DOL Amends FFCRA Regulations to Address Concerns Raised by Judge’s August 2020 Decision

Posted in coronavirus, Department of Labor, GT Alert, Labor, Labor & Employment

Following our earlier Alert on this topic, the Department of Labor (DOL) issued a revised rule in response to U.S. District Judge Paul Oetken’s August 2020 decision that nullified certain definitional aspects of the DOL’s Families First Coronavirus Response Act (FFCRA) regulations. The DOL’s revisions aim to clarify and address the Court’s concerns. These changes become effective Sept. 16, 2020. The FFCRA is still set to expire Dec. 31, 2020.

Read the full GT Alert, “DOL Amends FFCRA Regulations to Address Concerns Raised by Judge’s August 2020 Decision.”

New York Federal Judge Strikes Down DOL ‘Joint Employer’ Rule

Posted in class action, Department of Labor, Federal Law, GT Alert, Labor, Labor & Employment, Litigation, Massachusetts, New York

On Sept. 8, 2020, a New York federal judge struck down substantial portions of the U.S. Department of Labor (DOL’s) joint employer final rule, which went into effect March 1, 2020.  As reported in a prior GT L&E blog, the DOL’s final rule announced a four-factor balancing test for determining joint-employer status when one employer “suffers, permits, or otherwise employs the employee to work, but another individual or entity simultaneously benefits from that work.”

Read the full GT Alert, “New York Federal Judge Strikes Down DOL ‘Joint Employer’ Rule.”

DOL Issues Guidance on Wage-and-Hour Obligations as Pandemic Increases Telework

Posted in class action, coronavirus, Department of Labor, earned wages, Employee Policies, Employment Agreement, GT Alert, Illinois, Labor, Labor & Employment, Litigation, Pennsylvania, Wage & Hour, wages

Prompted by telework arrangements that arose in response to the Coronavirus Disease 2019 (COVID-19) pandemic, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued a Bulletin addressing important work-from-home wage-and-hour considerations. The DOL’s Bulletin presents useful guidance for employers grappling with the challenges of managing working time and pay of employees forced into remote work arrangements by COVID-19. The Bulletin reaffirms the importance of clear timekeeping policies, procedures, and practices, and indicates that reviewing proper compensation for teleworking employees is on the DOL’s radar.

Read the full GT Alert, “DOL Issues Guidance on Wage-and-Hour Obligations as Pandemic Increases Telework.”

Impersonators Beware: Claim Preclusion of Copycat PAGA Lawsuits

Posted in California, California L&E Group, class action, GT Alert, Labor, Labor & Employment, Litigation

In August 2020, the California Court of Appeal issued two wins for California employers facing multiple simultaneous representative actions under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code § 2698 et seq.) in Robinson v. Southern Counties Oil Company and Starks v. Vortex Industries, Inc.

Read the full GT Alert, “Impersonators Beware: Claim Preclusion of Copycat PAGA Lawsuits.”

California Wine Country Pours Out Another Round of Paid Sick Leave Benefits

Posted in California, California L&E Group, coronavirus, Labor & Employment, Paid Leave

On August 18, 2020, Sonoma County joined the ranks of ten other California cities and counties that have enacted local supplemental paid sick leave ordinances related to COVID-19.1 The Board of Supervisors voted to approve the Ordinance2 as an urgency ordinance, meaning it became effective immediately and shall sunset on December 31, 2020. It will automatically be extended to align with any extensions of the federal Families First Coronavirus Response Act (“FFCRA”).

Covered Employers and Employees

Intended to act as a complement to the FFCRA (and cover those businesses otherwise excluded under the FFCRA), the Ordinance applies to employers with 500 or more employees nationwide, and extends benefits to any employee who has worked for an employer for more than two hours within the geographic boundaries of the unincorporated areas of Sonoma County.

Unlike the FFCRA, there is no hardship exception for employers of healthcare providers and emergency responders. Accordingly, such leave must be provided regardless of whether it creates an operational hardship to the employer.

Qualifying Reasons for Use of Paid Sick Leave

An employee who cannot work, or telework, may use the supplemental paid sick leave benefit for the following reasons:

  1. The employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to quarantine or isolation by federal, state or local order due to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee needs to care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID19, or has been advised by a health care provider to self-quarantine related to COVID-19, or is experiencing COVID 19 symptoms and is seeking a medical diagnosis; or
  5. The employee takes time off work to provide care for an individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation.

“Individual” for purposes of the Ordinance includes an employee’s immediate family member, a person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined, or whose senior care provider or whose school or childcare provider is closed or is unavailable in response to a public health or other public official’s recommendation. “Individual” does not include persons with whom the employee has no personal relationship.

An employee need only provide a written request for leave for a qualifying reason (including, but not limited to, via electronic mail and text) to be entitled to the supplemental paid sick leave benefit.

