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.
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.
In 2016 the U.S. Department of Justice and the U.S. Federal Trade Commission released with little fanfare the Antitrust Guidance for Human Resource Professionals (Antitrust Guidance). Generally, the Guidance warned human resource professionals that agreements between competitors to set wages or to refrain from soliciting each other’s employees (“no-poach agreements”) could result in criminal prosecution under U.S. antitrust laws. Although the DOJ has pursued a number of civil cases since then, it did not obtain its first criminal indictment until December of 2020.
Wage Setting: In United States v. Neeraj Jindal, (E.D. Tex. Dec. 09, 2020) the U.S charged Neeraj Jindal, the former owner of a physical therapist staffing company, with violating the Sherman Act by conspiring with a competing physical therapist staffing company to fix wages for physical therapists and physical therapist assistants in the Dallas-Fort Worth metropolitan area. The DOJ specifically alleged that over a six-month period from March to August 2017, Jindal exchanged nonpublic information with his co-conspirators about the rates paid to physical therapists. The DOJ claimed that Jindal and his co-conspirators communicated about rate decreases, discussed and agreed to decrease rates paid to physical therapists, implemented rate decreases in accordance with the agreement reached, and paid physical therapists at collusive and noncompetitive rates. The DOJ produced numerous text messages between Jindal and his co-conspirators concerning the alleged conspiracy. (As I have said before, if you don’t want it read or seen in court, then don’t take a picture of it, text it or send it in an email.)
Non-Solicitation Agreements: In January of this year, the DOJ filed criminal indictment against Surgical Care Affiliates, LLC alleging that SCA, which owns and operates outpatient medical care centers across the country, entered into two separate bilateral conspiracies with other health care companies not to solicit senior-level employees, thereby suppressing competition for the services of those employees.
The DOJ alleges that beginning as early as May 2010 SCA and another company conspired to suppress competition between them by agreeing not to solicit each other’s senior-level employees. The DOJ also alleged that SCA conspired with another company to allocate senior-level employees through a similar nonsolicitation agreement. The DOJ claimed that SCA enforced its no-poach agreements by instructing recruiters not to recruit senior-level employees from the other two companies, by requiring senior-level employee applicants to notify their bosses when they were seeking other employment, by monitoring compliance with the no-poach agreements, and by refraining from soliciting each other’s senior-level employees. The DOJ has again provided emails between SCA and the other two companies admitting the existence of the agreements.
Take away: Employers, Executives and HR professionals, should be very careful when they communicate with their competitors regarding non-public information regarding wages and any sort of agreements not to attempt to hire away each other’s employees. While prosecution is far from common, we can count on the new administration to be much more aggressive in seeking criminal indictments for these types of activities.
A recent Third Circuit Court of Appeal decision provides great guidance on what a good call-in policy can look like. In this case the employer, Penn State Health, utilized a call-in policy that required employees to make two calls when they wanted to request FMLA leave: First, an employee had to call to a designated “call-off” line, and second, the employee was required to call the Company’s third-party administrator to report the need for FMLA leave.
In this case the employee, Ms. Kelly, failed to call one of the lines and consequently earned disciplinary “points”. When she reached the maximum allowed points, her employment was terminated.
Ms. Kelly sued Penn State Health alleging that her employer had retaliated against her for requesting FMLA leave and interfered with her ability to take FMLA leave. The District Court held that Ms. Kelly’s failure to comply with the Hospital’s absence-reporting policy defeated all of her claims, in part because she offered no reasonable explanation for her failure to follow them. In doing so, the District Court specifically stated that: An employee must comply with the employer’s requirements for requesting leave, unless those requirements conflict with a substantive provision of the FMLA. In this instance, the Hospital’s dual call-in requirements did not conflict with any substantive provision of the FMLA.
- Implement and enforce a clear and specific written call-in policy that requires employees to call in to a specific person or line to report their absence and the reason need for leave within a certain time period. You should be able to require two calls – one to report the absence generally to the manager and another to an employer intake line, human resources, or a third-party administrator handling FMLA requests.
- Evaluate your FMLA policies to ensure that they Include language regarding how you expect your employees to communicate with you regarding the need for leave of any kind. I would suggest that you also specify what type of information the employee must provide when they call in:
- the specific reason for their absence with sufficient information to allow you to determine if the FMLA applies to the leave;
- when the leave will begin and when it is expected to end, and
- a telephone number and email where the employee may be reached.
It is also a good idea to state that an employee will be required to provide a reasonable excuse if they fail to comply with the call-in procedures.
