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Originally published in Thomson Reuters Practical Law 

Customer-Facing Employee Safety

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In the somewhat-near future, US employers actually may be able to replace face coverings, social distancing markers, plexiglass barriers and Zoom calls with face-to-face interaction and handshakes. At least two COVID-19 vaccines are expected to be issued Emergency Use Authorizations (EUA) by the FDA before the end of 2020, following closely behind the footsteps of the UK, which began vaccinations on December 8, 2020.

While this is good news for the country, the change won’t be felt immediately for most US employers. On December 1, a Centers for Disease Control and Prevention (CDC) panel advised that the first vaccine doses should go to health-care workers and long-term care facility residents. The next group up is reportedly other “high risk” groups: bus drivers, factory workers, teachers, older people and people with underlying conditions. At this point, widespread availability of COVID-19 vaccines is not expected until spring or summer of 2021. So, what should US employers whose workforce may not be eligible for vaccinations until later in the year be doing now to prepare?Continue Reading Coronavirus Vaccines are Coming in the US: What Should US Employers Do Next?

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

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The following states extended their state-wide orders and/or the duration of the current phase of their reopening plans: Georgia,

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Ahead of President-Elect Biden’s inauguration in January, employers have a preview of what is likely to come in the form of stronger union and employee rights. On February 6, 2020, the House of Representatives passed the Protecting the Right to Organize Act of 2019 (commonly known as the “PRO Act”), which contains ambitious changes to the current labor landscape. Changes include expanding the scope of joint employer under the National Labor Relations Act (NLRA), narrowing the definition of “supervisor” under the NLRA, expanding the right to strike to include secondary boycotts among other strikes, and providing additional avenues for workers to participate in collective or class actions. While the Senate has not acted on the bill since it was passed by the House, employers would do well to keep an eye on the revival of the PRO Act or any similar legislation. As an update to our recent blogpost on the PRO Act (here), we highlight two changes below that threaten employers if the PRO Act becomes law.

Banning Class Action Waiver in Arbitration Agreements

The PRO Act amends the NLRA to prohibit any employer attempt to execute or enforce any agreement whereby an employee promises not to pursue any class or collective actions. Notably, this provision in effect would overrule the Supreme Court’s decision in Epic Systems Corporation v. Lewis, 138 S. Ct. 1612 (2018). The Epic Systems Court held that an arbitration agreement waiving the right to proceed collectively under the Fair Labor Standards Act (FLSA) is enforceable, subject to generally applicable contract defenses, such as fraud, unconscionability, or duress. Moreover, the Court held that a class action waiver in an arbitration agreement did not violate employees’ rights under the NLRA. In contrast, the PRO Act’s amendments to the NLRA specifically provide that notwithstanding the Federal Arbitration Act (the federal statute authorizing arbitration agreements), an employer’s attempt to enforce class action waivers in an arbitration agreement would be an unfair labor practice under the NLRA.Continue Reading PRO Act Likely to Impact Employment Litigation

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

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The following states extended their state-wide orders and/or the duration of the current phase of their reopening plans: Florida,

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Non-union employers historically have been little concerned by labor unrest. They will be in for a rude awakening if the Protecting the Right to Organize Act (PRO Act) is signed into law during a Biden administration. The sweeping rewrite of the National Labor Relations Act (NLRA) occasioned by the PRO Act has serious ramifications for union represented workforces as well. The PRO Act would remove the existing ban on secondary strikes, and remove the ban on recognitional strikes lasting over 30 days. The PRO Act would also legalize the intermittent strike and the partial strike. Additionally, the PRO Act bans the permanent replacement of strikers and prohibits terminating employees who engage in strikes. Below, we discuss several ways the passage of the PRO Act would change the labor landscape.
Continue Reading PRO Act Likely to Bring Labor Unrest to Main Street

