EEOC Releases Technical Assistance Documents Regarding Opioid Addiction and the ADA

On August 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing opioid addiction and employment. The EEOC defines opioids to include prescription drugs such as codeine, morphine, oxycodone, hydrocodone, meperidine, buprenorphine and methadone, as well as illegal drugs like heroin.

Employee Guidance

The first document is guidance for employees and explains that the Americans with Disabilities Act (ADA) may apply to employees “who are not engaged in the current illegal use of drugs and are qualified for employment.” The employee guidance clarifies that employees who are using opioids legally, are in treatment for opioid addiction or have recovered from their addiction are protected from discrimination and may be entitled to a reasonable accommodation under the ADA. If an employee is not disqualified by a federal law and his or her opioid use is legal (for instance, if taken to treat a medical condition), an employer cannot automatically disqualify an employee from a job because of the opioid use without consideration of whether there is a means for the employee to safely and effectively perform the job. In addition, opioid addiction (or opioid use disorder) is itself a diagnosable medical condition that can be an ADA-covered disability. Continue Reading

New York Southern District Vacates Several Provisions of the DOL’s Final Rule on the FFCRA

On August 3, 2020, the Southern District of New York issued a decision vacating certain provisions of the Department of Labor’s (DOL) Final Rule on the Families First Coronavirus Response Act (FFCRA). This ruling will be difficult and problematic for many employers and will create substantial uncertainty in the workplace.

The FFCRA, which was enacted in March, obligates employers with fewer than 500 employees to provide both emergency family leave and sick leave to certain employees who are unable to work because of the COVID-19 pandemic. On April 1, 2020, only weeks after the statute was passed, the DOL issued a Final Rule implementing the FFCRA, which the state of New York soon challenged in federal district court. That Court has now stricken four provisions of the DOL’s Final Rule. These provisions include a requirement that work be available to an employee to receive benefits, the definition of a “healthcare provider” exempt from some requirements, a requirement that the employer consent to the taking of intermittent leave and a requirement that documentation be provided prior to taking leave. The remainder of the Final Rule will continue to operate in the absence of these provisions. Continue Reading

NLRB: Being Abusive Is Not Protected Union Activity

Under the National Labor Relations Act (NLRA), a union member cannot be disciplined for forming or joining unions, bargaining collectively, or engaging in other activities for the purpose of collective bargaining, such as striking. But this protection does not immunize a union member from discipline for any type of inappropriate conduct while engaging in protected activity. The NLRB previously allowed union members significant leeway to engage in inappropriate conduct while exercising their protected rights, concluding that the NLRA’s protections “would be meaningless were we not to take into account the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses.”

In line with this approach of affording leeway, various approaches were taken to determine whether an employee could be disciplined for certain conduct. These approaches varied depending on the circumstances in which the conduct occurred, in ascending order of leeway: (1) workplace discussions with management; (2) social media posts and coworker discussions; and (3) the picket line. Continue Reading

Second Circuit Says No California Anti-SLAPP Motions in Federal Court

The Second Circuit Court of Appeals has split with the Ninth Circuit Court of Appeals and concluded that California’s statute to avoid strategic lawsuits against public participation (anti-SLAPP) does not apply in federal court. The initial impact of the decision is limited, as it would not have binding effect on California district courts.  This decision could result in the Ninth Circuit reversing its position, however, which would then become a significant consideration for employers deciding whether to remove a claim to federal court, as discrimination and retaliation claims can be the subject of anti-SLAPP motions.

