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The COVID-19 pandemic raises challenging issues for employers, particularly those that have multiple locations, provide a variety of services, and employ a global workforce that may travel routinely for business.

With increasing quarantine and other lock-down requirements appearing across the globe, what should employers be doing now to support the health and safety of their workforces?

An employer’s first priority is to protect the health and safety of its workforce. Recognize that this is unlikely to be a one-time occurrence. Being prepared now will allow employers to iterate in the future.

(1) Understand employer obligations in each affected jurisdiction (which will change).

  • Review applicable government health alerts and requirements for reporting.
  • Review local laws on employee privacy, association, potential for discrimination and leave/benefit/wage & hour entitlements. Remember that the balance between privacy and public health is achieved differently in different countries, but as viruses spread, those restrictions are often relaxed. For instance, primarily due to data privacy laws, employers in most of the EU generally may not notify health authorities that an employee has been infected.
  • Coordinate internally to develop employee communications and plans. Frequent communications with employees and their families is critical. Keeping in contact with official or governmental bodies such as the US State Department or the British Foreign and Commonwealth Office (FCO) is essential to ensure the latest updates are available and to ensure employees are aware of any national contingency plans.

Continue Reading Pandemic Pause — Are you taking the right actions to protect your workplace?

With signs that the virus is peaking in the US, and with some state Shelter-in-Place Orders scheduled to be lifted in the coming weeks, employers are turning their attention to planning for how best to bring employees back to work.

As with the initial outbreak, US employers can look to other corners of the world…

With our thanks to Chris Guldberg for this post. 

The financial fallout from the outbreak of COVID-19 has unfortunately forced employers to turn to layoffs and furloughs. Many employers facing these decisions are looking for cost effective ways to mitigate the financial impact on affected employees. A supplemental unemployment benefit plan (“SUB Plan”) may be one way to assist employees while generating some cost savings for the company.

A SUB Plan is a unique type of severance benefit plan that permits employers to supplement state unemployment benefits on an employment tax-favored basis. The employer can make up the difference between an employee’s normal wages and state unemployment benefits and, unlike traditional severance, payments under a SUB Plan are treated as a benefit rather than wages and are thus not subject to FICA or FUTA for the employer or employee.Continue Reading An Alternative to Traditional Severance: SUB Plans

The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, first published in 2009, to specifically address the COVID-19 pandemic. The updated guidance is here.

Significantly, the EEOC confirms that the COVID-19 pandemic meets the “direct threat” standard for employee medical examinations and disability…

Layoffs, reduced schedules, sick leave, and telecommuting—these are just a few of the issues that employers are navigating as they quickly adapt to the effects of the global pandemic. While moving full speed seems to be the only way to keep up with the rapidly-evolving landscape, companies should take a moment to ensure that they…

Last week, in Kim v. Reins International California, Inc., No. S246911, after more than two years on review and extensive briefing by amicus curiae, the California Supreme Court unanimously resolved an issue of first impression concerning the Private Attorneys General Act (PAGA): whether settlement of individual Labor Code claims extinguishes PAGA standing.

California’s Labor Code contains a number of provisions designed to protect the health, safety, and compensation of workers. Among those laws, PAGA provides a mechanism for employees to enforce the Labor Code as the state’s designated proxy. In particular, PAGA authorizes “aggrieved employees” to pursue civil penalties on behalf of the state. Those penalties differ from statutory damages or other penalties an employee may recover individually for alleged Labor Code violations because relief under PAGA is intended to benefit the general public, not the party bringing the action.Continue Reading Employee Remains “Aggrieved” Under PAGA Even After Settling Individual Claims

On February 10, 2020, United States District Judge Dolly M. Gee denied a motion for a preliminary injunction to enjoin California from enforcing Assembly Bill 5 (AB 5) against Postmates Inc. and Uber Technologies, Inc. Judge Gee concluded: “Plaintiffs have not shown serious questions going to the merits — the critical factor in determining whether to issue a preliminary injunction — and, though company plaintiffs have shown some measure of likelihood of irreparable harm, the balance of equities and the public interest weigh in favor of permitting the state to enforce this legislation.”
Continue Reading Court Denies Preliminary Injunction To Halt California’s New Statutory “ABC Test” As To Gig Economy Companies And Drivers

As multinational companies compete for highly skilled employees around the world, they are often confronted with a deceptively simple question: Do they impose a noncompetition agreement on their employees?

This article is part one of a two-part article addressing how multinational companies can use a noncompetition agreement on their highly skilled employees to protect their…

Last week, the US Equal Employment Opportunity Commission (EEOC) released a comprehensive breakdown of the workplace discrimination charges received in 2019. The report shows that fiscal year 2019 continued the trend of declining numbers of pending charges. Interestingly, the number of charges filed in 2019 is the lowest intake in any fiscal year since at least 1997. While there may be any number of explanations for the decrease, one possibility is that employees are turning to expanding state anti-discrimination laws and more active state administrative agencies rather than the EEOC.
Continue Reading While EEOC Report Shows Overall Decrease In Charges, Retaliation Continues To Be Top Charge

The Seventh Circuit significantly narrowed the EEOC’s broad interpretation of the American with Disabilities Act (ADA) last month. The court held that the ADA does not cover discrimination based on a future impairment.

The Seventh Circuit determined that the “regarded as having” prong of the ADA does not extend to applicants who are rejected due to an employer’s concerns about future disabilities. Shell v. Burlington N. Santa Fe Ry Co. The Seventh Circuit joins the Eighth, Ninth, Tenth, and Eleventh Circuits in holding that the present tense “having” in the ADA does not include the future tense “will have.” The facts here involved an obese applicant, and not an applicant with an existing predisposition, so its practical impact may be narrower than at first blush.Continue Reading From The Seventh Circuit: Future Disabilities Not Protected Under The ADA