With the Democratic Senatorial wins in Georgia, it is now clear that in addition to Executive Orders and regulatory changes the new President is likely to make legislative changes that employers will need to prepare for. The President-elect’s agenda was clearly articulated in his campaign platform, indicating that he would:

  • Check the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor law
  • Encourage and incentivize unionization and collective bargaining
  • Ensure that workers are treated with dignity and receive the pay, benefits and workplace protections they deserve

Employers should expect that President-elect Biden will move swiftly in those areas where he is able to initiate changes designed to achieve these goals. Some changes will take more time than others, but clearly a far more employee/union friendly administration will dramatically change the playing field on the labor front.

Those trying to predict the likely focus of the Biden administration need only look to the last several years of the Obama administration, including proposed legislation, such as the “Protecting the Right to Organize Act” (the “PRO Act”) for a clear indication of where changes will be made.  Likely proposals include legislation that would allow for unionization based on card checks, banning of employer captive audience meetings during union representation campaigns, mandatory mediation and interest arbitration for first contract collective bargaining, and potential liability for employers who commit unfair labor practices under the National Labor Relations Act.  Given the results in Georgia, it is likely that the PRO Act or some variation of that Act will be on the new President’s early agenda.

Other pro-employee initiatives will likely take longer.  The current Republican majority on the National Labor Relations Board (the “Board”) will remain in place at least until August of 2021, allowing that majority the opportunity to put in place some of the Trump-era changes they have sought through rulemaking before President-elect Biden will have an opportunity to name a majority of Democratic members to the Board.  While there had been speculation about the possibility of President-elect Biden attempting to replace the current NLRB General Counsel, Peter B. Robb, most commentators believe that such a move could backfire and that it is likely that General Counsel Robb will remain in place for the balance of his term (November 17, 2021), directing the enforcement activity of the Board.

Despite a delay in initiating change at the NLRB, change is coming and it is likely that a reconfigured Board will return to many of the Obama-era standards.  Changes likely to be seen include yet another attempt at defining joint employer responsibility, composition of bargaining units, and utilization of company communication platforms such as e-mail to enhance union organizing  efforts.

In addition to these changes, President-elect Biden’s naming of former Boston Mayor Marty Walsh, a union member for  more than 30 years and former President of the Laborers Union, Local 223, as his Secretary of Labor, sends a clear message that his Department of Labor (“DOL”) will be focused on significant pro-employee changes.  Anticipated changes may include:

  • Minimum Wage – President-elect Biden has called for a $15 federal minimum wage
  • Overtime – The DOL is likely to revive an Obama era overtime rule that had raised the minimum salary requirement for exempt status
  • Worker Classification – President-elect Biden and his DOL are likely to support an aggressive prosecution of employers who violate labor laws, including those who intentionally misclassify employees as independent contractors
  • Gig Workers – Employer classifications of “gig economy” workers as independent contractors has President-elect Biden’s attention as well. He has previously articulated his support for utilizing a strong three prong “ABC Test” to distinguish employees from independent contractors.  The future President has stated that he intends to “work with Congress to establish a federal standard modeled on the ABC Test for all labor, employment and tax laws.”  Companies like Uber and Lyft as well as other gig economy employers will need to watch this area very closely for further developments
  • Enhanced Enforcement of OSHA Requirements. In addition to greater enforcement of existing OSHA guidelines and regulations, employers should expect new guidance and regulations with respect to COVID related protections
  • Expansion of Paid Leave for Employees – The DOL is likely to propose a continuation of paid leave during the COVID pandemic (it expired 12-31-20), as well as a legislative effort to require paid family medical leave
  • Arbitration Agreements – Finally, mandatory arbitration agreements for employees are a likely target of the new administration. President-elect Biden has stated his intention to enact legislation prohibiting employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their rights to class action lawsuits or collective litigation.  This, of course, parrots some of the state legislation already in place

As discussed above, the new administration will likely implement an aggressive and targeted labor policy to address each of the items that President-elect Biden has indicated are linchpins in his stated agenda of “limiting the abuse of corporate power, encouraging and incentivizing unionization and collective bargaining, and ensuring that workers are treated with dignity and receive the paid benefits and workplace protections they deserve.”  Employers and their counsel will need to monitor each of these developments closely and perhaps, in the not too distant future, change, yet again, their employee policies and handbooks to reflect a “sea change” in labor policy.

Last week, Ohio House Bill 352 (the “Employment Law Uniformity Act”) was signed into law. The Employment Law Uniformity Act, updates Ohio’s anti-discrimination statute, shortens the relevant statutory periods of limitation, and prevents the simultaneous filing of administrative and judicial actions, among other things. The act also codifies an employer’s affirmative defense for sexual harassment hostile work environment claims and limits individual supervisory liability.