Amount of Paid Sick Leave Benefit

Full time employees who are normally scheduled to work 40 or more hours per week are entitled to receive up to 80 hours of supplemental paid sick leave. Part-time employees normally scheduled to work fewer than 40 hours per week are entitled to receive supplemental paid sick leave in an amount no greater than the employee’s average number of work hours in a two-week period, calculated over the past six months.

Supplemental paid sick leave must be paid out at the employee’s regular rate of pay, but may be capped at $511 per day, and $5,110 in total per employee.

An employer may not require an employee to use any other form of sick leave or paid or unpaid time off before the employee is permitted to use paid sick leave under the Ordinance.

The supplemental paid sick leave hours are in addition to any paid sick leave otherwise available under California’s paid sick leave law or an employer’s existing paid time off benefits (e.g., PTO, vacation, sick leave) provided before March 16, 2020.  Employers who already provide employees with adequate paid leave benefits may use such benefits as an offset to the Ordinance’s requirements. To the extent an employee has at least 80 hours of paid sick leave benefits accrued as of August 18, 2020, or at least 160 hours of accrued paid sick leave, PTO, and/or vacation combined, the obligation to provide benefits under the Ordinance shall be deemed satisfied. To the extent an employee’s accrual does not satisfy one of these requirements, the employer must furnish supplemental paid sick leave to account for the deficiency.

Documentation

Employers are not permitted to require employees to provide doctors’ notes or other supporting documentation to support a request for leave under the Ordinance, and may only take “reasonable measures” to confirm an employee’s eligibility for supplemental paid sick leave (such as requiring employees to identify the qualifying reason for the leave), consistent with the limitations set forth in the FFCRA and its corresponding regulations and guidance.  Employers are also prohibited from requiring employees to find a replacement as a condition of obtaining leave.

Notice, Recordkeeping Requirements, and Prohibition Against Retaliation

Employers are required to provide written notice to employees of their rights under the Ordinance by posting a notice, either in the workplace or on an intranet or app-based platform, or by distributing the notice via email, in both English and Spanish. Employers must maintain a record of each employee’s name, the hours worked, and pay rate for at least three years.

The Ordinance prohibits discrimination and retaliation against any employee for requesting to use or using supplemental paid sick leave benefits provided by the Ordinance, or for opposing any practice proscribed by the Ordinance, or otherwise enforcing or asserting his or her rights under the Ordinance.

With the growing patchwork of local COVID-19 related paid sick leave ordinances throughout the state of California, large employers may find it increasingly difficult to establish timely, uniform policies for workers. Employers should nevertheless take steps to promptly inform employees of their rights and benefits under such laws.


1 Currently, the City of Los Angeles, County of Los Angeles, Long Beach, San Francisco, Oakland, San Jose, County of San Mateo, Sacramento and Santa Rosa have enacted local ordinances. There is also a separate statewide Executive Order granting emergency paid sick leave to food sector workers.

2 The Ordinance is referred to as “An Urgency Ordinance of the Board of Supervisors of the County of Sonoma, State of California, to Establish Supplemental Paid Sick Leave Requirements for Certain Private Employers for COVID-19 Related Reasons.”

Department of Health and Human Services’ LGBTQ+ Discrimination Rule Blocked by Eastern District of New York

Posted in Discrimination, GT Alert, Litigation

On August 17, 2020, the Eastern District of New York granted the Plaintiffs’ request for a stay and a preliminary injunction precluding the U.S. Department of Health and Human Services (HHS) from implementing a recently issued final agency rule that would remove anti-discrimination provisions presently provided under the Affordable Care Act (ACA) for LGBTQ+ patients. (Walker v. Azar, E.D.N.Y., No. 1:20-cv-02834, Order 08/17/20). The Human Rights Campaign challenged the HHS rule on behalf of two transgender women, who sought a nationwide injunction to prevent its implementation. U.S. District Judge Frederic Block granted the request for stay and preliminary injunction the day before the rule was to go into effect.

Click here to read the full GT Alert, “Department of Health and Human Services’ LGBTQ+ Discrimination Rule Blocked by Eastern District of New York.”

California Wildfires Are Heating Up Employer Concerns

Posted in California, California L&E Group, coronavirus, Labor & Employment, OSHA

As employers continue to address the COVID-19 pandemic, they now face a new set of workforce challenges related to extreme weather and wildfires. Both are creating a challenging remote work environment due to: (1) recent evacuations; and (2) heat exposure risks linked to employees now forced to work in their homes with closed windows (and lack of proper air ventilation). Employers should consider preparing themselves for a further reduced workforce caused by such complications. Continue Reading

California Revamps its Reopening Criteria for Businesses and Activities

Posted in California, California L&E Group, coronavirus

On Friday, August 28, 2020, Governor Newsom unveiled the state’s new tiered system for identifying and reducing COVID-19 infection risks in each county. This new “blueprint” is aimed at reducing instances of COVID-19 by imposing revised criteria for both easing and tightening restrictions on the activities of California residents and businesses.

