of time spent undergoing those COVID-19 activities with reference to the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS). Given that the OSHA ETS had been stayed just a week earlier by the US Supreme Court and then was subsequently withdrawn by OSHA on January 26, Fact Sheet #84’s sudden disappearance is perhaps not surprising. Nevertheless, employers should keep their eyes peeled for an updated Fact Sheet #84 that addresses compensability of testing and vaccination time without references to the OSHA ETS, especially since the advice in the now withdrawn Fact Sheet #84 is in line with other prior DOL advice on compensable time for employer-required testing and medical procedures under the FLSA.

What Fact Sheet #84 Said Before It Was Withdrawn

The guidance in Fact Sheet #84 distinguished between testing and vaccination that occurs during regular work hours and after regular hours:

Activities that occur during normal working hours

  • Under the FLSA, employer-required activities during normal working hours are compensable, unless the activity falls within one of the exceptions stated in 29 C.F.R. Part 785 (e.g., bona fide meal breaks and off-duty time).
  • Employees must be paid for time they spend going to, waiting for, and receiving medical attention required by the employer or on the employer’s premises during normal working hours-including COVID-19 related medical attention. Therefore, if an employer requires an employee to engage in COVID-19 activities (such as receiving a COVID-19 vaccine dose, taking a COVID-19 test, or undergoing a COVID-19 health screening or temperature check) during the employee’s normal working hours, the time is compensable time-regardless of where the activity occurs.

Continue Reading Compensability of COVID-related Activities | The DOL May Have Weighed In to Help Employers Avoid Class Actions

With special thanks to our data privacy colleagues Jonathan Tam and Helena Engfeldt for their contributions.

It’s increasingly common for employers to use social media during the hiring process. The temptation is obvious — there’s a wealth of potentially useful information about applicants available online. It’s not unreasonable to wish to use social media to understand a prospective employee’s professional qualifications and skills to determine whether they fit with the criteria for the position. It’s no wonder that a recent survey from The Harris Poll finds that seventy-one percent of US hiring decision-makers agree that looking at candidates’ social media profiles is an effective way to screen applicants. Furthermore, 70% believe employers should screen all applicants’ social media profiles, while the majority (67%) say they use social networking sites to research potential job candidates.

Despite the potential benefits, this sleuthing causes significant heart burn for employment and privacy lawyers and HR professionals. While social media can be a fruitful way to find and recruit candidates, a minefield of legal risks appear when companies use social media during the screening process.

Potential Risks

  • Discrimination! Federal, state and local anti-discrimination laws prohibit discrimination in hiring based on a prospective employee’s protected class. The danger of researching applicants using social media is that you may become aware that the applicant belongs to a protected category – something that through the general application process you otherwise would be unaware of. And, you can’t put the genie back in the bottle. If a recruiter or hiring manager has accessed this data, it is difficult to prove that they were not influenced by it in their hiring decision.

Continue Reading Guardrails For Using Social Media During The Hiring Process

Special thanks to Guest Contributor Harry Valetk.

In early May, private sector employers in New York will face new disclosure requirements for electronic monitoring of employees.  Beginning May 7, 2022, New York will join Connecticut and Delaware among the states that now require employers to provide written notice to new hires who are subject to electronic monitoring.  These new disclosure requirements come after Governor Kathy Hochul signed into law amendments to Civil Rights Chapter 6, Article 5, Section 52-C*2.

Here’s what New York employers need to know now about the new law:

Who is covered under the law? All private employers with a place of business in New York regardless of size. “Employer” is defined as any individual, corporation, partnership, firm, or association with a place of business in the state (not including the state or any political subdivision of the state).

What does the law require?  In practice, the law requires employers to (1) provide employees with a notice of electronic monitoring, (2) obtain proof of acknowledgement, and (3) prominently post the notice for all to see.Continue Reading New York’s New Electronic Monitoring Disclosure Law Requires Action Before May

As we previously reported, at the end of last year, the New York city council passed a bill to require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York…

On January 13, 2022, the Supreme Court issued two opinions in which the Court (1) blocked enforcement of the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (OSHA ETS) and (2) allowed enforcement of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for healthcare workers at Medicare and Medicaid covered facilities.