Administrative Filing

Before the Employment Law Uniformity Act, employees could sue their employer without filing a charge with the Ohio Civil Rights Commission (“OCRC”) or Equal Employment Opportunity Commission (“EEOC”). Employees now, generally, must first file a charge with the OCRC, and receive a notice of the right to sue from the OCRC, or request a notice of the right to sue from the OCRC, before suing their employer for discrimination.

Affirmative Defense

The Employment Law Uniformity Act codifies the affirmative defense available to employers when an employee claims that he or she suffered a hostile work environment based on sexual harassment where the hostile work environment was created by a supervisor. To use the affirmative defense, the employer must prove:

  • The employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior.
  • The employee alleging the hostile work environment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

This affirmative defense is not available to an employer if the supervisor’s harassment resulted in a tangible employment action against the employee (i.e. firing). This affirmative defense existed previously in common law but has now been codified – meaning employers should continue to require that employees promptly report claims of discrimination and harassment, and should continue to diligently investigate such claims.

Statute of Limitations

The statute of limitations for claims of discrimination is now two years whereas before the statute of limitations could have been as long as six years. This means employees have less time to file a charge or lawsuit claiming discrimination.

Supervisor Liability

In 1999, the Ohio Supreme Court found that supervisors can be individually liable for damages under Ohio’s anti-discrimination laws. The Employment Law Uniformity Act limits this individual supervisory liability. Under the act, a supervisor is only liable for claims of retaliation, “aiding and abetting” in discrimination, or other common law torts.

Takeaways

While the Employment Law Uniformity Act makes it more difficult for a plaintiff to bring a claim of discrimination, it does not eliminate such claims – meaning that employers should continue to enforce their anti-discrimination policies, promptly investigate claims of discrimination, and continue to train employees and supervisors in order to prevent discrimination and harassment from occurring in the workforce.

The transportation industry awaits a decision by the Ninth Circuit in Commissioner for the State of California v. Federal Motor Carrier Safety Administration, Nos. 19-70413, 18-73488, 19-70323 and 19-70329, as to whether the Federal Motor Carrier Safety Administration’s Order in December 2018 that California’s meal and rest break rules are preempted by the Federal Motor Carrier Safety Regulations will stand.

Federal hours of service regulations generally limit truck drivers to 11 hours of driving time within 14 hours of on-duty time and require 10 consecutive hours of rest after that period.  However, California requires that employees be provided 30 minutes of mealtime if they work 5 hours a day, and another 30 minutes of mealtime if they work over 10 hours a day. California also has rest break requirements. Up to December of 2018, the FMCSA had held that its rules do not preempt California’s state laws because they constituted laws of general applicability, not laws aimed at commercial motor vehicle safety. However, the FMCSA reversed course in 2018.

Oral arguments were heard in November 2020. Although the Court seemed persuaded by the Plaintiffs, this question will ultimately turn on Chevron deference provided to agencies to interpret statutes. Whatever the decision, it will have wide-ranging consequences as California has some of the biggest ports in the U.S., the FMCSA also issued a similar order in November 2020 regarding Washington’s meal and rest break laws, and states seem to copy California regulatory schemes.

For more information on this and other similar issues affecting the transportation industry, do not hesitate to contact Klevis Bakiaj or another Frantz Ward Transportation Law attorney.

Originally effective on April 1, 2020, the Families First Coronavirus Response Act (“FFCRA”) required certain employers with fewer than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The FFCRA specified an effective date through December 31, 2020. While many anticipated that Congress would take action to extend the law’s effective date beyond the end of 2020, this never occurred.

Recently, the DOL issued guidance clarifying that employers are not required to provide additional leave under the FFCRA after December 31, 2020, but they may choose to do so through March 31, 2021, and still receive tax credits for paid sick leave. The DOL supplemented its previously issued Questions and Answer guidance, explaining that employers can voluntarily provide paid leave until the end of March:

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave.  The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020.  Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress.  The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021.  However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Thus, employers have discretion, but not an obligation, to provide additional FFCRA leave (and receive the resultant tax credit) to employees who had not previously exhausted their FFCRA leave entitlement.

In November, the Ohio BWC approved Governor DeWine’s request to send another $5 billion in dividends to Ohio employers. The dividend payments come in the form of paper checks, which the state began mailing out to employers on December 10, 2020, or as credits to employers’ accounts for those employers with outstanding balances owed to the BWC.

These dividend returns are not solely a COVID-19 relief effort; any given year, the Ohio BWC may return dividends to employers based on investment returns on employers’ premiums and the relative number of injury claims for that year. In the 2018 fiscal year, for example, the BWC issued a $1 billion dividend to employers, which amounted to approximately 66% of employers’ annual premiums paid for the prior policy year. In 2019, the BWC returned approximately $1.3 billion to employers, or approximately 85% of the annual premium for the prior policy year.

