Anxious About Tort Liability? Ohio Enacts House Bill 606, ‘Good Samaritan Expansion Bill,’ to Limit Employer Liability for COVID-19 Exposure

By Teddy Webb on September 17, 2020 Posted in Civil Action Lawsuits

Ohio Gov. Mike DeWine signed HB 606 into law on Monday, Sept. 16, 2020. Known as the “Good Samaritan Expansion Bill,” the law protects employers, both private and public, from civil action lawsuits for damages stemming from COVID-19 exposure, except in reckless or wanton exposure cases. In relevant part, the new law reads:

SECTION 2. (A) No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought. Continue Reading

DOL Issues New Guidance on Several FFCRA Issues

By Greg Mersol on September 14, 2020 Posted in Department of Labor

Introduction

The Families First Coronavirus Response Act (FFCRA) was enacted just under six months ago in the wake of closings prompted by the then new coronavirus pandemic. As most employers know, the FFCRA created leave rights for many employees of employers with fewer than 500 employees for absences caused by the virus and its aftermath.

The FFCRA was itself a large and complicated bill, assembled in a remarkably short period of time, that borrowed aspects from the federal Fair Labor Standards Act and Family and Medical Leave Act (FMLA). Not surprisingly, the bill failed to answer a number of questions posed by employers and employees alike, and during the weeks that followed its enactment, the U.S. Department of Labor (DOL) issued scores of FAQs addressing many of those questions, and on April 1, 2020, only two weeks after the bill’s passage, it issued regulations that, for the most part, echoed the statements made in the FAQs. We have addressed many of those matters in this firm’s own FAQs about the FFCRA. Continue Reading

California Enacts COVID-19 Sick Leave for Workers

By Nancy Inesta and Joseph S. Persoff on September 11, 2020 Posted in California

Last week, California enacted a law, Assembly Bill (AB) 1867, providing supplemental COVID-19-related sick leave to food-sector workers and workers employed by a company with 500 or more employees nationwide. The law requires employers of such employees to provide sick leave – in addition to any other leave the employee may be entitled to – for the following three situations:

The worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
The worker is advised by a health care provider to self-quarantine or to self-isolate due to concerns related to COVID-19.
The worker is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Workers’ Compensation and Employer Liability in the Era of COVID-19

By Joel Griswold and Lindsay McCall on September 10, 2020 Posted in Workers' Compensation

With companies continuing to reopen for in-person operations amid the coronavirus (COVID-19) pandemic, many employers are left wondering if they could face increased liability related to employees contracting COVID-19 in the workplace. Liability related to contracting a virus in the workplace could take the form of a negligence action or a claim for workers’ compensation.

Typically, under state workers’ compensation laws, routine transmissible viruses such as the flu or common cold do not provide employees with a valid claim for workers’ compensation. Additionally, even if such diseases are covered by state workers’ compensation laws, employees generally have the burden of proving that their contraction of the virus arose out of and in the course of their employment. Given COVID-19’s transmissibility, this could be a challenging hurdle for employees. However, some states have introduced legislation that either lowers or shifts the burden of proof in workers’ compensation cases. Some of this new legislation is outlined below, but for a comprehensive look at workers’ compensation and employer liability in a particular state, contact the BakerHostetler COVID-19 Employment Issues Coronavirus Task Force. Continue Reading

Joint Employment Test Gets Muddied Again: Federal Court Rejects New DOL Test

By Todd Lebowitz on September 9, 2020 Posted in Department of Labor

Muddy Waters is how you want your blues, not how you want your laws.

A federal district judge in New York yesterday kicked up a lot of mud in an area of the law that had finally seen some clarity – the definition of “joint employment.” Now we’re back in the muck.

Yesterday’s ruling struck down the Department of Labor (DOL) regulation on “joint employment.” The DOL’s regulation, 29 CFR 791.1 to .3, took effect in March 2020, after a Notice and Comment Period that included 57,000 comments. The purpose of the DOL’s rule was to bring clarity to the meaning of “joint employment” under the Fair Labor Standards Act (FLSA). Before the rule, the meaning of “joint employment” had been a grime-filled slopfest.