Serving as somewhat of a hybrid motion to dismiss/motion for summary judgment, California’s anti-SLAPP statute provides defendants a procedural device to obtain early dismissal of a plaintiff’s claim that targets conduct implicating the defendant’s constitutional rights of speech and petition. If the defendant proves that the complaint targets such “protected” conduct, then the plaintiff must make a showing sufficient to defeat a motion to dismiss or a motion for summary judgment. If the plaintiff cannot, the claim is dismissed. Continue Reading

AB 2457: A Potential Helping Hand for California Employers in a Time of Need

With the sudden outbreak of COVID-19 forcing businesses to shut their doors for months, coupled with resulting furloughs and layoffs, California employers could use a helping hand. Assemblywoman Melissa Melendez (R-Lake Elsinore) has proposed new legislation to the California Legislature that could lend a helping hand to employers, especially smaller employers grappling with the impact of the COVID-19 pandemic. Assembly Bill 2457 (the Bill) seeks to alleviate penalties and taxes for employers that may have misclassified workers as independent contractors. This is important, especially in light of the Legislature’s tightening of its employee/independent contractor misclassification test via the passage of Assembly Bill 5 (AB 5), now codified at California Labor Code Section 2750.3(a)(1). Continue Reading

Wage and Hour Division Issues Two Employer-Friendly Rules

This week, the Wage and Hour Division announced the issuance of two rules interpreting the Fair Labor Standards Act (FLSA) that modernize its application and lessen the burden of overtime calculations for certain employers. First, the agency has eliminated archaic distinctions hindering use of the exception for retail or service establishments under Section 7(i) of the statute. Under Section 7(i), certain employees who receive the majority of their compensation on a commission basis at a rate of 1 and ½ times the federal minimum wage in a representative period do not have to be paid additional overtime compensation if they work more than 40 hours in a particular workweek. Second, the Wage and Hour Division, effective 60 days from publicizing them in the Federal Register, has finalized its regulations for calculating overtime compensation for salaried, nonexempt employees whose base, straight-time compensation encompasses all the hours worked in a workweek and who receive additional compensation such as bonuses, commissions and certain premium payments. The agency has now confirmed that the inclusion of these additional payments will not foreclose an employer from the “half-time” basis of overtime calculation contemplated by the so-called fluctuating workweek proviso delineated in 29 C.F.R. §778.114. Continue Reading

New Jersey’s Expansion of Family Leave for COVID-19

On April 14, 2020, Gov. Phil Murphy signed legislation (S2374) to expand the New Jersey Family Leave Act (NJFLA). The basic idea behind it is to ensure that eligible employees who need to take time off to care for a family member during the COVID-19 outbreak (and other similar health epidemics) can take up to 12 weeks of unpaid family leave in any 24-month period without losing their jobs.

Under the expanded New Jersey law, eligible employees may take leave from work during a state of emergency declared by the governor or indicated by the commissioner of health or other public health authority, an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease in order to (a) provide in-home care or treatment of a child because the child’s school or place of care is closed by order of a public official due to the epidemic or other public health emergency or (b) to care for a quarantined family member under certain circumstances. Continue Reading

New York Passes Statewide Paid Sick Leave Law

Just weeks after New York state implemented an Emergency COVID-19 Paid Sick Leave Law, late last week, New York state passed a statewide paid sick leave (State PSL) law as part of its fiscal year 2020-2021 budget. The new law, which adds Section 196-b to the New York Labor Law, requires all New York state employers to provide a minimum of 40 hours of paid or unpaid job-protected sick leave or 56 paid hours, depending on the size and/or net income of the employer. Although the accrual provisions of the law go into effect 180 days after enactment (on or about Sept. 30, 2020), employers can require employees to wait until Jan. 1, 2021, to begin using their sick leave benefits. The details of the State PSL law are below.

Amount of Required State PSL

At a minimum, employers must provide the following amounts of sick leave:

  • Employers with four or fewer employees in any calendar year and a net income of $1 million or less in the previous tax year are required to provide each employee with at least 40 hours of unpaid sick leave each calendar year.
  • Employers with four or fewer employees in any calendar year and a net income of more than $1 million in the previous tax year are required to provide each employee with at least 40 hours of paid sick leave each calendar year.
  • Employers with between five and 99 employees in any calendar year are required to provide each employee with at least 40 hours of paid sick leave each calendar year.
  • Employers with 100 or more employees in any calendar year are required to provide each employee with at least 56 hours of paid sick leave each calendar year.