While the federal contractor vaccination mandate (Contractor Mandate) was not the subject of those cases, the Supreme Court’s decisions hint at its future–and it’s grim.

The Contractor Mandate is Currently Stayed

The Contractor Mandate is currently stayed by multiple district courts. And the 6th Circuit and the 11th Circuit have both declined to lift those stays. There are two more appeals pending in the 5th and 8th Circuits. Resolution of these cases will take months. In the meantime, the federal government cannot enforce the Contractor Mandate. Therefore, the likeliest option is that the Supreme Court simply lets the various Contractor Mandate cases run their course.

However, there’s always a chance the Supreme Court decides to intervene and hear appeals on the stays – as it did with the OSHA ETS and CMS vaccine mandate. If this happens, the Contractor Mandate is in trouble. Here’s why.

The OSHA Opinion (NFIB v. OSHA): OSHA Is Not Authorized to Regulate Public Health

First, an overview of the Supreme Court’s OSHA opinion. On January 13, 2022, the conservative majority of Supreme Court ruled that the parties challenging the ETS are likely to succeed on the merits of their claim that OSHA lacked statutory authority to impose the ETS. The majority held that while OSHA is empowered by statute to regulate workplace safety standards and occupational hazards, it has not been authorized to regulate “public health standards” and “the hazards of daily life” more broadly.

The Court acknowledged that the pandemic is a risk that occurs in many workplaces, but distinguished COVID-19 from the typical occupational hazard because it has spread everywhere “that people gather.” The Court characterized COVID-19 as a “kind of universal risk” that is no different from the “day-to-day dangers that all face from crime, air pollution or any number of communicable diseases.” The Court concluded that permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while working would significantly expand OSHA’s regulatory purview.

The Court said that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” After reviewing the statutory text, the Court found that the Occupational Safety and Health Act (OSH Act) does not clearly authorize OSHA to regulate public health through the ETS. The Court further noted that OSHA has “never before adopted a broad public health regulation…addressing a threat that is untethered…from the workplace.” Put simply, the Court decided that the ETS is not “what the agency was built for.”Continue Reading What Does the Supreme Court’s Stay of the OSHA ETS Mean for the Federal Contractor Vaccine Mandate? Don’t Count On It Surviving Judicial Review.

California has always kept employers on their toes when it comes to changing employment laws. This year is no exception. Here is our roundup of the top 10 developments California employers need to know. (And scroll down to see what’s on the horizon!)

  1. Minimum Wage Increases

Effective January 1, 2022, the California state minimum wage increased to $15.00 per hour ($14.00 per hour for employers with 25 or fewer employees). As a result, the minimum monthly salary for California exempt employees increased to $5,200, or $62,400 on an annual basis (which is two times the state minimum wage for full-time employment).

For computer software employees, their minimum hourly rate of pay increased to $50.00 and the minimum monthly salary increased to $8,679.16 ($104,149.81 annually).  And for licensed physicians and surgeons, the minimum hourly rate of pay increased to $91.07 .

Some counties and cities have imposed their own higher minimum wage rates, including Los Angeles, where a $15 minimum wage for all employers took effect in July 2021. The following local minimum wages took effect on January 1, 2022, regardless of employer size:Continue Reading Top 10 California Employment Law Updates for 2022

On December 15, 2021, the New York City Council approved a bill that will require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York City. The Mayor has until January…

To mitigate against a 47% increase in the seven-day average COVID-19 case rate and a 14% increase in hospitalizations, Governor Gavin Newsom announced the return of an indoor mask mandate — which will apply irrespective of vaccine status in many locations — starting December 15 and lasting until January 15. California is implementing this change because of the rapid spread of the Omicron variant and increased travel and mixing of households during the holiday season.

So, just as things were starting to relax a bit in some parts of the state, the California Department of Public Health mask mandate once again tightens up face covering requirements for California employers. What do California employers need to know now?

