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Addressing union organizing in the workplace has bedeviled employers since the adoption of the National Labor Relations Act. The National Labor Relations Board has historically permitted employers to ban employees from soliciting co-workers during working time. No solicitation policies have been narrowed and refined over the years, as demonstrated by the Board’s holding in Essex International, Inc., 211 N.L.R.B. 749 (1974). Essex distinguished between policies that prohibit solicitation during “working time” (permissible) and those that prohibit solicitation during “working hours” (invalid).

In Wynn Las Vegas, LLC, 369 NLRB No. 91 issued last week, the NLRB broadened the definition of solicitation to include urging a co-worker to vote “yes.” The Wynn Las Vegas decision reverted to the Board’s traditional interpretation and acknowledged the NLRB’s failure to obtain court approval for its narrower meaning.


Continue Reading NLRB Broadens Definition of “Solicitation,” Expanding Conduct That May Be Deemed Unprotected

Not surprisingly, summer internships look a bit different this year. Some are cancelled outright, others cut short, and many are virtual. Amidst these changes, we know employers have more than a few questions . . .

Q. If my company is cancelling its planned summer internship, do we have to provide any cash compensation?

A. Not unless there is a contract in place to do so. Nonetheless, we’ve seen a number companies offer to pay a portion of the expected wages (and a few very generous employers have sought to pay the entire amount).

Q. And, if we want to pay our intern some amount for the lost opportunity, do we have to put them on the payroll?

A. Yes. The IRS takes the position that, from a tax perspective, paying any amount, in lieu of wages to a prospective employee who is never actually employed is nonetheless wage income subject to income tax withholding, social taxes, etc. Some employers are a little stumped by how they can set somebody up on the payroll just to make this one lonesome payment. But, it is doable. It requires some administrative tasks like getting the required federal and state withholding forms and setting the person up in the employer’s payroll system. For federal purposes, the required form is the Form W-4 that an employee fills out during onboarding for a new job, which form will require the employee to provide a social security number (or other taxpayer identification number) and other information needed for the payment to be properly reported on Form W-2 and withheld upon.


Continue Reading FAQs About Summer Internships During the Pandemic

The Department of Labor (DOL) issued final regulations establishing new safe harbors for the electronic delivery of required retirement plan disclosures under ERISA. As background, retirement plan administrators must deliver required disclosures using methods that are reasonably calculated to ensure actual receipt of documents by plan participants.

Under prior guidance from 2002, the DOL created

Due to the pandemic, employees in the US are working from home in unprecedented numbers. Some, particularly in tech, may be working from home through the end of the year, or even permanently! While working from home raises a myriad of issues (e.g., data privacy and security, health and safety, employee engagement, and more), this post focuses on expense reimbursements related to telecommuting. The trickiest areas are cell phones and internet given that employees are now working from home because they cannot go into the office, as opposed to perhaps at their convenience.

Reimbursement Obligations

There is no federal requirement to reimburse employees for business-related expenses. However, several states (including California, the District of Columbia, Illinois, Iowa, Massachusetts, Montana and New York) have legislation requiring reimbursement for necessary businesses expenses. For example, California Labor Code Section 2802(a) requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….” Failing to reimburse employees can lead to class or collective actions and quickly become incredibly burdensome for employers. Under California law, an employer that does not reimburse employees risks a lawsuit where the damages will include not just the unreimbursed expenses but the attorney’s fees incurred by the employee seeking reimbursement. The employee can also ask the Labor Commissioner to cite the employer or anyone acting on the employer’s behalf under Labor Code Section 2802(d). Where the practice is widespread (or just alleged to be) the claims can be brought on a class-wide basis.


Continue Reading Reimbursement Refresher: Cell Phone and Internet Expenses Related to Telecommuting in the US

Are you ready to protect employees at higher risk for severe illness from COVID-19 as you reopen? That’s a question the CDC asks in its recently-released guidance for employers considering reopening. And the EEOC recently issued three new Q&As in the “Return to Work” section of its technical assistance guidance for COVID-19, instructing employers on managing “high risk” employees in compliance with the Americans with Disabilities Act (ADA). The below Q&A provides direction for employers regarding “high risk” employees returning to the workplace and reasonable accommodations to help keep those employees safer at work.