The amount this year is clearly much higher than years past, however, due in no small part to the COVID-19 pandemic. The $5 billion December dividend brings the total dividends returned to Ohio employers in 2020 to nearly $8 billion, as the BWC had already returned $1.54 billion in late April and then another $1.34 billion in October. The December payment alone amounts to a whopping 372% of premiums paid for the 2019 policy year—the policy period from July 1, 2019 to June 30, 2020 for private employers and the policy period from January 1, 2019 to December 31, 2019 for public employers. This reflects not only the BWC’s desire to assist Ohio employers during a time of particular financial hardship, but also 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.

To be eligible for the dividend return, employers need 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 dividend.  As with previous dividend payments, if an employer has an outstanding balance with the BWC, the dividend will be applied to that first, then a check will be issued for any remainder.

A FAQ for employers on the Ohio BWC website can be found at: https://www.bwc.ohio.gov/downloads/blankpdf/5BillionDividend-FAQ.pdf.

On December 16 the EEOC updated its guidance regarding the COVID-19 pandemic to include questions and answers regarding the COVID-19 vaccination. Per the guidance, employers may mandate employees receive the vaccine, but employers who do so, must keep in mind employment non-discrimination laws. Noteworthy provisions of the updated guidance are summarized below:

  • Disability-related considerations:
    • The administration of the vaccine by an employer or a third party contracted by the employer is not a “medical examination” as defined by the ADA.
    • Pre-screening vaccination questions are likely to seek information about employees’ disabilities and, therefore, are likely “disability-related” inquiries. If an employer requires employees to receive the vaccine from the employer or a contracted party, the pre-vaccination questions must be “job-related and consistent with business necessity.”
    • Requiring an employee to provide proof that he or she received the vaccination is not a disability-related inquiry.
    • If an employee is unable to receive the vaccine due to a disability, the employer must determine whether the unvaccinated employee poses a “direct threat” at the worksite. If the employee does not pose a direct threat, then the employer may exempt the employee from the vaccination requirement. However, if the unvaccinated employee poses a direct threat, the employer must provide a reasonable accommodation for the disability unless such accommodation would pose an undue hardship.
  • Religious Considerations:
    • If an employee is unable to receive the vaccine due to a sincerely held religious belief, the employer must provide a reasonable accommodation for the religious belief unless it would pose an undue hardship. Unless the employer has an objective reason for questioning the employee, the employer should assume that the request for accommodation is based on a sincerely held religious belief.
  • If an employee is unable to receive the vaccine for disability-related or religious reasons, and the employer is unable to provide a reasonable accommodation, then employers may exclude the employee from the workplace.

On Monday, December 14, electors will gather in every state and in Washington D.C. to cast their Electoral College votes. The outcome of that vote will almost certainly start the final countdown toward significant changes in labor and employment law under the incoming Biden administration. While we do not yet know the full extent of these changes, commentators predict that some of the most significant may include the following:

  • Overtime Changes – The Department of Labor under the Biden Administration is expected to increase the minimum salary level for most exempt employees to as much as $47,000, while also changing the duties tests for the executive, administrative and professional exemptions.
  • Union Protections – President-elect Biden has expressed support for federal legislation that will make it much harder for employers to resist union organizing efforts, including the Protecting the Right to Organize Act, which the U.S. House of Representatives passed during 2020. Among other things, this Act would prohibit right to work laws, bar employers from permanently replacing strikers and allow employees to sue their employers in federal court over alleged unfair labor practices.
  • Minimum Wage Adjustments – Depending upon the outcome of the upcoming Georgia Senate run-off election, Congress under the Biden Administration may revisit the Raise the Wage Act that the House of Representatives passed in 2019. This Act would increase the minimum wage to $15 per hour over a six-year period and would index it to inflation. The Act would also phase out the reduced minimum wage that certain tipped employees currently receive.
  • Immigration Changes – The Biden administration is expected to make it easier for employers to add skilled foreign labor to their workforces by adjusting the limits on high-skilled visas and modifying visa limits linked to specific countries. The Biden administration is also expected to restore the DACA and TPS programs.
  • Equal Employment Opportunity Laws – Whether through legislation, executive order or action by agencies such as the EEOC, the Biden Administration is expected to enforce the workplace EEO laws aggressively. Enforcement priorities will likely include the prohibitions on discrimination based on sexual orientation and gender identity.
  • Paid Leave Laws – President-elect Biden has long supported the expansion of paid leave for employees in the public and private sectors, and although its may face stiff resistance in Congress, many expect that the administration will press for 12 weeks of paid leave for many of the events that fall under the existing unpaid FMLA provisions.

The coming year is sure to be a time of change, and employers will be well-served to stay informed and adjust their policies as necessary.

