Merle M. DeLancey Jr.
Protection of the workforce is a major focus of the Biden Administration. Rather than attempting to pass new legislation or amend existing statutes, the path of least resistance in the short term appears to be the use of executive orders to implement or, as here, rescind Trump Administration Executive Orders and put into effect many of the same policies as the Obama Administration. The starting point for the Biden Administration is to take the steps to implement rules with respect to the federal workforce and the workforce performing federal government contracts.
One of President Biden’s first actions in office was to direct federal government agencies to start the work to permit implementation of certain changes within the first 100 days of the administration through further executive action. These initiatives most likely will include an increased federal contractor minimum wage, requirements to offer employment to employees of an incumbent contractor, perhaps requiring contractors to disclose labor violations when seeking federal contracts, and increased Service Contract Act (“SCA”) enforcement.
Continue reading “Biden Administration Prioritizing Federal Contractor Workforce Protections”
- President Biden’s Executive Order 14003 on Protecting the Federal Workforce issued on January 22, among other requirements, directed the Office of Management and Budget to make recommendations regarding establishing a $15 minimum wage for federal employees and federal contractors and subcontractors (the current federal contractor minimum wage is $10.95) and to provide employees with emergency paid leave.
- President Biden’s Executive Order 13985 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government issued on January 20 revoked President Trump’s controversial Executive Order prohibiting certain types of workplace diversity trainings for federal government contractors.
Mara B. Levin, Anthony A. Mingione, and Jacob W.E. Kearney
The U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance on December 16, 2020, to address the impact of COVID-19 vaccinations in the workplace. The guidance indicates that employers may require COVID-19 vaccinations for workers to be able to return to the workplace as long as employers comply with Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”).
Here are a few highlights:
- Administration of the vaccine by the employer (or a contractor on the employer’s behalf) is not a medical examination and does not implicate the ADA, GINA, or Title VII. Employers must ensure, however, that all vaccine pre-screening questions are “job-related and consistent with business necessity” and do not request genetic information.
- Asking or requiring employees to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA because it is not likely to reveal information about any disability, nor does it impact GINA. Subsequent questions, such as “why did an employee not receive the vaccine,” would implicate concerns under the ADA and GINA, however. Employers must therefore also ensure that follow-up questions are “job-related and consistent with business necessity” and avoid asking questions about genetic information or family medical history.
- Employers must provide reasonable accommodations, subject to “undue hardship” analysis, to workers who are unable to get the vaccine because of a disability (under the ADA) or sincerely held religious beliefs (under Title VII).
- An employer may physically preclude an employee who cannot be vaccinated from entering the workplace when that employee poses a “direct threat to the health or safety of individuals in the workplace,” which threat cannot be eliminated by a reasonable accommodation. However, an employer may not automatically terminate the employment of that worker. Employers must consider what protections the employee may have under relevant EEO laws or other federal, state, and local authorities.
We encourage employers working on their return-to-work strategies to review the EEOC guidance as they consider how and whether to implement COVID-19 vaccination requirements. If you have any questions or need guidance specific to your workplace, please do not hesitate to contact Blank Rome for more information.
Jacob W.E. Kearney, Stephen E. Tisman, Anthony A. Mingione, and Mara B. Levin
New York City recently amended its Earned Safe and Sick Time Act (the “Act”) to match New York State’s recent changes to the Labor Law requiring all employers to provide sick leave to employees as discussed in our prior posts (Empire State Requires All Employers to Provide Sick Leave; Act Now! Changes to New York Sick Leave Are Here). New York City’s Act now matches the New York State requirements that employers must allow employees to accrue safe/sick time of between 40 to 56 hours per year (depending on employer size and net income). Although effective September 30, employees may be restricted from using any additional accrued paid time under the new legislation until January 1, 2021. New York City employers are also required to provide notice of the changes to their employees by October 30, 2020.
Mirroring the new Labor Law requirements, the New York City Act provides that:
- Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid safe/sick time each calendar year;
- Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year;
- Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year; and
- Employers with fewer than five employees and having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid safe/sick time each calendar year.
Continue reading “New York City Matches New York State’s Sick Leave Requirements, and Adds More”
Kevin M. Passerini and Oliver R. Katz
Pennsylvania law has long required that a restrictive covenant agreement be signed prior to or at the start of employment for it to be enforceable. By extension, Pennsylvania law has also required consideration beyond continued employment—a promotion, bonuses or stock options, severance, or other meaningful consideration—to support a restrictive covenant agreement with an existing employee. Those requirements left a somewhat gray area where a newly hired employee (or an internal employee elevated to a new position) does not sign a restrictive covenant agreement until shortly after starting in the new role and does so without receiving any consideration distinct from the new employment position itself.
