Welcome to Turkmenistan: Joint Employment Rules Rescinded, Leaving Massive Crater in FLSA Regulations

By Todd Lebowitz on July 29, 2021 Posted in Wage and Hour

No visit to Turkmenistan would be complete without a visit to the Darvaza Crater, more commonly known as the Door to Hell. This massive crater formed decades ago after a Soviet drilling rig collapsed. Roughly 40 years ago, the Soviets lit the crater on fire to burn off the methane. But Turkmenistan has some of the largest gas reserves in the world, which meant you couldn’t just make the gas go away.

The fire still burns today, and the massive, fiery hole is an impressive sight.

A massive hole can also describe what the Department of Labor’s Wage and Hour Division (WHD) just created. Continue Reading

New NYC Law Requires Two-Step Background Checks and Expands List of Pre-Adverse Action Factors

By Priya Amin and Todd Lebowitz on July 26, 2021 Posted in Background Checks

The New York City Fair Chance Act (FCA) amendments expand protections for individuals with a criminal record and impose new obligations on employers that conduct background checks. The changes take effect July 29, 2021.

The amendments require most background checks to be conducted in two steps,[1] provide “complete protection” for non-convictions and add specific FCA factors that must be evaluated for pending criminal charges. Continue Reading

Pennsylvania Employers Beware: The State’s Highest Court Expands the Bounds of Compensable Time

By Christian White and Carlos Torrejon on July 22, 2021 Posted in Wage and Hour

In a 5-2 decision, the Pennsylvania Supreme Court held that employers in the state must now pay employees for time spent on their premises when waiting for – and undergoing – required security searches.

The court explained that this period of time, even if insubstantial, is compensable because it qualifies as “hours worked” under the Pennsylvania Minimum Wage Act (PMWA):

“Hours worked … includes time during which an employee is required by the employer to be on the premises of the employer ….” Continue Reading

Update on the NY HERO Act: What the NY COVID-19 Worker Protection Law Means for Employers

By Justin Guilfoyle on July 20, 2021 Posted in New York

On May 5, 2021, Governor Cuomo signed the New York Health and Essential Rights Act (NY HERO Act) into law. As discussed in an earlier BakerHostetler post, this law mandates extensive new workplace health and safety protections in response to the COVID-19 pandemic. Pursuant to the NY HERO Act’s directives, the New York State Department of Labor (NYSDOL), in conjunction with the New York State Department of Health (NYSDOH), developed an Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious diseases.

Employers are permitted to either adopt the applicable policy template and prevention plan provided by the NYSDOL or establish an alternative plan that meets or exceeds the standard plan’s minimum requirements. Should an employer elect to create its own airborne infectious disease exposure prevention plan, it must do so with employee participation in nonunionized workplaces and in consultation with collective bargaining representatives where there is a unionized workforce. An employer’s alternative prevention plan is required to incorporate industry-specific hazards and workplace considerations. Whether utilizing a model prevention plan provided by the NYSDOL or a customized prevention plan, employers must adopt said plan within 30 days of July 6, 2021, i.e., by Aug. 5, 2021. Continue Reading

Colorado Supreme Court Resolves ‘Use-It-or-Lose-It’ Conundrum in Decision Providing Long-Awaited Clarity for Employers

By Jacob A. Bruner and Nathan A. Schacht on July 16, 2021 Posted in Colorado

On June 14, 2021, the Colorado Supreme Court issued its highly anticipated decision in Nieto v. Clark’s Market, ruling that employers must pay out an employee’s earned but unused vacation pay upon separation of employment, even where an agreement or policy authorizing forfeiture of such pay exists. The impact of the ruling is significant, as so-called use-it-or-lose-it vacation policies, which have become commonplace for Colorado employers, are now prohibited as a matter of law under Colorado’s Wage Claim Act (the Act). The ruling also marks the end of an otherwise contentious legal and administrative battle involving the courts, interested parties and the Colorado Department of Labor and Employment (CDLE) regarding the propriety of use-it-or-lose-it policies, providing much-needed clarity to employers regarding their payment obligations.

Background on Colorado Wage Claim Act

As background, Section 8-4-101(14) of the Act defines “wages” and “compensation,” which must be paid out at separation from employment, to include “vacation pay earned in accordance with the terms of any agreement.” The Act further provides that if “an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” Continue Reading

Will the Supreme Court’s Decision Overturning California Union Access Regulation Be a Bonanza for Nonagricultural Employers?

By Todd Dawson and Christian White on July 13, 2021 Posted in California

In a significant victory for California agricultural employers, the Supreme Court recently held that California’s regulation requiring agricultural companies to permit union organizers on their property was an unconstitutional taking of private property without just compensation. Cedar Point Nursery v. Hassid, Case No. 20-107. The regulation permitted union organizers to remain on company property for up to three hours per day, 120 days per year.

