As we all know by now, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to protect workers in businesses with more than 100 employees from the Coronavirus, and on November 6, 2021, the Fifth Circuit Court of Appeals stayed enforcement of the ETS. B.S.T. Holdings, LLC, et al. v OSHA, et al., No. 21-60845.

In anticipation and with the hope that the stay will be lifted at some point and that the ETS will go into effect, on November 10, 2021, the National Labor Relations Board’s (NLRB) Office of the General Counsel, Division of Operations Management, issued a Memo (the Memo) to the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers regarding how to respond to inquiries the NLRB is receiving  with respect to collective bargaining obligations under the ETS.

The Memo essentially states two things: 1) that an employer must bargain with a union that represents its employees about any requirements of the ETS where the employer has discretion as to their implementation; and 2) to the extent an employer does not have discretion as to the implementation of certain requirements of the ETS, it still must bargain with the union representing its employees as to the effect of those requirements.

More specifically, the Memo states that, “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.”  In other words, while OSHA may mandate certain requirements that must be followed by employers despite the existence of a collective bargaining agreement, to the extent the ETS provides employers with options as to how to implement some of the requirements of the ETS, an employer must bargain with the union representing its employees as to implementation of those requirements:  “the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.”

The Memo goes on to state that where an employer does not have discretion over certain requirements of the ETS, it must nevertheless bargain with its employees’ union regarding the effect of those requirements: “To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.

Return to work procedures and vaccine mandates have consumed much of Human Resources’ attention over the past year. However, there are other areas of the law that employers should continue to monitor. For example, California recently passed Senate Bill 331 (“SB 331”) which limits an employer’s ability to use non-disparagement, non-disclosure, and confidentiality agreements. Specifically, SB 331 prohibits an employer from using language in a settlement agreement which prevents or restricts an employee’s ability to disclose facts in a lawsuit regarding:

  • An act of sexual assault;
  • An act of sexual harassment; or,
  • Generally, acts of workplace harassment, discrimination, or retaliation.

SB 331 also makes it unlawful for an employer to include a provision in a separation agreement which prohibits an employee from disclosing information about unlawful acts in the workplace. Unlawful acts in the workplace are defined broadly as “information pertaining to harassment or discrimination or any other conduct that the employee has reasonable cause to believe is unlawful.”

Of course, SB 331 only applies to employers in California. However, it serves as a good reminder for employers to review their separation agreements and goals of those agreements. For example, some employers may include a non-disparagement provision in their separation agreements that – while legally enforceable – has never been enforced. If this is the case, an employer might consider changing or deleting this language as it is superfluous. As another example, some employers may actually include a mutually enforceable non-disparagement provision which, in practice, will be invoked by the former employee much more often than by the employer. Again, an employer may want to revise this language.

In 2020, the Ohio BWC decided to return a total of nearly $8 billion in dividends to Ohio employers over the course of the year. Although the amount of the dividends reflected an effort to assist employers reeling from the effects of the COVID-19 pandemic, dividend returns are not exclusively a COVID-19 relief effort; any given year, the BWC may return dividends to employers based on investment returns on employers’ premiums and the number of injury claims for that year. Last year was much higher than typical years, however, as the BWC saw especially good returns on premium investments and a significant decrease in the number injury claims with business activities slowed and many employees working from home or out of work entirely. This allowed for an especially large payment of dividends to be returned to employers… or at least, qualifying employers.

Not all Ohio employers received all of their dividend checks last year. There were three rounds of dividend payments issued by the BWC—a return of $1.54 billion in late April, another $1.34 billion returned in October, and then approximately $5 billion in December. To be eligible for the October and December dividend returns, employers needed to have paid premiums for the policy periods referenced above. Employers also need to have completed their payroll true-up reports for the 2019 policy year by October 2, 2020—the day that the BWC determined eligibility for the October dividend. Employers who had not completed their payroll true-up reports by that date missed out on their checks for the October and December dividends—substantial sums of money during a time of particular financial hardship—and were essentially left without recourse. The BWC literature available to employers online was unequivocal with respect to that October 2nd deadline, with no clear method for appeal or review regarding eligibility. Employers either received their checks in the mail or, if they missed the deadline for any reason, did not.