Right now, a surprising number of eligible workers are declining to be vaccinated, with a similar percentage indicating that they will refuse once they become eligible. Depending upon whose numbers you believe, approximately one-half of the health care workers and first responders eligible to receive the vaccine have indicated that they will not do so. This is leading many employers to consider whether or not they should require or incentivize their workers to take the vaccine when it becomes widely available. There are a few things to keep in mind if you are considering doing so.
ADA/Title VII Right now, you CAN require your employees to get the vaccine. However, you must accommodate a disabled employee who is unable to take the vaccine (ADA) as well as an employee to objects to being vaccinated due to sincerely held religious beliefs (Title VII). If either the ADA or Title VII applies to your situation, you may not be able to force the employee be accept the vaccine. Rather, you might accommodate the employee by allowing her to work remotely or offer her an alternate schedule that does not require as much co-worker and client interaction.
The EEOC has already stated that getting the COVID-19 vaccine is not a medical examination, but questions asked in the vaccination process may well seek medical information in violation of the ADA. This information should remain with the vaccine administrator and not be provided to the employer.
FLSA You must consider if the time spent by your workers being vaccinated is compensable time under the FLSA. If you require that they be vaccinated, employees may have a legitimate claim to compensation for the time spent doing so. You can count on plaintiff’s lawyers challenging this in the form of FLSA class-actions. (Yet another reason to include an Alternate Dispute Resolution process disavowing any class or collective actions in your Handbook, but that is an issue for another article.)
Workers Compensation/Civil Liability One of the primary concerns of employers is that they may open themselves to workers compensation and civil liability claims if an employee suffers an adverse reaction due to the vaccine. We obviously do not have sufficient law at this point to say with certainty whether or not these types of claims will succeed, but you can rest assured that employees will attempt to make claims under one or both theories.
“Voluntary wellness program” Many employers are considering offering employees come sort of incentive to encourage them to be vaccinated. Employers should carefully consider the ramifications of each type of incentive. A cash reward could be constitute a non-discretionary bonus that must be included in a non-exempt employee’s regular rate of pay for the period in which it was earned. In addition, employers must consider whether or not offering an incentive would constitute a “voluntary wellness program” that might be prohibited by the EEOC guidelines. (Keep in mind that last month the EEOC withdrew its proposed Rule that would have made it easier and safer to implement such a voluntary wellness program.)
Bottom line: employers should carefully consider the risks and benefits of requiring or incentivizing employees to take the COVID-19 vaccine before they do so.
President Biden’s almost $2 trillion “American Rescue Plan” is working its way through Congress. Several provisions of the Plan could significantly impact employers:
Minimum wage: The Plan would raise the federal minimum wage to $15 an hour over four years and end the tipped minimum wage and the sub-minimum wage for people with disabilities.
Worker safety: The Plan includes significant provisions designed to improve worker safety, including a COVID-19 Standard to be created by OSHA as well as additional funding for enforcement.
Expanded FFCRA leave: The Plan would extend the paid sick and family leave benefits of the FFCRA to September 31, 2021 and would require all employers to offer FFCRA leave, including health care providers and those with fewer than 50 employees and those with more than 500 employees. The ARP also would require up to 14 weeks of paid sick and family and medical leave and expand the list of parental caregiving situations that will be covered. The Plan proposes to reimburse employers with fewer than 500 workers the full cost of providing the leave.
Extended unemployment: The ARP would increase federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that was approved last year, through September of this year, and expand eligibility to independent contractors.
Miscellaneous: The ARP would also:
- Grant approximately $440 billion in support to “struggling communities,” including small businesses, Tribal governments, public transit, and essential workers;
- Provide $130 billion to help schools safely reopen;
- Expand the Higher Education Emergency Relief Fund;
- Expand financial assistance to both childcare providers and families, including:
- providing a fully refundable Child Tax Credit for one year, and
- expanding the Earned Income Tax Credit for one year;
- Provide another $1 billion for states for Temporary Assistance to Needy Families (“TANF”) recipients.
Employers need to keep an eye on this Bill as it winds its way through Congress.
On the 8th of this month the Ninth Circuit Court of Appeals issued a ruling that certain per diem payments must be included in an employee’s regular rate of pay. Although the Ninth Circuit covers only Alaska, Arizona, California, Guam and Hawaii, the ruling is nonetheless worth noting to those of us fortunate enough to live and work in the Fifth Circuit.
As you know, under the FLSA a non-exempt employee must be paid overtime at the rate of time and a half times the employee’s regular rate of pay. This fact begs the question: what constitutes the regular rate of pay?
The short answer is: it depends.