In its June 16, 2020 decision in Rullex Co., LLC v. Tel-Stream, Inc., 27 EAP 2019 (Pa. 2020), the Pennsylvania Supreme Court waded into that gray area to consider whether new or “fresh” consideration must be provided any time a restrictive covenant agreement is executed after an employee’s first day in a new role. The court rejected the exclusive use of a bright-line rule requiring execution at or prior to the commencement of employment. Instead, relying in part on a decision from 50 years ago, it left the door slightly open so that restrictive covenants signed after employment has already commenced may be enforced where there was a meeting of the minds on the substance of the restrictive covenants at or prior to the start of employment. As the court noted, the critical inquiry is whether the parties had agreed to the “essential provisions” when the relationship began, such that the restrictive covenant agreement was ancillary to the taking of employment, or whether there was no meeting of the minds such that the restrictive covenants were a “belated addition” to their relationship, requiring additional consideration. In applying its standard to the facts of the case, the court held that there was no meeting of the minds at the start of the relationship based on the delay of at least two months before the signing of the agreement and Rullex’s willingness to consider and accommodate revisions to the original draft.
With the clarity provided in Rullex, employers likely cannot rely on the mere circulation of a restrictive covenant agreement prior to the start of a new employment position to ensure its enforceability. And employers must also be wary of continued negotiations with prospective employees (or existing employees who are candidates for promotions) after having presented an agreement containing restrictive covenants.
Going forward, the most obvious (and best) way to avoid a dispute over whether the parties had a “meeting of the minds” is to have a restrictive covenant agreement signed before a new employee commences work in the new role and before an existing employee assumes a new role within the company. Another good option is for an employer to attach the restrictive covenant agreement to an offer letter that conditions employment (or any promotion or other new position) on the execution of the agreement and to require the individual to sign that offer letter in advance of starting in the new position with an acknowledgment that he or she has received and reviewed the agreement and accepted all of the terms of the offer. Anything less is likely to leave employers in the gray area, fighting it out in court or in arbitration.
Asima J. Ahmad
On April 14, 2020, New Jersey Governor Phil Murphy signed Senate Bill 2353 into law, which excludes mass layoffs resulting from the coronavirus COVID-19 pandemic from the notice and severance pay requirements contained in the Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN”). Prior to this change, employers faced uncertainty on whether they would be obligated to provide notice and severance pay to each full-time employee that was terminated with less than the required 60-days’ notice due to the pandemic.
Specifically, SB 2353 revises the definition of “mass layoff” to mirror the exceptions that are already contained in NJ WARN’s definition of “termination of operations.” As a result, a mass layoff which would otherwise require notice shall not include one “made necessary because of a fire, flood, natural disaster, national emergency, act of war, civil disorder or industrial sabotage, decertification from participation in the Medicare and Medicaid programs as provided under Titles XVIII and XIX of the federal “Social Security Act,” Pub.L. 74-271 (42 U.S.C. s.1395 et seq.) or license revocation pursuant to P.L.1971, c.136 (C.26:2H-1 et al.).” These changes go into effect immediately and are retroactive to March 9, 2020, the date that Governor Murphy declared a COVID-19-based state of emergency and public health emergency in New Jersey via Executive Order 103. Continue reading “NJ WARN Amended in Light of COVID-19 Pandemic”
Caitlin I. Sanders
As we previously reported, on April 7, 2020, Los Angeles City Mayor Garcetti issued an emergency order calling for supplemental paid sick leave for City employees who are not covered by the federal Families First Coronavirus Response Act and who must miss work for reasons related to COVID-19. On April 11, 2020, the Los Angeles Office of Wage Standards (“OWS”) issued rules and regulations clarifying Mayor Garcetti’s supplemental paid sick leave order. The rules and regulations can be found on the OWS website here.
The OWS anticipates updating these rules and regulations, and we will continue to monitor the OWS for the latest guidance.
For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.
Caitlin I. Sanders
On April 7, 2020, Los Angeles City Mayor Eric Garcetti issued an Emergency Order requiring certain employers to provide up to 80 hours of supplemental paid sick leave to employees who are not covered by the federal Families First Coronavirus Response Act for reasons related to COVID-19. The Emergency Order can be found on Mayor Garcetti’s website here.