Spurred on by the efforts of many employers who missed out on their share of the dividends and their attorneys—including several attorneys here at Frantz Ward—the BWC has reversed course regarding its refusal of payment of the $5 billion December dividend to employers who did not originally meet the eligibility requirements. Approved by vote of the BWC Board of Directors on September 24, 2021, $30 million in previously unpaid dividend returns will go out to approximately 3,000 employers that missed out on the original December dividend payment. According to the BWC’s FAQ located here, the primary reason for this decision is the fact that the October 2, 2020 “deadline” for eligibility for the dividend payments was actually one month prior to Board approval of the December dividend, meaning that many employers found themselves already ineligible with no opportunity to remedy it by the time the dividend was announced.

The BWC announced that it will directly contact employers eligible for this dividend expansion, but employers who believe that they may be eligible but do not receive any such communications from the BWC should consult their legal representative or contact their BWC employer services specialist regarding the issue.

On September 24, 2021, the Biden Administration’s Safer Federal Workforce Task Force issued Covid-19 workplace safety guidance for federal contractors and subcontractors. The 14-page guidance provides that “covered contractor employees” must be fully vaccinated by December 8, 2021, unless a religious or medical exemption applies. There is no testing option for employees who choose not to be vaccinated and individuals are considered “fully vaccinated” two weeks after receiving the second dose of an approved vaccine. The mandate applies to all full-time and part-time employees of a covered contractor, subject to a few limited exceptions such as medical or religious exemptions, as well as certain employees who work at a location that has no nexus to the federal contract or subcontract or remote employees who perform no work relating to the contract or subcontract. The mandate, however, does apply to employees (remote or otherwise) who are only indirectly involved in supporting a government contract.

The mandate contains several other requirements, including, but not limited to:

  • requiring covered employees to follow CDC masking and physical distancing obligations
  • requiring covered employers to designate a Covid-19 safety coordinator to coordinate and implement the requirements of the mandate

The key question in implementing this mandate will be: who is a covered employer? Generally speaking, the mandate will apply to federal contracts for services, construction, a leasehold interest in real property or if the contract is in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.

Questions will undoubtedly remain regarding the scope and coverage of the mandate, as well as how exemptions are to be applied. Frantz Ward will continue to monitor updates related to the federal mandate guidance. In the meantime, covered contractors should begin to implement steps now to comply with the guidance.

Feel free to reach out to a member of Frantz Ward’s Labor and Employment Group with questions.

On September 29, 2021, the General Counsel of the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a Guidance Memorandum memorializing her position that student-athletes at private universities should be considered “employees” under the National Labor Relations Act (NLRA).

The NLRB has never  directly answered the question of whether student-athletes are employees under the NLRA.  It nearly did so in 2015, when members of the Northwestern University football team attempted to unionize. Instead, the Board declined to exercise jurisdiction on grounds that the novelty of the players’ petition and its impacts on college sports would not have promoted “stability in labor relations.”

Since the Northwestern decision, as GC Abruzzo explained in her Memorandum, the concept of student-athletes as employees has gained broader acceptance in the law.  First came the landmark U.S. Supreme Court decision in NCAA v. Alston, 141 S. Ct. 2141 (2021), which held that the National Collegiate Athletic Association (NCAA) violated federal antitrust laws by prohibiting its member schools from providing student-athletes with certain education-related benefits. In his concurring opinion, Justice Kavanaugh went a step further and questioned whether the NCAA and universities can continue to justify not paying student-athletes for the revenues they generate. He also suggested that one mechanism for resolving compensation disputes between players and universities is by “engaging in collective bargaining.”

Then shortly after Alston, the NCAA suspended its rules prohibiting amateur athletes from profiting off of their name, image, and likeness (“NIL”)—a decision the NCAA made as several state laws throughout the country were set to grant NIL rights to players. As a result, student-athletes may now capitalize on their status to earn significant compensation in myriad ways, from endorsement deals to social media revenues to private tennis lessons.