In the case before the Ninth Circuit, Clarke v. AMN Services, LLC, AMN, a staffing company sometimes placed its employees at facilities that required them to drive a long distance from their homes. In addition to their hourly rates, AMN paid the employees who traveled more than fifty miles from their homes per diems that were intended to reimburse them for the cost of meals, housing, and other expenses. Being aware of 29 CFR 778.217, AMN Services did not include the per diem payments in the traveling workers’ regular rates of pay when calculating their overtime.
29 CFR 778.217 states in relevant part that:
(a) General rule. Where an employee incurs expenses on his employer’s behalf or where he is required to expend sums by reason of action taken for the convenience of his employer, section 7(e)(2) is applicable to reimbursement for such expenses. Payments made by the employer to cover such expenses are not included in the employee’s regular rate (if the amount of the reimbursement reasonably approximates the expense incurred). Such payment is not compensation for services rendered by the employees during any hours worked in the workweek.
(b) Illustrations. Payment by way of reimbursement for the following types of expenses will not be regarded as part of the employee’s regular rate…
(5) The actual or reasonably approximate amount expended by an employee as temporary excess home-to-work travel expenses incurred (i) because the employer has moved the plant to another town before the employee has had an opportunity to find living quarters at the new location or (ii) because the employee, on a particular occasion, is required to report for work at a place other than his regular workplace.
The Ninth Circuit held that these per diem payments should have been included in the employee’s regular rate of pay because the structure of the payments suggested that they were more akin to wages rather than reimbursements. For example, the amount of the per diem payments depended in part on the number of hours worked by the employee rather than the expenses the worker incurred. In addition, AMN Services made identical per diem payments to its employees who were not required to travel more than 50 miles away from home on assignment. The company included these per diems in the local workers’ regular rates and expressly considered them to be part of their overall compensation package.
The Ninth Circuit’s opinion is not groundbreaking, but it is a good reminder that we should take a hard look at our per diem and reimbursement policies and practices to determine if they should be included in the regular rate of pay or not. Considering that the FLSA provides for 100% liquidated damages and the recovery of attorney’s fees, and that the Louisiana “payday” statute allows for the recovery of ninety day’s penalty wages and attorney’s fees, failing to properly calculate an employee’s regular rate of pay can be a very costly error.
On November 30, the Wage and Hour Division of the U.S. Department of Labor issued two new Opinion Letters dealing with two rather uncommon Fair Labor Standard Act situations.
FLSA2020-17: Calculation of piece-rate regular rate of pay. Addresses the proper method to be used to calculate the regular rate of pay of an employee paid on a piece-rate basis in the absence of a specific agreement with the employee to use such method. (As an aside, always commit the use of this method to writing.)
FLSA2020-18: Does insect farming equal agriculture. Addresses whether insect farming qualifies as “agriculture” under the FLSA and whether certain workers employed by an insect farming operation may be exempt from overtime pay requirements under Section 13(b)(12).
You can read the full Opinion Letters here https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_30_17_FLSA.pdf and here https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/2020_11_30_18_FLSA.pdf if either situation applies to you.
In light of the COVID-19 pandemic, getting a flu shot this year is even more important than it has been in the past. (If you don’t believe me, talk to the CDC.)
Does this mean that employers should require all their employees to get flu shots? The short answer is NO.
As of this moment, there is no federal or state law (in Louisiana that is) requiring all employers to compel all their employees be vaccinated for the flu. In fact, both the ADA (for persons with disabilities) and Title VII (for sincerely held religious beliefs) provide exceptions that would allow an employee to refuse to be vaccinated. Rather than require vaccinations, the EEOC has stated that “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” (Guidance) This Guidance was initially issue by the EEOC in 2009 and it was recently re-issued in March of this year.
This means that although most employers can strongly recommend that employees be vaccinated for the flu, they would also be required to go through the accommodation analysis required by the ADA and Title VII if an employee asked to be excused from the vaccination as an accommodation.
Healthcare Workers: While the reasonableness of a healthcare worker’s request to not be vaccinated would be held to higher scrutiny, especially in the case of one who provides direct patient care, the general analysis under the ADA and Title VII will be the same. The existence of a state or local law or administrative guidance recommending vaccinations for healthcare workers and the worker’s direct contact with patients will play into the reasonableness, or lack thereof, of the employees request to not be vaccinated.
Employers should ensure that their requests, or mandates as the case may be, that employees be vaccinated are based upon the best available guidance: refer to the CDC and EEOC publications above, and the worker’s specific job duties. Whatever policy you land on needs to be clearly communicated to your employees and your supervisors must be trained to respond to employee requests to be exempt from vaccinations. (This should generally entail spotting the issue and immediately reporting it to HR for the appropriate analysis.) And, in the context of all of this communication and analysis, the employee’s medical information should be kept confidential.