Employers may provide additional amounts of sick leave beyond what is required. Continue Reading

New York State Passes Statewide Paid Sick Leave Related to COVID-19

Last night, Governor Andrew Cuomo of New York signed a bill into law that provides statewide paid sick leave related to the COVID-19 pandemic to employees in order “to address the immediate need of employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation” issued by New York state, the Department of Health, a local board of health, or any government entity authorized to issue such order due to COVID-19. This law is effective immediately. The legislation previously included a comprehensive statewide paid sick leave proposal unrelated to COVID-19, but that has been tabled for later.

Here’s what you should know.

Key Provisions

  • The law applies to public and private employees who are subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the Department of Health, a local board of health, or any governmental entity authorized to issue such order due to COVID-19 (a “Quarantine Order”).
  • The employee protections differ based on the size of the employer (as of Jan. 1, 2020) and its net worth (from the prior tax year).
  • Employers with 10 or fewer employees subject to a Quarantine Order shall provide employees with unpaid sick leave until the termination of any quarantine. During this time, the employee shall be eligible for paid family leave and disability benefits.
  • Employers with 11-99 employees and employers with 10 or fewer employees and a net income greater than $1 million (in the previous tax year) must provide employees subject to a Quarantine Order with at least five days of paid sick leave and unpaid leave until the termination of any Quarantine Order. After five days of paid sick leave, the employee shall be eligible for Paid Family Leave and disability benefits (short-term disability) for the duration of any Quarantine Order.
  • Employers with 100 or more employees, as well as all public employers (regardless of number of employees), must provide at least 14 days of paid sick leave and guarantee job protection for the duration of the Quarantine Order
  • The law also contains an anti-retaliation provision. Upon return to work following leave taken under this law, employees must be restored to their prior position under the same pay and terms and conditions of employment and cannot be discriminated or retaliated against for taking leave under the law.
  • The New York Commissioner of Labor has the authority to adopt regulations and issue guidance on this new law, which may include standards for the use, payment and employee eligibility of sick leave. There is no guidance yet.
  • A Quarantine Order is proof of disability or need to take family leave.

Continue Reading

Gator in Your Basement? Nope, That’s Just the NLRB Sharpening Its Joint Employer Test

“Be careful as you go down the stairs, officer. An alligator lives in my basement.”

Police in Madison Township, Ohio, last week found a 5-foot gator penned in the basement of a family home. The family said that “Alli” was a pet they’ve raised for 25 years, since purchasing him as an adorable little tot at a reptile shop. (My, how they grow.)

The family accepted responsibility and avoided legal liability because they allowed to police to remove the animal.

A larger battle over responsibility and legal liability was also decided last week, but this battle was over the meaning of “joint employment” under the National Labor Relations Act (NLRA).

Here’s a quick Q&A to get you up to speed on the new regulation.

What happened?

On February 26, 2020, the National Labor Relations Board (NLRB) published a new regulation that changes the rules for determining whether a business is a joint employer under the NLRA.

What do you mean by joint employer?

When one business hires another business to provide services, the business providing the services is the primary employer. We see this often in staffing agency arrangements. The staffing agency is the primary employer. The primary employer is responsible for treating its workers as W-2 employees and doing all the things an employer is supposed to do.

If the business receiving the services exercises sufficient control over the workers, it can be deemed a “joint employer” of those workers. The workers would have two employers simultaneously.

Why should I care if I am a joint employer under the NLRA?

Being a joint employer creates rights and obligations under the NLRA on issues such as collective bargaining, strike activity, and unfair labor practice liability:

  • If the employees are represented by a union, the joint employer must participate in collective bargaining over their terms and conditions of employment.
  • Picketing directed at a joint employer that would otherwise be secondary and unlawful is primary and lawful.
  • Each business comprising the joint employer may be found jointly and severally liable for the other’s unfair labor practices.

Does the new rule make it harder or easier to be deemed a joint employer?

Much harder. The new rule significantly narrows the circumstances when a business can be deemed a joint employer.

What’s the new test?

Under the new regulation, a business can only be a joint employer of another employer’s employees only if it exercises “substantial direct and immediate control” over the “essential terms and conditions” of the workers’ employment.

What are essential terms and conditions?

Wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.