GC Abruzzo’s memorandum builds on these shifting views and states her position that student-athletes should receive the protections afforded to employees under the NLRA. This includes the right to form and join unions and require their schools to bargain collectively over the terms and conditions of their employment. Granting athletes NLRA protections would also subject schools who interfere with these rights to liability for unfair labor practices, and it could force them to defend disciplinary decisions under contractual grievance procedures.

Importantly, GC Abruzzo’s memorandum is not binding authority; it does not reflect a change in the NLRA. In order for student-athletes to achieve the protections she seeks, GC Abruzzo’s position will need to be considered and adopted by the Board itself. This is typically done through administrative litigation, which requires plaintiff/student-athletes to assert their employee status before the Board in the right type of case. That process may take many months or even a couple of years, but it is likely coming soon. When we reach that point, it will be interesting to see if and how the NLRB draws the lines.

For example, would the protections be limited to major revenue-generating sports at a handful of Division I schools, or would they apply to all sports at all private universities?  Would they apply to student-athletes or also to student interns, managers, and athletic trainers?  Would they be limited to sports or include non-athletic extra-curricular activities? And would bargaining subjects be limited to major decisions like revenue sharing and scholarship allocation, or would they include starting line-up decisions and playing time allocations? These are just a few of the complex issues the Board would need to resolve in order to answer the ultimate question: that is, can employee protections feasibly be granted to student-participants in extracurricular activities in a way that promotes stable labor relations?

It will also be  interesting to see whether GC Abruzzo’s memorandum and these other pro-athlete/employee decisions gain traction in other contexts. Although athletes at private universities may soon be considered employees under the NLRA, the NLRB only has jurisdiction over private universities. Will state agencies follows suit and grant similar protections to students at public universities like Ohio State? And will student-athletes be granted minimum-wage rights under the FLSA, or leave rights under the FMLA?  Such claims have been uniformly rejected by courts so far (including in the recent decision of Dawson v. National Collegiate Athletic Association, 932 F.3d 905 (9th Cir. 2019), wherein the court held that a USC football player was not an employee for wage and hour purposes).  But if these recent decisions signal anything, it’s that the student-athlete employment game is far from over; it may just be beginning.

On September 22, 2021, the U.S. Department of Labor (“DOL”) finalized a regulation which allows for penalties up to $1,100 per violation, plus back wages owed, whenever the DOL finds tipped workers have been cheated of tips.  Previously, a Trump Administration rule, which was never finalized, only allowed fines to be imposed for “repeated and willful” violations.  The new penalty provisions apply when employers, supervisors or managers keep tips intended for tipped workers such as servers, bartenders and the like.  The removal of the “repeated and willful” language from the text of the final rule presumably provides the DOL more flexibility to determine when penalties are warranted.  The final rule also addresses circumstances when supervisors or managers are permitted to retain tips and when they can contribute tips to a tip pool.  The final rule goes into effect November 23, 2021.

On Thursday September 9, 2021, President Biden outlined a multi-pronged plan to reduce the number of unvaccinated Americans in the United States, among other COVID-related initiatives.  In addition to issuing an Executive Order implementing vaccination requirements for federal workers and requiring vaccinations for healthcare workers, President Biden also directed The Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule impacting private employers with more than 100 employees.  The rule will be implemented through the Emergency Temporary Standard (“ETS”), which expedites the otherwise years-long process of developing standards in the event workers are exposed to “grave danger” and the ETS is needed to protect them.  The anticipated ETS will require a “fully vaccinated” workforce or require unvaccinated workers to produce a negative test result on at least a weekly basis before coming to work.