Here are the basic provisions of Mayor Garcetti’s COVID-19 Supplemental Paid Leave Order (“Order”):
Who Is Covered by the Supplemental Paid Sick Leave Order?
Employers with 500 or more employees within the City of Los Angeles or 2,000 or more employees nationally may be required to provide supplemental paid sick leave to employees who are unable to work or telework if they meet the following criteria: (i) they have worked for the same employer from February 3, 2020, through March 4, 2020, and (ii) they perform work in the City of Los Angeles.
Emergency and health services, parcel delivery services, and government agency employees are expressly exempt from the Order. Continue reading “Emergency COVID-19 Order Issued in City of Los Angeles: Additional Paid Sick Leave Requirements for Large LA Employers”
Michael L. Ludwig
Citing the need to prevent or mitigate the spread of COVID-19, California Governor Newsom acknowledged that California employers have had to close rapidly without providing their employees the advance notice required under California law. Generally, the California WARN Act requires employers to give a 60-day notice to affected employees and both state and local representatives prior to a plant closing or mass layoff.
By Executive Order (see https://www.gov.ca.gov/wp-content/uploads/2020/03/3.17.20-EO-motor.pdf), California is suspending the 60-day notice requirement for an employer that orders a mass layoff, relocation, or termination at a covered establishment on the condition that the employer:
- provides the affected employees with a notice as described by the California WARN Act;
- provides as much notice as is practicable, including a brief statement of the basis for the reduced notice;
- undertakes the mass layoff, relocation, or termination because of COVID-19-related business circumstances that were not reasonably foreseeable; and
- includes specified language in the notice advising affected employees that they may be eligible for unemployment insurance.
The Labor and Workforce Development Agency will be providing guidance regarding implementation of the Order by March 23, 2020.
For the latest updates, please visit Blank Rome’s Coronavirus (“COVID-19”) Task Force page.
Caroline Powell Donelan and Natalie Alameddine
The hopes of California gig economy companies to retain the flexibility to classify workers as independent contractors were dashed this week when a federal district court judge refused to enjoin Assembly Bill 5 (“AB5”), which codifies the “ABC” test for most independent contractor classifications.
Governor Gavin Newsom signed AB5 into law last fall, effecting a seismic change on California’s legal landscape. Effective January 1, 2020, the law makes it nearly impossible for companies to lawfully classify most workers as independent contractors (rather than employees). The bill expands on California Supreme Court’s three-prong “ABC” test from its 2018 Dynamex decision for determining how workers can be classified, which you can read about here. With certain limited statutory exceptions, AB5 provides that, to properly classify a worker as an independent contractor in California, an employer must demonstrate that the worker: (A) is free from the company’s control and direction; (B) performs work outside of the company’s usual course of business; and (C) is customarily engaged in independent work of the same nature as the work performed. There is no balancing, as all three factors must be met. Continue reading “California Corner: The Employee v. Contractor Saga Continues as Uber and Postmates Face First Defeat in Attempt to Enjoin AB5”
Caroline Powell Donelan and Taylor C. Morosco
California Governor Gavin Newsom went on a bill-signing frenzy earlier this month, enacting 17 new bills into law. Below, we highlight the “Big Five” which will have a certain and critical impact on any business with workers in the Golden State.
AB 51 – Prohibiting Mandatory Arbitration. California’s battle against arbitration wages on! For agreements “entered into, modified, or extended” on or after January 1, 2020, AB 51 prohibits employers from requiring current employees or applicants to “waive any right, forum, or procedure for a violation” of the Fair Employment and Housing Act or the California Labor Code. This necessarily means that an employer will not be permitted to require applicants or employees to consent to mandatory arbitration as a condition of employment. Notably, employees may still voluntarily consent to arbitration, and AB 51 does not apply to “postdispute” settlement agreements or “negotiated” severance agreements, terms that beg for clarification. AB 51 prohibits retaliation against individuals who refuse to consent to such agreements and even authorizes injunctive relief and attorneys’ fees to any plaintiff who proves a violation. There is no doubt that this bill will be challenged under the Federal Arbitration Act (“FAA”), which preempts any state law that “stands as an obstacle” to enforcing arbitration agreements. While the bill contemplates and tries to avoid preemption by expressly stating it is not “intended to invalidate a written arbitration agreement that is otherwise enforceable under the [FAA],” similar attempts by the state have been rejected. Continue reading “Shocker!? Scary New California Employment Laws – Coming to You January 1!”