Under the new system, which goes into effect on Monday, August 31st and replaces the “County Monitoring List” approach, each county is assigned to one of four tiers – Minimal, Moderate, Substantial, or Widespread. These tiers are assigned based on the percentage of new daily cases and the percentages of positive tests. Continue Reading

The ‘Gaming’ of Pension Plan Actuarial Assumptions

Posted in Benefits, Compensation, Labor, Labor & Employment

Jeffrey D. Mamorsky authored a Lexis Practice Advisor article titled “The ‘Gaming’ of Pension Plan Actuarial Assumptions.”

Read the full article “The Gaming of Pension Plan Actuarial Assumptions.”

Collision: Collateral Effects of California’s Lawsuits Against Lyft and Uber

Posted in California, California L&E Group, Compensation, earned wages, Employee Policies, Employment Agreement, Labor, Labor & Employment, Legislation, Litigation, State Law, Wage & Hour, wage theft, wages

The California Labor Commissioner’s Office has challenged Uber and Lyft in two new state-backed lawsuits that allege that the companies have engaged in “wage theft” by misclassifying their drivers as independent contractors. Filed in Alameda County, the suits are the most recent effort to enforce A.B. 5, which arguably caused a sea change in the analysis governing whether a worker should be classified as an employee or independent contractor.

A.B. 5 codified the ABC Test, subject to a number of exceptions. In doing so, it directly impacted the business models of many gig-economy companies, like Uber and Lyft.  To comply with A.B. 5,  many of these emerging companies may have to reconfigure their business model and reclassify hundreds, if not thousands, of independent contractors as employees. Uber and Lyft balked and did not reclassify their workers.

In its lawsuits, the California Labor Commissioner seeks to prove that Uber and Lyft have misclassified their drivers as independent contractors under A.B. 5, based on the allegations that:

(a)  their drivers are not free from Uber and Lyft’s direction and control in how they perform their work insofar as the companies, among other things, regulate the drivers and types of cars that may be used, monitor and control driver performance through passenger feedback, and retain the right to terminate a driver’s tenure;

(b)  their drivers are engaged in Uber and Lyft’s usual course of business of providing on-demand rides, in contradiction of the companies’ position that they serve only as data brokers who use their app to connect potential drivers and passengers together; and

(c)  their drivers are not engaged in an established trade, occupation, or business independent from Uber and Lyft insofar as the drivers provide services and generate income only for the companies themselves, rather than their own independent businesses.

Should the California Labor Commissioner prevail, Uber and Lyft could be forced to reclassify their drivers as employees and could be liable for the lawsuits’ various alleged Labor Code violations, including those related to minimum wage, overtime, meal periods, rest periods, employment benefits, and unemployment insurance.

At the outset of the cases, the California Labor Commissioner also sought a preliminary injunction to force Uber and Lyft to reclassify their drivers as employees prior to any formal judgment determining that the companies had in fact violated A.B. 5. This month, the Court granted the injunction, commenting, “if the injunction the People seek will have far-reaching effects, they have only been exacerbated by Defendants’ prolonged and brazen refusal to comply with California law.” Uber and Lyft immediately requested that the Court stay the implementation of the injunction pending their appeal, which the Court declined to do.  Last week, however, a California Court of Appeal granted the companies an emergency stay of the lower court’s order, allowing Uber and Lyft time for their appeal. duress.

The lawsuits have also generated criticism from some drivers and public debate about potentially significant practical implications.  Uber and Lyft have threatened to cease operations in California.  Several drivers have also spoken out against the Labor Commissioners’ actions, raising concerns about how the lawsuit might impact both driver freedoms and employability. These questions were not ignored by the lower court’s preliminary injunction ruling, noting that, “[t]he Court does not take lightly Defendants’ showing that a preliminary injunction may also have an adverse effect on some of their drivers, many of whom desire the flexibility to continue working as they have in the past, and may have commitments that make it difficult if not impossible for them to become full-time employees”.  What effect, if any, they have on appear remains to be seen.

Presumably, other gig-economy companies are watching these cases closely. Prominent companies, like GrubHub, largely rely on similar app-based driver business models, that hinge on flexible independent contractors in order to provide quick and cost-efficient delivery of fast food and groceries directly to consumer homes. Should the California Labor Commissioner’s suits against Uber and Lyft prevail, these other companies may be subject to similar lawsuits that may impact their ability to operate successfully in California.

Whatever the ultimate outcome of these lawsuits, employers may still face a murky future.This is because Californians will be asked to vote on Proposition 22 on the November ballot. Prop. 22 would exempt app-based drivers from A.B. 5 who either: (a) provide delivery services on an on-demand basis through a business’s online-enabled application or platform; or (b) use a personal vehicle to provide prearranged transportation services for compensation via a business’s online-enabled application platform. In addition, Prop. 22, would also include additional protections to app-based drivers, ranging from the limited provision of certain benefits to increased compensation for certain drivers. If successful, the ballot initiative would likely stop the California Labor Commissioner’s lawsuits altogether.

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