With COVID-19 cases continuing to rise, the Occupational Safety and Health Administration (OSHA) has issued new respiratory protection guidance focused on protecting workers in nursing homes, assisted living and other long-term care facilities (collectively “LTCFs”).

OSHA’s new guidance stresses the significance of proper and effective Personal Protective Equipment (“PPE”) when dealing with COVID positive patients and residents, indicating that cloth facemasks and face shields are not PPE.

Most significantly, however, the guidance specifies that employees who are in close contact (less than 6 feet) with a LTCF resident with suspected or confirmed coronavirus infection must use a NIOSH-approved N95 filtering facepiece respirator or equivalent or higher-level respirator, as required by OSHA’s Respiratory Protection standard. Simply put, any staff (whether clinical or not) in close contact (less than 6 feet) with residents with confirmed or suspected COVID-19 likely need to be wearing an N95 mask. However, understanding the potential logistical challenges with obtaining N95s, OSHA indicates they will exercise enforcement discretion as it relates to N95 usage, but only if an employer can demonstrate and document good faith efforts to comply with OSHA’s requirements.

Finally, while the new guidance is heavily focused on respiratory protection, OSHA still takes care to reemphasize its traditional adherence to a “hierarchy of controls” to mostly protect employees working in LTCFs where COVID-19 may be prevalent, encouraging social distancing, good hygiene, implementing good ventilation systems and continuously disinfecting surfaces. OSHA continues to view PPE as the last line of defense, preferring traditional engineering and administrative controls to assist in protecting workers.

COVID-19 has imposed fresh and difficult challenges on employers, including the need to balance new legislative compliance with all that existed before the Year of the Pandemic. Before the end of the 2020 calendar year may be welcomed, however, employers in certain states should remain cognizant of approaching sexual harassment training deadlines. Although sexual harassment training is now mandated by statute in eight states (including the District of Columbia for specific industries), only one of these states – Connecticut – has temporarily extended the time to comply with its training mandates (currently February 9, 2021). The December 31, 2020 deadline for Illinois and New York (annual training) and the January 1, 2021 deadline for California remain in place.

Although each state has its own requirements regarding the duration, frequency, content, format and method (i.e. in-person) of anti-harassment training, as well as recordkeeping and other obligations, employers in all states are cautioned that effective sexual harassment training involves more than a checklist of definitions conveyed via PowerPoint slides. Training should promote interactivity and participation (including an opportunity for Q&A) while also providing examples, educating employees on the employer’s specific reporting process, and raising awareness regarding the different forms of harassment and the consequences of misconduct. Workplace culture topics, including diversity and inclusion and unconscious bias, should also be explored via an easily accessible online/mobile platform, given many employees’ current work from home arrangements.

In a previous post on July 22, 2020, we reported on the Equal Employment Opportunity Commission’s (“EEOC”) Pilot Program which modified certain aspects of the EEOC’s mediation program. In October, 2020, the EEOC announced proposed changes to its conciliation process.  Conciliation differs from mediation in that mediation provides both parties an opportunity to mediate and potentially resolve a charge of discrimination shortly after it is filed and before the EEOC begins its investigation. Conciliation is a voluntary alternative to litigation which arises after the EEOC has investigated a charge and determined reasonable cause exists that an employer has discriminated against an employee.

Between 2016 and 2019, the EEOC conciliation process effectively resolved only 41.23% of discrimination charges where a reasonable cause finding was made against an employer. In an effort to improve the conciliation process, the EEOC is proposing amendments that will increase the amount of information available to an employer to make settlement of charges more likely.  In particular, a brief summary of the EEOC’s proposed amendments are as follows:

  • The EEOC will provide employers with a written summary of known facts and non-privileged information the EEOC relied on in making its findings. This includes identifying aggrieved employees for whom the EEOC is seeking relief.  Additionally, the EEOC will have discretion to provide detailed information to an employer such as identities of alleged harassers or supervisors and if a class action is being pursued, the estimated size of the proposed class.
  • The EEOC will provide a summary to the employer of the legal basis for a finding of reasonable cause. If there was any doubt that reasonable cause existed to believe discrimination occurred, the EEOC will explain how reasonable cause existed despite this information. The EEOC may also provide a response to any defenses raised by an employer.
  • The EEOC will provide employers with a basis for a request for monetary relief including any calculations underlying the proposal and will provide the employer at least 14 calendar days to respond to the initial settlement proposal.

The EEOC’s proposed rules are subject to comment from interested parties and have not yet been adopted.  If the EEOC implements these new amendments, employers are likely to have a better understanding as to how the EEOC reached its determination, as well as its rationale for any relief it is seeking on behalf of an aggrieved employee. Previously, the EEOC was under no obligation to provide this information, which often left employers with insufficient information to determine if a settlement should be considered prior to the EEOC filing litigation against the employer.