The CDC Says that Fully Vaccinated Workers Do Not Need to Wear Masks – Sort OfIn an effort to motivate more Americans to take one of the COVID-19 vaccines, the CDC issued new Guidance yesterday that slightly loosens the restrictions on those of us who have been fully vaccinated. If you have been fully vaccinated (meaning that you have received both shots, if applicable), the CDC now says that:Continue reading “The CDC Says that Fully Vaccinated Workers Do Not Need to Wear Masks – Sort Of”
As you know, several pieces of federal legislation aimed at limiting or eliminating altogether mandatory arbitration in the employment setting have been proposed, and failed in the past several years. In fact, several states: California, New Jersey and New York, have all passed state laws prohibiting mandatory arbitration of employment disputes. The Biden administration is going to make another run at passing this legislation at the federal level, and employers should stay abreast of the progress of these Bills.
Two of the more comprehensive and high-profile Bills filed to date are the FAIR Act and the PRO Act.
Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 963).
The FAIR Act was reintroduced in February of this year. In 2019 the Bill passed the Congress but failed to clear the Senate. The current FAIR Act has 155 cosponsors in the House. If it passes, the FAIR Act will preclude mandatory arbitration agreements for disputes involving, among other things, civil rights and employment. It will also prohibit all class and collective action waivers. You may recall that I have suggested in past updates that class and collection action waivers were two of the most beneficial aspects of mandatory employment arbitration agreements.
Protecting the Right to Organize Act (PRO Act) (H.R. 842).
The PRO Act was also introduced in the Congress in February of this year. The PRO Act is even more pro-union and pro-employee than the FAIR Act. For example, the PRO Act would legislatively overturn the Supreme Court’s decision in Epic Systems and would make it an unfair labor practice for any employer to use class action waivers.
The PRO Act is expected to be opposed by virtually all Republicans; accordingly, its passage hinges on certain Democratic senators and whether the Senate retains the filibuster. In contrast, the FAIR Act is likely to receive some bipartisan support. Not only did the prior version of the FAIR Act receive some bipartisan support in the House, but some Republican senators may also support the bill-or at least a watered down version of it. For example, Senator Lindsay Graham (R-SC) has supported limiting mandatory arbitration agreements under the right circumstances. As drafted, the FAIR Act is unlikely to garner sufficient votes in the Senate to overcome a filibuster, but a compromise bill might.
Takeaways Ongoing state and federal activity demonstrates a concerted effort to limit the use of arbitration agreements and class waivers in the employment context. Unlike in recent years, the composition of Congress is more likely to allow for the passage of such Bills. As such, employers with arbitration programs, and those contemplating implementing such programs, should continue to monitor events in Washington.
On February 25th, the U.S. Department of Labor issued a Guidance to state unemployment insurance agencies expanding the circumstances in which workers may be eligible for Pandemic Unemployment Assistance (PUA).
The new Guidance expands eligibility to three categories of workers:
- Workers receiving unemployment benefits who had their continued regular unemployment benefits’ claims denied after they refused to work or accept an offer of work at a worksite not in compliance with coronavirus health and safety standards.
- Workers laid off, or who have had their work hours reduced as a direct result of the pandemic.
- School employees working without a contract or reasonable assurance of continued employment who face reduced paychecks and no assurance of continued pay when schools are closed due to coronavirus.
The new reasons are retroactive and will apply as if they had been included from the beginning of the PUA program. Individuals must self-certify that they are unemployed, or unable or unavailable to work because of identified coronavirus-related reasons during the applicable time period.
These new categories of eligibility will obviously create a good deal more work for the already overloaded state unemployment agencies. The DOL has indicated that it will provide state systems with funds to make necessary changes and time to update their systems to enable retroactive payment of PUA to eligible claimants. PUA is 100 percent federally funded, and administered by state agencies on behalf of the department’s Employment and Training Administration. This should be a great comfort to those of you who have been keeping up with the historic levels of fraud related to this program. (Scammers have taken $36 BILLION in fraudulent unemployment payments from American workers https://www.cnbc.com/2021/01/05/scammers-have-taken-36-billion-in-fraudulent-unemployment-payments-.html)
This case is a good example of just how expensive it can be when we don’t. The Plaintiff in this case, Mr. Burnette, worked in a call center for Ocean Properties. The call center was located in the clubhouse of a golf club. (Sounds a little sketchy right off the bat.) The public entrance to the club house, which Mr. Burnett had to use, had two heavy, wooden doors that pulled outward and then automatically closed. The area leading to the doors had a slight, downward slope away from the doors. Mr. Burnette was a paraplegic who used a wheelchair, and he had a very difficult time opening the doors by himself without rolling down the slope. In fact, after complaining several times and asking Ocean Properties to install push-button automatic doors, Mr. Burnette injured his wrist while trying to get through the doors by himself.
Rather than install the automatic doors, which would have cost around two thousand dollars, Ocean Properties merely confirmed that the doors were ADA-compliant when the clubhouse was built. However, at no time did Ocean Properties respond to any of Mr. Burnette’s requests for an accommodation or do anything to determine how it could help him more easily access the building. (At trial, Mr. Burnette testified that he was “tired, frustrated, [and] angry” that he never heard a response to his request and that he believed the defendants did not wish to accommodate him.)
Understandably, Mr. Burnette sued his employer on the grounds that Ocean Properties had unreasonably failed to accommodate his open and apparent disability. At trial Ocean Properties argued that since Mr. Burnette was excelling at his job despite his difficulties in entering the premises, he did not actually need a reasonable accommodation. Alternately, Ocean Properties argued that his request for automatic doors was not reasonable in any case.
The jury and Court of Appeals disagreed with both of Ocean Properties’ contentions “The fact that Burnett was able to enter the clubhouse (at the risk of bodily injury) despite this difficulty and to perform the duties of an associate once inside does not necessarily mean he did not require an accommodation or that his requested accommodation was unreasonable, as Appellants claim.” and held that Ocean Properties had indeed failed to reasonably accommodate Mr. Burnette. The jury awarded Mr. Burnette $150,000 in compensatory damages.
The jury also awarded Mr. Burnette $500,000 in punitive damages. The Court of Appeals affirmed the award of punitive damages, focusing on the fact that not only did Ocean Properties refuse to reasonably accommodate Mr. Burnette, but it also failed to respond to any of his numerous pleas for help. Had Ocean Properties simply exercised common sense and engaged in a dialogue with Mr. Burnette, it may well have avoided this punitive damage award even if it lost the underlying failure to accommodate claim.
In addition to compensatory and punitive damages, Ocean Properties was ordered to pay Mr. Burnette’s legal fees. When you include its own legal fees with the damages and legal fees awarded to Mr. Burnette, Ocean Properties easily spent well over one million dollars on this case, as opposed to the two thousand dollars that the automatic doors would have cost. (Actually, Ocean Properties could have installed approximately 500 sets of automatic doors for what this case cost it in monetary losses alone.)
Ocean Properties clearly made mistakes at several junctures: it failed to follow up with an employees’ repeated requests for an accommodation; it failed to make what would appear to be a very reasonable accommodation; and it failed to exercise even a modicum of common sense in its dealings with Mr. Burnette. When addressing an employee’s request for an accommodation, it is critical that we use our common sense, step back, and see the situation as an objective third-party would see it. Even if we don’t prevail on the underlying claim, we may still avoid a very expensive punitive damage judgment.