Return to Work: What Employers Should Know About AB 1281, CCPA Notice Requirements and Recent Labor Law Guidance

By Alan L. Friel, Jeewon Serrato and Catrina Wang on September 8, 2020 Posted in California

While most privacy news and alerts have been focused on the collection and processing of customer data (see our earlier posts about interest-based advertising and the House Judiciary Committee’s Antitrust Hearing with Big Tech, for example), privacy issues related to data collected from employees and business-to-business (B2B) contacts increasingly are becoming a concern for businesses. As we have highlighted in the past, laws outside the U.S., like the EU General Data Protection Regulation (GDPR), have extraterritorial scope, and they provide equal protections to all natural persons, including customers, employees and B2B contacts. The California Consumer Privacy Act (CCPA) follows this global trend and defines “consumers” as California residents, thus providing the same level of rights to employees and B2B contacts who are California residents as well as customers. This article provides an overview of the latest legislative changes under the CCPA as they relate to company obligations concerning employee and B2B data, including exemptions, as well as practical tips for assessing when a company should reexamine employee and B2B privacy issues, including return-to-work (RTW) strategies. Continue Reading

Increased Union Activity in the COVID-19 Era

By Todd Dawson on September 2, 2020 Posted in National Labor Relations Board

With the COVID-19 pandemic continuing to dominate headlines and potential surges expected this fall and winter, safety issues are at the forefront of many employees’ minds. These issues encompass an array of subjects, including social distancing, hand-washing protocols, time off to care for ill family members or school-age children who are distance learning, layoffs/job security, continuation of health care benefits for furloughed employees, etc. Each of these issues presents a potential wedge that a union can attempt to drive between a nonunion employer and its employees. This danger is further exacerbated by the fact that most regional offices of the National Labor Relations Board are continuing to conduct elections by mail ballot, which generally tends to favor the union side.

So, what can a nonunion employer do to mitigate this risk? First and foremost, employers should understand that media coverage shapes the perception of employees concerning the state of the pandemic and the protocols that are effective in combating it. Continue Reading

DOL Issues Guidance on Employers’ Obligation to Pay Nonexempt Employees for Time Worked Remotely

By Fanny Ferdman on August 31, 2020 Posted in Department of Labor

Employers and employees alike have had much confusion around proper compensation when nonexempt employees work remotely – particularly in today’s time when many employees are teleworking and working crazy schedules due to COVID-19. Truth is, in today’s world of remote working (which is new for many of us), employers are dealing with various issues relating to nonexempt employees working off the clock, working unapproved overtime and/or performing unnecessary work while on the clock.

Fortunately, the U.S. Department of Labor shed some light on these issues. Indeed, it advised last week that employers must pay nonexempt employees for all hours worked remotely if they know about it or have reason to believe that the work was performed. Continue Reading

Exploring Potential Liability under Colorado’s Lawful Off-Duty Activity Statute in 2020

By Nathan A. Schacht and Jacob A. Bruner on August 28, 2020 Posted in Colorado

Today’s political and social climate has brought significant changes to the workplace. Employers are adapting to a remote workforce, COVID-19 regulations, political protests and the upcoming election. Regardless of whether political speech and activity in your workplace have already caused noticeable workforce fragmentation or provided challenges to your human resources and management teams, it is important that employers are aware of laws impacting employees’ ability to express their views in the workplace. This includes, as an example, the Colorado Lawful Off-Duty Activity Statute.

Like many other states, Colorado is a state that prevents an employer from terminating an employee for lawful off-duty activity, which could include political affiliation and activism. As a result, prudent employers should carefully analyze their policies and protocols related to discipline and potential employment terminations in this socially and politically active environment. Continue Reading

Reminder: Beginning Jan. 1, Colorado Employers Have Strict Requirements Under the Equal Pay for Equal Work Act

By Nathan A. Schacht and Jacob A. Bruner on August 26, 2020 Posted in Wage and Hour

As we reported in our blog post in June 2019, last year, Colorado started the process of tightening its protections for pay equity. The state’s Equal Pay for Equal Work Act (the Act), which was signed into law last year, takes effect on Jan. 1, 2021, and results in requirements that employers should immediately consider.

Background

The Act applies to all Colorado employers and contains provisions regarding pay equity. Under the Act, an employer may not “pay an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work.” Employers are also prohibited from requesting or using an applicant’s compensation history to determine salary. And employers are prohibited from retaliating against employees who share or refuse to share their compensation. Additionally, the Act requires employers to notify all employees of opportunities for promotions at the same time. Violation of the Act may result in significant fines, back pay and liquidated damages. Continue Reading