Special thanks to Matthew Gorman, Stephanie MacIntosh and Ginger Partee

In part one of our global video series on employee mobility in the current environment, our attorneys discuss the challenges of employee travel into and out of the US and Canada during the upcoming holiday season. We cover immigration complications due to COVID, including…

After the fastest reported increase in coronavirus cases since the start of the pandemic- with new infections doubling in the past 10 days-California Governor Newsom “sound[ed] the alarm,” announcing on November 16 that 40 counties are moving in the wrong direction under the state’s reopening plan. Twenty-eight counties moved into the state’s most restrictive purple tier under California’s Blueprint for a Safer Economy, signifying that the coronavirus is “widespread.” Now, 41 of the state’s 58 counties are purple, a stark contrast from only 13 purple tier counties last week.

Several Bay Area and Southern California counties are affected:

  • Alameda, Contra Costa, Santa Clara, Napa and Solano counties are reverting to the purple tier, while San Francisco, Marin and San Mateo counties are stepping back into the second-most restrictive red tier (indicating “substantial” virus spread).
  • Orange and Ventura counties-which improved to red in September and October, respectively-are retreating to purple, joining Los Angeles, Orange, Riverside, Ventura, Santa Barbara, and San Bernardino counties in the purple tier.

California employers and employees are already feeling the effects. Purple status severely limits indoor activity, including:

  • Restricting capacity at retail establishments and malls (open indoors at 25% capacity);
  • Moving fitness centers, family entertainment, and movie theaters to outdoor only;
  • Limiting restaurants and wineries to limited outdoor-only service;
  • Closing bars and breweries;
  • Requiring schools to remain online only; and
  • Requiring non-essential offices to work remotely.

With 94% of the state’s population now in the purple tier, talk of curfews, and restrictions being one step away from the stay-at-home orders that swept the US in March, the scaled back reopening undoubtedly will have devastating economic impacts on businesses and their employees.Continue Reading California “Sounds the Alarm,” Stepping Back into Purple and Issuing a Travel Advisory

Parties before the National Labor Relations Board (“NLRB” or the “Board”) often wonder whether it is worthwhile to appeal adverse rulings or respond when favorable rulings are received. Two recent appellate court decisions demonstrate the value of sticking with an argument from start to finish.

A Winning Formula

First, in Davidson Hotel Company v. NLRB (D.C. Cir. 2020), the D.C. Circuit recently took the highly unusual step of rejecting an NLRB determination as to the appropriate unit for bargaining at a small, full-service hotel in Chicago. For context, the NLRB had determined that the Davidson Hotel’s employees should be segregated into three separate bargaining units: a unit of front desk employees, a unit of housekeeping employees, and a unit of food and beverage employees. The union petitioned the Board to certify a single unit of housekeeping employees and food and beverage employees.

The Board’s Regional Director decided that a unit consisting of the housekeeping and the food and beverage employees was not an appropriate unit because it did not include the front desk employees, and he dismissed the union’s petition for an election. The Regional Director reached his decision by applying the NLRB’s “community of interest” test, under which the NLRB examines: (1) whether employees in the proposed unit have sufficient commonality in working conditions and job duties (among other factors) such that bargaining as a collective group is possible; and (2) whether employees in the unit have such distinctive interests from those who are excluded-here, the front desk employees-such that they should bargain separately. In his order dismissing the union’s initial petition for a single bargaining unit of housekeeping and food and beverage employees, the Regional Director decided that the unit did not have distinctive interests from the front desk workers, but he hinted that two separate units (one for housekeeping and another for food and beverage) might be appropriate.

Following his cue, the union promptly filed two petitions seeking one election in the housekeeping unit and a second election in the food and beverage service unit. Again, the union did not seek to represent the front desk employees. This time, the Regional Director found that the community of interest test was satisfied and he certified the two units. When an election was held, the union prevailed in both units.Continue Reading A Tale of Two Appeals: Recent Appellate NLRB Decisions Show the Value of Sticking with an Argument