The district and appellate courts had concluded that the regulation did not amount to a taking of property because it did not allow the general public to access the property on a permanent and/or continuous basis. The Supreme Court, however, held that the regulation amounted to the taking of an easement over the employers’ property on behalf of labor union organizers. Though acknowledging that the easement did not allow permanent occupation, the Court found that the intermittent and temporary nature of the easement was only relevant to the amount of compensation that would be owed as a result of the taking. Continue Reading

The Devil Is In the Details: Department of Labor Publishes Tipped Employee Proposed Final Rule

By Caroline M. Landt and David Grant on June 23, 2021 Posted in DOL, Wage and Hour

The U.S. Department of Labor (DOL) published its Notice of Proposed Rule Making (NPRM) regarding tipped employees. Rejecting the Trump administration’s proposed rules governing tip-credit employees performing non-tipped duties, the DOL proposes to adopt what is known as the 80/20 rule. The devil is in the details, and the DOL now limits the 20 percent of allowable non-tipped duties to only those duties that “directly support[] the tip-producing work.” This change is significant for employers because the DOL has narrowly defined what duties directly support tip-producing work. Additionally, if the tipped employee performs such work continuously for 30 minutes or more, full minimum wage must be paid for that time. Continue Reading

Texas Court Affirms Employers’ Freedom to Require COVID-19 Vaccine for Employees

By Paul Knettel and Peter Stuhldreher on June 14, 2021 Posted in Texas

COVID-19 has presented no shortage of legal questions for employers, from shutdowns and layoffs to when and how to reopen. And with COVID-19 vaccines now broadly available in the United States, some companies (especially those in high-risk environments like hospitals and nursing homes) face a new question: whether they can require COVID-19 vaccination as a condition of employment. On June 12, 2021, Judge Lynn Hughes in the United States District Court for the Southern District of Texas found that such a requirement was legally permissible in Jennifer Bridges v. Houston Methodist Hospital (Case No. 4:21-cv-01774).

In April 2021, Houston Methodist Hospital announced a policy requiring its employees to receive a COVID-19 vaccine and stated that it would terminate the employment of employees who did not timely receive a COVID-19 vaccine (subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs). Jennifer Bridges and 116 other employees sued to block this requirement of continued employment with Houston Methodist, arguing that it (1) constituted wrongful termination and (2) violated federal law. Continue Reading

OSHA Announces COVID-19 Emergency Temporary Standards for the Healthcare Industry

By James W. Seegers on June 10, 2021 Posted in OSHA

The Occupational Safety and Health Administration (OSHA) released Emergency Temporary Standards (ETS) for the health care industry on June 10, 2021. The ETS will apply to healthcare and healthcare support service workers with the goal of better protecting them from occupational exposure to COVID-19. This will include, among others, employees working in hospitals, nursing homes, assisted living facilities, and ambulatory care facilities. It will also include employees working as emergency responders (with private employers) and home healthcare workers.

What Is Required?
The ETS will require a health care industry employer with covered employees to conduct a hazard assessment and to prepare a written action plan for COVID-19 mitigation. The employers must also provide and ensure the use of requisite PPE (e.g., masks) and require proper social distancing (i.e., six feet) between workers (and erecting barriers if that is not possible). The ETS also requires covered employers to provide employees with paid time off in order to get vaccinated and to recover from any side effects. The ETS does, however, exempt fully vaccinated workers from the PPE and social distancing requirements in circumstances where there is no reasonable expectation that they will come in contact with anyone suspected or confirmed to have COVID-19.

When Must You Comply?
The ETS will take effect immediately upon its publication in the Federal Register. Employers will then have only 14 days within which to come into compliance with the majority of the requirements. OSHA has stated, however, that for the time being it will take into consideration an employer’s good faith efforts to comply with the ETS when determining whether to issue a citation for any violation.

How Long Will It Be In Effect?
The ETS would likely stay in effect until or unless it is superseded by a permanent standard (which can take approximately six months). Until that time, OSHA has stated that it will update the ETS, when necessary, to align with the Center for Disease Control and Prevention guidelines and to respond to changes in the COVID-19 pandemic.

Texas Passes Bill Prohibiting Businesses From Requiring Vaccine Passports for Customers, But Not Employees

By Justin Caresia, Peter Stuhldreher and Ashlee Grant on June 10, 2021 Posted in Texas

On June 7, 2021, Texas Gov. Greg Abbott continued to emphasize that Texas is open for business by signing into law S.B. 968, which prohibits Texas businesses from requiring customers to provide documentation of COVID-19 vaccination — including through the use of “vaccine passports” — to gain access to or receive service from the business. The law went into effect immediately and specifically prohibits Texas businesses from requiring that customers “provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business.” The penalty for failure to comply with the law may be significant, as Texas businesses that fail to comply are not eligible to receive state grants or enter into contracts with the state.

Texas businesses may be wondering what effect S.B. 968 may have on their ability to require employees to be vaccinated or to utilize “vaccine passports” for return of employees to work. As noted above, the language of the bill limits its applicability to customers and does not address the employee-employer relationship. Moreover, the bill expressly provides that it may not be construed as “restrict[ing] a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health.”

On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on the COVID-19 vaccine and explained that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.” The updated EEOC guidance also confirmed that the laws do not prohibit employers from requiring employees to bring in documentation or other confirmation of vaccination status, so long as the information is kept confidential in accordance with the ADA. Thus, while Texas businesses may not require proof of vaccination from customers, Texas employers may still require employees to get vaccinated and provide proof of vaccination before returning to work, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.