Hunton Employment & Labor Perspectives

On August 10, 2021, the Third Circuit in Travers v. Federal Express Corporation revived a class action lawsuit under the Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”), holding that employers must provide servicemembers with pay during military leave when employers pay employees on “comparable types of leave.”

On June 1, 2021, the U.S. Court of Appeals for the D.C. Circuit overturned a NLRB determination that a manager’s incorrect blaming of a union for discrepancies in an employee’s paid-leave time constituted an unfair labor practice. The pivotal issue was whether the manager’s statements had a reasonable tendency to interfere with employees’ labor rights. As discussed below, the D.C. Circuit rejected the NLRB’s determination that the manager’s statements had a reasonable tendency to interfere with employees’ labor rights, reasoning that the manager’s misstatements were lawful expressions of the employer’s opinions.

California recently enacted Assembly Bill 1867, requiring all private employers with 500 or more employees to provide COVID-19 supplemental paid sick leave for their California employees.  Employers must begin providing supplemental sick leave, under the new law, no later than September 19, 2020.  The law will remain in effect until the later of December 31, 2020 or expiration of any federal extension of the Families First Coronavirus Response Act.

On August 3, 2020, the United States District Court for the Southern District of New York struck down portions of the DOL’s Final Rule regarding who qualifies for COVID-19 emergency paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), collectively referred to at the Families First Coronavirus Response Act.

Of particular importance to employers, the Court invalidated two provisions of the DOL’s Final Rule pertaining to: (1) conditioning leave on the availability of work and (2) the need to obtain employer consent prior to taking leave on an intermittent basis.

The COVID-19 pandemic has exposed employers to an influx of novel employment law issues.  Many employers already have experienced an uptick in related internal complaints or litigation. Below we identify five particular employment law liabilities employers may be exposed to once the dust settles from the pandemic.

Wage and Hour Claims

The shift to telework during the coronavirus pandemic has forced many employers to set aside traditional tracking mechanisms that are used to determine when employees take breaks and clock off. As a result, employers may be vulnerable to employee claims that employers failed to provide and/or pay for all required meal periods, rest breaks, and overtime for remote and on-site employees. To proactively minimize potential wage and hour related claims, employers should ensure to the extent possible that employees are properly compensated for all hours worked. In addition, employers can minimize minimum wage violations by complying with applicable federal, state and local laws that may require employers to reimburse employees for certain expenses incurred in order to telework, such as cell phone, high-speed internet, or other equipment costs. Moreover, employers should consider encouraging managers to execute best supervisory practices in the telework environment, including setting clear expectations with employees, conducting regular check-ins, promptly addressing issues, and making other efforts to maintain clear communication.

Los Angeles (LA) Mayor Eric Garcetti has issued an emergency order modifying the City’s recently passed COVID-19 supplemental paid sick leave requirements.  The prior ordinance, adopted on March 27, 2020, by the LA City Council, had required LA employers with 500 + employees nationally, to provide up to 80 hours of supplemental paid sick leave.  In a nod to the instrumental role employers will play in the City’s revival in the aftermath of the coronavirus crisis, Mayor Garcetti modified the paid leave requirements in a number of key ways.

The Department of Labor issued its Final Rule regarding implementation of the Families First Coronavirus Response Act on April 1, but it does not resolve all outstanding questions for employers.

The Final Rule provides points of clarity on issues such as the definitions of health care provider and emergency responders, the small business exemption to the Act, and the effect of state or local stay-at-home orders on an employee’s right to take leave.  But it also contains some apparent internal inconsistencies, including whether employers can require employees to use employer-provided paid time off and partially paid Emergency Family and Medical Leave Expansion Act leave (“Emergency Family Medical Leave”) concurrently.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law on March 27, 2020 as a federal response to the economic crisis caused by the Coronavirus. As we previously reported, the Act greatly expands unemployment benefits for workers affected by the COVID-19 pandemic, but many questions remained about how the Act would be applied.  The DOL recently issued guidance answering some of these questions.

On March 27, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES”), an unprecedented $2 trillion economic rescue plan in response to the COVID-19 pandemic.  Our firm has previously summarized the CARES Act’s tax and health and retirement benefits provisions here and here.  Below, we summarize additional aspects of the Act that impact the workplace.  It is important to note that there are a number of open questions presented by this legislation, which could impact employers’ structure for layoffs, furloughs, and pay reductions.  We anticipate the various governmental agencies charged with implementing the CARES Act will be issuing guidance soon, and we will provide updates as appropriate.

As the national response to COVID-19 intensifies, states and localities across the country have announced school closures.  Employers should review their state and local laws to determine whether such closings may trigger an employee’s right to take job-protected, or paid leave.

State and Local Leave Allowances for School Closings

Many states have laws that require employers to offer employees paid sick leave. In each state, there are different qualifying reasons that entitle employees to take this leave.  What employers may not realize, is that some states require that employees be allowed to use paid sick leave during certain school closing scenarios.  In at least seven states, school closings caused by a public health emergency are a qualifying reason to take paid sick leave.  Those states are Arizona, Michigan, New Jersey, Oregon, Rhode Island, Vermont and Washington.

Georgia’s “kin care law” went into effect on July 1, 2017.  Under this new law, Georgia employers with 25+ employees must permit employees who work 30+ hours per week to use up to five hours of their earned sick leave to take care of immediate family members.  “Immediate family member” is defined as the employee’s child, spouse, grandchild, grandparent, parent, or dependents listed on the employee’s most recent tax return.

Several new and expanded paid family leave programs signed into law this month present employers with administrative challenges and concerns about business productivity.

California

California’s Paid Family Leave (“PFL”) program, which took effect in 2004, was the first of its kind in the nation. Funded by employee contributions to the State Disability Insurance program, and administered through that program, PFL in California provides employees with partial wage replacement (currently 55%, up to a weekly maximum of $1,104 in 2015) for a period of up to six (6) weeks in order to bond with a new child, or to care for a parent, child, spouse or domestic partner with a serious health condition. This wage-replacement program does not guarantee job protection, so normally it is taken concurrently with job-protected leave under the federal Family and Medical Leave Act (“FMLA”) or its California analog, the California Family Rights Act.

Earlier this month, the San Francisco Board of Supervisors approved six weeks of fully-paid leave for new parents, the first city-wide legislation of its kind in the nation. Parents are entitled to the benefit if they have been employed by the employer for at least 180 days, work at least eight hours per week within the city or county of San Francisco, spend at least 40% of their hours per week working within the city or county of San Francisco, and are eligible to receive paid family leave from the State of California under the California Paid Family Leave law for the purpose of bonding with a new child. The new law requires that employers make up the difference between the benefit provided by the California Paid Family Leave law and 100% of the employee’s normal gross weekly wage.