Coronavirus

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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

Employers must pay for all hours they know or “have reason to believe” employees worked. But can employers simply rely on teleworking employees to report all of their hours worked, or must they instead investigate whether their employees have accurately reported their work time? With the huge increase in teleworking since the start of the COVID-19 pandemic, this question should be top-of-mind for employers.

On August 24, 2020, the US Department of Labor issued Field Assistance Bulletin No. 2020-5 (FAB) to clarify an employer’s obligations in determining whether teleworking employees have accurately reported their work time. In short, the employer is not required to comb through every cell phone or computer login record to look for unreported work time that the employer neither knew of nor had reason to believe had been worked. As long as the employer provides employees with reasonable time-reporting procedures and does not otherwise impede or discourage reporting, its failure to compensate employees for unreported and unknown hours of work is not an FLSA violation. The FAB and some key takeaways for employers are summarized below.Continue Reading A “Reason to Believe”: DOL Says the Obligation to Determine Remote Employees’ Hours of Work is “Not Boundless”

As the pandemic necessitates continued physical distancing, tech companies worldwide have turned to remote working to ensure the stability of their businesses. This episode of TMT Talk explores the working-from-home phenomenon from a data privacy, tax, and employment standpoint. Join Kate Alexander, Michael Brewer, Michiel Kloes, and Flavia Rebello as they share…

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

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates,…

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

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates,…

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

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates,…

The latest wrinkle for employers managing employees in the time of COVID-19 relates to employee travel. Many employers are coming to us asking how to navigate the patchwork of US state and local quarantine restrictions and / or recommendations for persons who travel to hotspots and then have to quarantine when they return home.

Questions abound, including whether employers can just test employees for COVID-19 to avoid a 14-day quarantine period, and whether employers have to pay employees to follow a quarantine order when their employees voluntarily travel to a hotspot location. We provide background and answer those questions below.Continue Reading Navigating Employee Travel in a Maze of State and Local Quarantine Orders and Travel Advisories

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

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates,…

Many schools across the US are not welcoming students back for full-time in-person learning in the fall. On August 5, 2020, after Chicago Public Schools announced it would begin the academic year remotely in September, New York City became the last remaining major school system in the country to even try to offer in-person classes this fall. Proposed plans for schools that aren’t fully reopening range from full remote learning to hybrid models, where students are in school only half a day or several days a week coupled with a remote learning component from home. Either way, employers are likely to find themselves inundated with requests from parents of school-age children for continued work from home arrangements or other work-schedule flexibility. In our Q&A below, we have highlighted issues employers may want to keep in mind as employees with school-age children try to navigate a school year with its own “novel” aspects.

1.  Are employers legally obligated to provide any sort of leave for employees who have to stay home with their children if schools don’t fully reopen?

It depends. If the employer is a “covered employer” under the federal Families First Coronavirus Response Act (FFCRA), employees may be eligible for paid leave under the FFCRA. The FFCRA was enacted to provide employees with COVID-19 related paid leave. Covered employers under the FFCRA (generally, private sector employers who have fewer than 500 employees at the time the leave request is made) are required to provide eligible employees with partially paid child care leave for certain COVID-19-related reasons, including if the child’s school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.

Does virtual learning count as a “closed or unavailable” school for purposes of the FFCRA? Though the DOL guidance and FFCRA regulations have not spoken directly on this topic, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” The focus on “physical location” signals that if the school building is closed to students and students are required to learn remotely, the school is “closed” for purposes of the FFCRA.

The FFCRA imposes two federal leave obligations on employers – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA).

  • Under the EPSLA:
    • An eligible employee may take up to two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work or telework for reasons including to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19. Pay is capped at $200 per day and $2,000 in the aggregate.
  • Under the EFMLEA:
    • An eligible employee may take up to twelve weeks of “expanded” FMLA leave when unable to work or telework due to a need for leave to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
    • The first two weeks of EFMLEA leave are unpaid. An eligible employee may use paid sick leave under the EPSLA or other accrued paid leave under the employer’s leave policies to receive pay for those two weeks.
    • An eligible employee may take up to an additional 10 weeks of paid EFMLEA leave at two-thirds the employee’s regular rate of pay, based on the number of hours the employee would be normally scheduled to work those days. Pay is capped at $200 per day and $10,000 in the aggregate.

In addition, state and local leave laws may apply, many of which either provide additional leave or state that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason for an employee to take leave.Continue Reading Back to School or Back to Home? Handling Leave Requests from Employees with School-Age Children

Employees are the backbone of any supply chain operator. As such, upholding fundamental labor standards and protecting worker rights is a complex undertaking. Further, COVID-19 has introduced additional complexities regarding employee safety and remote work. The following are some considerations to help employers navigate the global framework of ever-evolving laws that touch the supply chain.

Modern Slavery

One of the major priorities for an employer in the supply chain industry is to avoid and prevent forced labor. Globally, millions are thought to be in trapped in forced labor. Many of these victims are linked to the supply chains of the international businesses supplying our goods and services. According to the Walk Free Foundation’s Global Slavery Index, published with input from the United Nations’ International Labor Organization and the International Organization for Migration (IOM), as of 2016, about 40.3 million men, women and children were trapped in modern slavery, including 24.9 million people who were victims of forced labor in global supply chains. Slavery can exist in all stages of the supply chain, from the picking of raw materials such as cocoa or cotton, to manufacturing goods such as mobile phones or garments, and at later stages of shipping and delivery to consumers.

To combat this human rights issue, several governments, on the global and U.S. federal and state levels, have passed laws to prevent human trafficking and require companies to ensure that they are not using forced labor:

  • In the United States, the Trafficking Victims Protection Act makes human trafficking a federal crime, allows victims to sue traffickers; expands the Racketeering Influenced Corrupt Organization (RICO) Act’s list of crimes to include human trafficking, provides deportation protections for victims and their families, requires annual reports to Congress on efforts to prevent human trafficking, requires the government to notify all applicants for work and education visas about workers’ rights in the US and screen all unaccompanied immigrant children. Section 307 of the Tariff Act of 1930 prohibits the importation of goods mined, produced or manufactured, wholly or in part, in any foreign country by forced labor, including convict labor, forced child labor and indentured labor. Regulations promulgated by Customs and Border Protection (CBP) allow for issuing withhold release orders, requiring detention of goods at ports of entry when CBP agents reasonably believe that an importer is attempting to enter goods made with forced labor.
  • Further, California enacted the California Transparency in Supply Chains Act of 2010, under which companies with over $100 million in gross sales who do business in California must disclose on their websites any efforts taken to eradicate human trafficking from their supply chains.

Continue Reading Employment Considerations in the Global Supply Chain