We are pleased to share a recent Wall Street Journal article, Companies Grapple With Questions About Covid-19 Vaccine Mandate, with quotes from Robin Samuel. This article discusses the challenges and questions companies face when implementing the Biden administration’s Covid-19 vaccine mandate.
No Surprise: DOL Withdraws the Trump Administration’s Independent Contractor Rule
On May 5, 2021, the US Department of Labor (DOL) announced the withdrawal of the previous administration’s independent contractor rule, effective May 6, 2021. The DOL has not proposed any regulatory guidance to replace the rule, leaving employers with no clear guidance on worker classification under the FLSA.
The withdrawal is no surprise. The DOL…
The DOL Proposes to Nix the Trump Administration’s Joint Employer and Independent Contractor Rules
The Department of Labor (DOL) has proposed to put the final nail in the coffin on two Trump era rules under the Fair Labor Standards Act (FLSA) that were favorable to employers. On March 12, 2021, the DOL’s Wage and Hour Division published in the Federal Register both a proposed rule to rescind the Trump administration’s rule on joint employer status under the FLSA and a proposed rule to withdraw the Trump administration’s rule on independent contractor status under the FLSA. In both cases, the DOL is seeking public comments for 30 days (until April 11, 2021). Neither of these proposed rules comes as a surprise to those keeping tabs on the Biden administration’s agenda, but the DOL has not proposed any new guidance, leaving employers wondering what comes next.
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Biden DOL Signals Change to Joint Employer Rule
The US Department of Labor is developing a new regulation on joint employment under the FLSA, a possible first step towards reversing the Trump administration’s business-friendly rule on the joint employer standard.
First Public Notice of Possible New Regulation
On February 23, the White House Office of Information and Regulatory Affairs (OIRA) posted on its…
New DOL Final Rule On Independent Contractors Is (Likely) No More
The DOL’s just-issued final rule on employee vs. independent contractor classifications under the FLSA seems likely to be reversed. On January 20, the White House issued a memorandum to the heads of all executive departments and agencies ordering them to halt all non-emergency rulemaking and regulatory activity issued under the previous administration pending review by…
DOL Guidance on Electronic Posting of Federally-Required Notices
While most employers transitioned large segments of their workforces to remote work over the course of the past year, many also questioned how to satisfy various posting requirements when their workforce is at home. Fortunately, in late December, the Department of Labor (DOL) issued guidance on how employers can use virtual means to distribute and maintain the various posters required by federal employment laws.
By way of reminder, several federal laws, including the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA) require employers to post a notice of rights in a conspicuous location. Typically — and pre-pandemic — employers met the notice requirements by placing posters on bulletin boards in well-trafficked locations such as break rooms or lobbies. But with the increase in remote work, many employers used company email and intranets as a workaround to notify employees of their rights. Now, employers have guidance to ensure their practices are compliant.…
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Are You A Joint Employer Now? Part of DOL’s “Joint Employer” Final Rule Struck Down
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.
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A “Reason to Believe”: DOL Says the Obligation to Determine Remote Employees’ Hours of Work is “Not Boundless”
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.…
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New Q&As, New Streamlined Forms, and an RFI: the Department of Labor Publishes More COVID-19 Guidance and Seeks Public Comment on the FMLA
On July 20, 2020, the Wage and Hour Division of the US Department of Labor (DOL) published additional COVID-19 guidance in the form of a Q&A addressing Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Families First Coronavirus Relief Act (FFCRA) issues arising when employers and employees return to work.
A few days before, on July 17, the DOL published streamlined optional-use forms for employer and employee notification and certification obligations under the FMLA and separately asked the public to comment on the FMLA and its regulations in a Request for Information (RFI). The additional guidance and forms should help employers navigate FMLA leave and employee wage and hour issues during COVID-19. And employers now have the opportunity to share their thoughts on the FMLA and its implementing regulations with the DOL. We provide more insight into the DOL’s recent activity below.…
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Employee Testing for COVID-19: What Works Now for Your Worksite?
With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.
1. Can I check my employees’ temperatures before they enter the workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?
Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.
A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.
In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.