What is my employee required to do to request a reasonable accommodation if the employee has a medical condition the CDC says could put the employee at higher risk for severe illness from COVID-19?

The employee (or the employee’s representative, such as the employee’s doctor) must let you know the employee (i) needs a work accommodation (ii) for a reason related to the medical condition. The request can be made in conversation or writing, and does not need to use the term “reasonable accommodation” or even reference the ADA. Therefore, to ensure you don’t unintentionally run afoul of the ADA by missing a request for a reasonable accommodation, we recommend you review every communication from an employee (or employee’s representative) stating that the employee has a medical condition requiring a change at work as one that may require a reasonable accommodation. It is also important to train managers to be aware of these requests and to immediately inform HR if an employee mentions needing a change at work because of a medical condition.


Continue Reading From Safer-at-Home to Safer-at-Work: the EEOC Issues Guidance to Help Reopening Employers Manage “High Risk” Employees

On May 6, 2020, Governor Newsom issued Executive Order N-62-20, creating a rebuttable presumption that an employee’s COVID-19-related illness arises out of employment for purposes of obtaining workers’ compensation benefits. This is not the first order of its kind; other states including Alaska, Michigan, Minnesota, Missouri, Utah, and Wisconsin, have imposed similar rebuttable presumptions. However, most of these jurisdictions have limited the rebuttable presumption to first responders. California’s order doesn’t.

At the federal level, House Democrats are looking to follow suit, proposing a similar presumption for certain federal workers under the Health and Economic Recovery Omnibus Emergency Solutions Act (the “HEROES Act”). If enacted as proposed, the HEROES Act would create a presumption that certain federal employees who contract COVID-19 did so in the course and scope of their employment if the employees have a risk of exposure to COVID-19 at work and on-the-job contact with patients, members of the public, or co-workers. A similar presumption would apply to certain maritime workers.  The House passed the HEROES Act by a vote of 208-199 on May 15, 2020, but tremendous opposition is expected when the bill reaches the Republican dominated Senate.

Is California’s order likely to stick?

It’s difficult to tell. California business owners are unhappy with the likely significant increase in workers’ compensation liabilities and the inequity of shifting the cost of employees’ COVID-19 illnesses to employers. Challenges to the California order would not be surprising.


Continue Reading Are You Sure You Contracted COVID-19 at Work? California Thinks So

With many thanks to Chris Guldberg for this post. 

On May 12, 2020, the IRS released Notice 2020-29 (the “Notice”) providing greater flexibility to make mid-year election changes under Code Section 125 cafeteria plans during 2020 with respect to employer-provided health coverage and health and dependent care flexible spending accounts (“FSAs”). The notice also provides additional time in which unused amounts in FSAs can be used to pay expenses and avoid forfeiture.

Mid-year Election Changes

As background, cafeteria plans are the vehicle that allow employees to elect to pay their share of benefit premium costs for certain welfare benefits (for example, the employee premium portion paid for medical coverage) on a pre-tax basis rather than paying for those costs on an after-tax basis. In general, employee cafeteria plan elections must be made prior to the first day of the plan year and cannot be changed during the plan year except for specific change in status type events permitted under the relevant regulations (for example, the birth of a child).


Continue Reading Increased Flexibility for Taxpayers in Section 125 Cafeteria Plans in Response to COVID-19

With many thanks to Chris Guldberg for this post. 

Employers considering COVID-19-related layoffs and RIFs right now should add one more item to their checklist of considerations: the possibility of inadvertently triggering a “partial termination” of their tax-qualified retirement plan.

Where plan participant numbers decrease substantially, the plan may incur what’s known as a “partial termination.” This is significant because, once triggered, the IRS requires the benefits of all “affected employees” be fully vested. Failure to provide such vesting could put the plan’s tax-qualified status at risk.


Continue Reading Beware — COVID-19 Layoffs May Trigger Liability for Partial Plan Terminations

We hope you found last week’s video chat series helpful and informative. Due to popular demand, 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.

This series

We are pleased to share our Shelter-in-Place / Reopening Tracker.

This document identifies the relevant state-wide shelter-in-place orders and their related expiration dates as well as the state-wide reopening plans, and whether local (county/municipal) orders also apply, in each of the 50 United States.

Please check back for updates throughout the pandemic.