Who & Where: A number of California counties — including Los Angeles, Ventura, Sacramento, and most of the San Francisco Bay Area – already have their own indoor mask mandates that were implemented in the summer and have no end dates. The new mandate does not supersede these existing orders, and thus will primarily change things for employers in San Diego County, Orange County, the Inland Empire, swaths of the Central Valley, and rural Northern California.

What & When: California employers must comply with the new order by requiring both employees and customers to wear masks in all indoor public settings, irrespective of vaccine status, from December 15, 2021 to January 15, 2021.

In addition to masking, the state will now require those without proof of vaccination attending events with more than 1,000 people to show proof of a negative COVID-19 test within one day. The previous guidelines required a test within 72 hours. The state will also recommend those who travel in or out of California get tested for COVID-19 within three to five days.

What else are employers asking?

Some employers have questioned whether the mandate covers office settings where workers are 100% vaccinated. The answer is: “it depends.”

On Tuesday afternoon, the CDPH clarified that the new indoor mask mandate only applies to local jurisdictions that do not already have an existing mask requirement in place as of December 13, 2021. Thus, for example, because San Francisco already has an indoor mask mandate that allows stable cohorts of 100% vaccinated people to forego masks in indoor settings like workspaces and gyms, the CDPH clarification enables employers in San Francisco to continue allowing their fully vaccinated stable cohorts to go without masks if they otherwise meet the requirements of the San Francisco health order. (In the Bay Area, Alameda, Contra Costa, Marin and Sonoma counties have adopted similar exemptions and thus the same analysis applies.) Note that some counties and cities with mask mandates do not permit vaccinated persons to forgo masks indoors, and in such locations, the local order applies, but vaccinated employees must still wear masks.Continue Reading Breaking News – Mask Up California! New Statewide Mandate Effective December 15

This year New York employers have had to scramble to keep up with many new employment laws, and next year promises more of the same. The latest: New York City Mayor Bill de Blasio’s December 6 mandate that private sector employers require COVID-19 vaccines for their workers in NYC. If it survives expected legal challenges and takes effect December 27 (Happy Holidays!), the rule will be the broadest mandate of any state or large city in the US. From minimum wage increases, to regulations on the use of artificial intelligence tools in employee recruitment, to notice requirements for electronic employee monitoring, to New York’s fulsome response to COVID-19 through the HERO Act—private sector employers in New York have a laundry list of changes to implement and prepare for.

Below we highlight the 10 major employment law changes and updates that businesses need to know.

  1. New York City Vaccine Mandate To Hit All Private Employers December 27

By the end of the month, all in-person private sector New York City employees must have at least one dose of a COVID-19 vaccine, according to an announcement by Mayor de Blasio. The mandate, which will take the form of an order issued by the NYC Department of Health and Mental Hygiene, will apply to nearly 184,000 businesses and will not be limited to businesses in certain industries or based on company size. The mandate will most likely parallel the city worker mandate in that employers will, in certain instances, be permitted to make reasonable accommodations to mandatory vaccination policies for employees with legitimate religious or medical reasons, but will not permit any testing options in lieu of the vaccine. The mandate will not apply to fully remote employees or those who are alone at a worksite. The city has not yet announced whether employers will face inspections or fines if they fail to follow the mandate, but it intends to release implementation and enforcement guidelines by December 15, 2021.

The new mandate is the first of its kind on a local level while the federal vaccine rule for private employers with 100 or more employees remains on pause amid several legal challenges. The city mandate is also set to go into effect only days before the New York City mayoral transition, leaving future enforcement of the mandate uncertain.

 Employer Takeaways

  • Stay abreast of further city announcements concerning additional guidance on the vaccine mandate.
  • Operate under the assumption that the vaccine mandate will take effect December 27, 2021, and notify employees of the new mandate so unvaccinated employees have sufficient time to get vaccinated.
  • Implement procedures to verify applicable in-person employees vaccination status and prepare to collect vaccination records as confidential medical information.
  • Prepare to establish a mandatory vaccination policy and a process for employees to request exemptions, to the extent your business has not already done so.
  • Begin considering operational contingency plans if your business expects that a significant portion of the workforce will not get vaccinated.

Continue Reading Top 10 New York Employment Law Updates For 2021/2022

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