No other specifics of the yet-to-be-implemented ETS have been shared by the Administration or OSHA, but the following are questions beleaguered and financially stretched employers hope will be addressed by OSHA in the coming weeks, particularly given current delays and restricted availability of testing across the country:

  1. Who counts towards the 100+ employee threshold? Will OSHA use the same “Controlled Group” definition as in the Families First Coronavirus Response Act (“FFCRA”)? Should only W-2 employees be counted?  Should work-from-home/remote workers be included?
  2. Will weekly testing an option be available to all employees or only those who demonstrate a valid medical or religious exemption? In other words, will the ETS allow employers to choose between mandatory vaccination vs. mandatory testing in order to retain reticent workers and maintain already precarious workforces?
  3. Will implementing the vaccine mandate be subject to mandatory bargaining under Collective Bargaining Agreements?
  4. Who will be responsible for the cost of COVID-19 testing, employers or employees?
  5. Will the federal government provide financial assistance to pay for additional testing costs?
  6. Will time spent getting weekly COVID tests (and waiting for test results before being permitted to come to work) be compensable time under the Fair Labor Standards Act?
  7. What test results will be acceptable (at-home, rapid, or PCR)?
  8. What information will employers be permitted to ask employees to determine the authenticity of test results and vaccine status?
  9. How will OSHA define “per violation” for purposes of levying citations and the associated $14,000 penalty (one per employer, one per facility, one per unvaccinated/untested employee)?
  10. Will the ETS modify OSHA’s recordkeeping requirements that employee medical records be maintained by employers for the duration of employment plus 30 years thereafter?
  11. Will the ETS be prospective or retroactive such that those already vaccinated will be required to demonstrate proof of vaccination?
  12. Will this regulation cover future vaccine boosters the Administration has stated it is prepared to begin offering a week from today on September 20, 2021?
  13. Will employers be required to provide vaccination incentives to employees under any existing incentive policies?

Although the White House has indicated more guidance will be forthcoming by September 24, 2021, the ETS is not expected for at least a few weeks, no effective date for the ETS or deadlines for vaccination have been offered.  Legal challenges are also being weighed that may delay, stay or vacate the rule once it is issued.

Frantz Ward will provide updates when the ETS is issued.  In the meantime, employers should seek counsel who are familiar with dealing with OSHA, encourage employees to become vaccinated before the ETS is issued, examine their record retention and accommodation policies, and begin to evaluate internal HRIS systems and capabilities for data collection and tracking purposes.

NLRB General Counsel Jennifer A. Abruzzo followed up her 10(j)-warning shot with another admonition, this time encouraging regions to request the “full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”

General Counsel Abruzzo began her September 8, 2021, Memorandum (GC21-06) by reminding the public that the Board has expressed “a willingness to explore a new make-whole remedy to those traditionally ordered: an award of consequential damages to make employees whole for economic losses (apart from the loss of pay or benefits) suffered as a direct and foreseeable result of an employer’s unfair labor practice.” Consequential damages, however, are not the only new remedies she hopes will be utilized in the near future. Indeed, Memorandum GC21-06 outlined extensive new potential remedies that General Counsel Abruzzo wants to explore in three major unfair labor practice areas, those being; (1) alleged wrongful terminations, (2) organizing campaigns issues, and (3) refusals to bargain. Per the General Counsel, potential remedies that Regions should seek include:

Remedies in Cases Involving Unlawful Firings:

  • Consequential damages, Front pay, Liquidated backpay;
  • Remedies previously highlighted in GC Memorandum 15-03, such as notice readings, publication of the notice in newspapers, and/or other forums, training for employees on their rights under the Act, training for supervisors and managers on compliance with the Act, Gissel bargaining orders, union access to employee contact information, reimbursement for organizing or bargaining expenses, consequential damages, instatement of qualified referred candidates, and any other remedies that may be appropriate in a particular case; and,
  • Compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and any other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.

Remedies in Cases Involving Organizing Campaign Issues:

  • Union access;
  • Reimbursement of organizational costs;
  • Reading of the Notice to Employees and the Explanation of Rights to employees by a principal or, in the alternative, by a Board Agent, in the presence of supervisors and managers, with union representatives being permitted to attend all such readings, or, where appropriate, video recording of the reading of the notice and the Explanation of Rights, with the recording being distributed to employees by electronic means or by mail;
  • Publication of the notice in newspapers and/or other forums (such as online publications and websites maintained by an employer, including social media websites), chosen by the Regional Director and paid for by the employer, so as to reach all current and former affected employees, as well as future potential hires;
  • Visitorial and discovery clauses to assist the Agency in monitoring compliance with the Board’s Orders;
  • Extended posting periods for notices where the unfair labor practices have been pervasive and occurred over significant periods of time;
  • Distribution of notices and the Board’s Orders to current and new supervisors and managers
  • Training of employees, including supervisors and managers, both current and new, on employees’ rights under the Act and/or compliance with the Board’s Orders;
  • Instatement of a qualified applicant of the union’s choice in the event a discharged employee is unable to return to work; and,
  • Broad cease-and-desist orders requiring violating parties to cease and desist “in any other manner” from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.

