On February 23, 2021, the U.S. Department of Labor (DOL) sent a proposed new regulation on joint employment status under the Fair Labor Standards Act (FLSA) to the White House for regulatory review. This action is indicative that new guidance will follow for determining joint employer status when an employee performs work that benefits more than one employer.
It is no secret that private sector union membership has dramatically decreased over the past several decades. This reality has forced labor organizers to get creative with their efforts. Perhaps this is one reason why stories of a union presence at tech industry giant, Google, have recently gained so much attention. Reports of a “minority union” at Google began to swirl earlier this year after a group of several hundred Google employees announced their creation of the “Alphabet Workers Union.” Named for Google’s parent, Alphabet, Inc., the Alphabet Workers Union was supported by, and now affiliated with, the Communication Workers of America. The union claimed its membership quickly grew to more than 800 members.
On Jan. 28, the New York State Appellate Division, First Department, issued a decision with potentially significant implications for employers confronted with their employees’ use of medical marijuana.
The first few weeks in the Biden administration have been nothing short of busy. At the National Labor Relations Board (Board), it seems like there has been no time to waste in prioritizing items on the administration’s agenda.
Only hours after being sworn into office on Jan. 20, 2021, President Biden took unprecedented action and fired Trump-appointed General Counsel Peter Robb. Former General Counsel Robb was reportedly offered the opportunity to resign, but refused, and was then fired. Robb’s term was set to expire in November of this year. A day later, Biden terminated second in command, Deputy General Counsel Alice Stock. President Biden appointed Peter Sung Ohr to serve as Acting General Counsel of the Agency. Ohr, most recently served as the Regional Director of Region 13 of the NLRB in Chicago.
On Jan. 29, 2021, the Occupational Safety and Health Administration (OSHA) released updated guidance to assist most employers and workers with implementing a coronavirus prevention program and mitigating the risk of the spread of coronavirus. The guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (Guidance) was prepared to comply with President Biden’s Executive Order issued on Jan. 21, 2021, directing the federal government to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.”
Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.
Worker Adjustment and Retraining Notification (WARN) litigation is gearing up in the wake of millions of COVID-19 related layoffs that took place in 2020.
The Federal WARN Act applies to employers with 100 or more employees, and typically requires written notice 60 days in advance of a plant closing or mass layoff. The Act permits employers to reduce this notice period upon showing that a statutory exception applies. Specifically, the Act contains exceptions relating to faltering companies, unforeseeable business circumstances, and natural disasters. If an employee sues his employer for failure to provide statutorily required notice, the burden is on the employer to demonstrate that one of these exceptions applies.
Employers issuing notices pursuant to the New York State Worker Adjustment and Retraining Act (NY WARN) are now subject to additional requirements due to a statutory amendment that Gov. Cuomo signed into law on November 11, 2020. This amendment, which is effective immediately, expands the list of entities whom covered employers must notify prior to implementing a plant closing or mass layoff. The list now includes: (1) the chief elected official of the unit(s) of local government and the school district(s) in which the plant closing or mass layoff will occur; and (2) each locality which provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment subject to the plant closing or mass layoff.
On April 1, 2020, the Department of Labor (DOL) published the first regulations on the Families First Coronavirus Response Act (FFCRA). As a reminder, the FFRCA became effective on April 1 as well, and provides for Emergency Family and Medical Leave (EFMLA) and Emergency Paid Sick Leave (EPSL). Both laws apply to private employers with fewer than 500 employees, as well as some public employers.
On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)—a $2 trillion stimulus bill to respond to the coronavirus pandemic. The unemployment insurance portion of this act, known as the Relief for Workers Affected by Coronavirus Act, provides enhanced unemployment benefits including larger benefit amounts, availability for a longer period of time, and extended coverage for individuals who are not typically eligible for unemployment benefits, as outlined below.
The Families First Coronavirus Response Act (FFCRA) provides paid sick leave and amends the Family and Medical Leave Act (FMLA) to include a new qualifying reason for leave related to COVID-19. However, the FFCRA permits employers to exempt “health care providers” and “emergency responders” from eligibility for these benefits.
On September 10, 2019, the National Labor Relations Board issued a favorable decision that makes it easier for employers to demonstrate that a unilateral change in terms and conditions of employment was permitted by the collective bargaining agreement. In M.V. Transportation, Inc., a three-member majority of the Board (over one dissent) abandoned its previous "clear and unmistakable waiver" standard and adopted the more lenient "contract coverage" standard.