Can you give me an example of how that works?

No.

Please?

Ok. I was just messing with you.

Let’s look at wages. You retain a staffing agency. You negotiate a cost-plus arrangement. You negotiate the rate you’ll pay the staffing agency per worker per hour, but the staffing agency determines the rate of pay each worker will receive. That’s not substantial and direct control because the staffing agency sets the wages of the worker.

Let’s consider discharge. You want to remove a staffing agency worker from the project. You instruct the agency to remove the worker. That’s not substantial control over whether the worker is discharged from employment. It’s up to the agency what to do with the worker next — reassign the worker, discharge the worker, tar and feather, etc.

How does this affect background checks and other terms in my contract with the primary employer?

Commonplace and routine clauses, like requiring the agency to perform background checks, are not evidence of joint employment.

In a dispute over whether there’s joint employment, who has the burden of proof?

The party asserting that an entity is a joint employer has the burden of proof.

Is the NLRB’s new joint employer regulation the same as the DOL’s new joint employer regulation?

Of course not. That would make this way too easy, and you wouldn’t need your lawyers as much.

In January 2020, the Department of Labor published a new regulation that sets up a new test for determining whether an entity is a joint employer under the Fair Labor Standards Act (FLSA). There are similarities in the tests. Both tests require the actual exercise of control for there to be joint employment. Previously, the mere right to exercise control was enough. But the tests are different.

You can read more about the DOL test here.

So now there are two tests for joint employment — one under the FLSA and one under the NLRA?

Ah, so naive. Who’s coming up with these questions, anyway?

Nope, there are lots of tests for determining who is a joint employer; and the tests differ based on which law we’re looking at — and based on who’s looking at it.

The DOL announced its new regulation for determining joint employer status under the FLSA, but unless you’re in a DOL audit, that doesn’t mean much. No court has adopted the new regulation yet, and we don’t know whether courts will defer to the regulation or disregard it. There will be litigation over whether the DOL has the right to redefine “joint employer” and limit the scope of a statute (the FLSA) passed by Congress.

The states have their own tests for determining joint employer status under state employment laws. Some states might defer to the regulations, but many states won’t.

But the NLRB regulation is here to stay, right?

Maybe, maybe not. In late 2018, the D.C. Circuit Court of Appeals ruled that the NLRB has no right to redefine “joint employment,” since the question of whether someone is an employee under the NLRA is governed by the common law test of agency — essentially, a right to control test.

But the NLRB chose to disregard that decision and issued its new regulation anyway.

But how can the NLRB enforce a new regulation defining “joint employer” when a federal court has said it can’t do that?

Because the NLRB will just do it anyway. There are 12 federal circuit courts of appeal, and they often disagree. The NLRB has a longstanding practice of ignoring rulings by the federal courts of appeal, except as to the specific case and the specific parties before that specific court. The NLRB takes the position that it must follow rulings by the Supreme Court, not the federal circuit courts of appeal.

So what’s the real status of the new NLRB regulation?

The NLRB will apply this new regulation in all of its proceedings. The new regulation takes effect April 26, 2020, which is 60 days after its publication in the Federal Register.

If NLRB rulings are appealed to a court, it remains to be seen whether some courts will apply the new regulation. The D.C. Circuit Court of Appeals probably will not.

Is the new regulation permanent?

It’s intended to be. There are at least three ways it could be undone.

  • Future NLRB members with a more pro-worker orientation could enact a new regulation that changes the definition.
  • Congress could pass a statute that redefines joint employer status. The statute would override the regulation.
  • The Supreme Court could rule that the NLRB has no authority to create a joint employer test.

Until one of those three things happens, the new test will stick around for a while, like a pet alligator. The Board will apply the new test to NLRA issues.

What happened to the alligator?

It has been relocated to an animal sanctuary in Myrtle Beach, South Carolina. Despite its new residence, the gator was deemed ineligible to vote in last Saturday’s primaries.

Editor’s Note: For more information, tips, and developments on issues related to joint employment and independent contractor misclassification issues, follow Todd Lebowitz’s blog, at whoismyemployee.com

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