Remedies in Cases Involving Refusals to Bargain

  • Bargaining schedules;
  • Submission of periodic progress reports to the Agency on the status of bargaining;
  • 12-month insulation periods, including extensions of the certification year, from the date an employer commences compliance with its bargaining obligations pursuant to a Board’s Order, during which a union’s status as bargaining representative may not be challenged;
  • Reinstatement of unlawfully withdrawn bargaining proposals;
  • Reimbursement of collective-bargaining expenses;
  • Engagement of a mediator from the Federal Mediation and Conciliation Service (FMCS) to help facilitate good-faith bargaining between parties;
  • Training of current and/or new supervisors and managers in cases involving failures to bargain; and,
  • Broad case-and-desist orders.

While the General Counsel’s list of potential new remedies is extensive, it is not exhaustive. The General Counsel took care to indicate that she, and therefore the Board, will spare no level of creativity to provide what she considers “the most effective relief possible.” The listed potential remedies, however, show that the Board looks to become deeply involved in the labor management relationship when imposing unfair labor practice penalties. These remedies have the potential to not only financially impact employers, but also impact the level of control employers have going forward. Employers should take notice of the General Counsel’s must recent warning shot.

If you have any questions regarding the General Counsel’s memorandum, potential remedies, or issues related to labor and employment law, feel free to contact an attorney in Frantz Ward’s Labor & Employment Practice Group.

In July, the Department of Labor (“DOL”) announced a Notice of Proposed Rule Making to develop enforcement and implementation procedures for President Biden’s Executive Order 14026. Executive Order 14026, which was signed on April 27, 2021, requires federal contractors to pay their employees at least $15.00 per hour beginning January 30, 2022. Beginning January 1, 2023, and each year annually, the minimum wage for employees of federal contractors will increase based upon inflation. The current minimum wage for federal contractor employees is $10.95.

The minimum wage for federal contractors was last raised in January 2015 following the implementation of President Obama’s Executive Order 13658, which raised the wage to $10.10 with an annual increase based upon inflation.

The DOL’s proposed rule includes the following:

  • An anti-retaliation provision;
  • DOL procedures for addressing employee complaints, investigations, and adjudication;
  • A clause to be included in all covered contracts; and
  • A poster outlining the updated minimum wage to be posted in a conspicuous place.

The public comment period for the proposed rule closed on August 23, 2021, paving the way for finalizing the rule. The final rule is expected to be released by the DOL in November 2021. As currently written, the rule will only apply to contracts entered, renewed, or extended after January 30, 2022. Accordingly, federal contractors with current contracts may not need to implement the wage increase immediately.

Almost immediately after the FDA issued full approval of the Pfizer/BioNTech COVID-19 vaccine earlier this week, employers began rolling out mandatory vaccination policies. These policies are raising a variety of legal and practical questions for employers, including whether employers are required to compensate employees for time spent getting the vaccine.

Although the answer to this question remains unclear in some states, it is crystal clear in others. In California, for example, the Labor Commissioner issued guidance specifically requiring employers to pay employees for time spent getting a mandated test or vaccine. This guidance explained in part that, “If the employer requires an employee to obtain a COVID-19 test or vaccination . . . then the employer must pay for the time it takes for the testing or vaccination, including travel time.” https://www.dir.ca.gov/dlse/COVID19resources/FAQs-Testing-Vaccine.html

A related question is whether employers have to have to pay for the actual vaccine if they require their employees to get it. California law clearly requires employers to pay this cost, but the law in many other states remains unsettled.

State legislatures and administrative agencies will almost certainly face pressure to provide clear guidance on these and other COVID-19 vaccine issues. Until that happens, employers are wise to proceed with caution.