I recently provided insight for an article in SHRM that outlined the requirements for anti-harassment training programs in the workplace. On March 3, 2022, President Biden signed a law banning the enforcement of mandatory arbitration agreements for claims of sexual-assault and sexual-harassment in the workplace. Employers should consider updating any anti-harassment training programs in light of this new law.
Over the past two years, the pandemic has forced employers to navigate unchartered waters. The focus on health and safety, managing a remote workforce, and staying abreast of the evolving COVID-19-related guidance has left in-house counsel and human resources professionals with little time to focus on the fundamental steps essential to proactively and successfully manage employee issues. While the challenges associated with COVID-19 remain at the forefront of employers’ concerns, it is time to return to familiar waters and revisit some of the best HR-related practices.
We are excited to offer the final installment of this three-part series, both in-person and virtually, via webinar. For those local to the Nashville area, we invite you to join the Bass, Berry & Sims labor & employment attorneys for the in-person presentation where they will address best practices across a range of topics, including:
- The keys to performance management: establishing and managing performance expectations.
- Tips for managing difficult employees.
- Making termination decisions while ensuring compliance with legal requirements.
Over the past two years, the pandemic has forced employers to navigate unchartered waters. The focus on health and safety, managing a remote workforce, and staying abreast of the evolving COVID-19-related guidance has left in-house counsel and human resources professionals with little time to focus on the fundamental steps that are essential to proactively and successfully manage employee issues. While the challenges associated with COVID-19 remain at the forefront of employers’ concerns, it is time to return to familiar waters and revisit some of the best HR-related practices. We are excited to offer the second installment of this three-part series both in-person and virtually, via webinar. For those local to the Nashville area, we invite you to join us on April 28 for the in-person presentation where we will address best practices across a range of topics, including:
- Proper complaint intake and investigation planning practices.
- Best practices for conducting employee interviews.
- Managing the aftermath of the investigation, including potential disciplinary actions.
As employees are increasingly returning to the office, a new amendment to existing Tennessee law regarding vaccination further complicates the landscape for employers concerning COVID-19 vaccine mandates. See the full text of the amendment here.
Chapter 2 of Title 14 of the Tennessee Code, passed in November 2021 by the Tennessee Legislature, prohibits a private business, governmental entity, school, or local education agency from compelling or otherwise taking “adverse action” against a person to compel proof of having received a COVID-19 vaccination if the person objects to being vaccinated “for any reason.” See TCA 14-2-102(a). In other words, a private business in Tennessee cannot take adverse action against a person based on their vaccination status. As you may recall, Title 14 provided private businesses with an opportunity to request an exemption from this blanket restriction on their ability to require proof of vaccination by requesting the comptroller exclude the entity from the purview of this law.
While we are still in the first half of 2022, it has already been a busy year in terms of labor and employment developments for government contractors. For any companies doing work for the federal government, whether as prime contractors or as subcontractors, it can be challenging to keep up with the perpetually changing requirements, particularly when the changes occur this quickly.
These rapid-fire changes have introduced some onerous requirements with potentially very significant impacts. Just in the past few months, President Biden has issued Executive Orders (EOs) that:
- Directs an almost 50% increase in the minimum wage government contractors must pay their employees under a number of types of contracts.
- Mandates the use of union labor on large federal construction projects.
- Reinstitutes the requirement that federal contractors offer the right of first refusal to qualified service personnel who worked on predecessor contracts.
On February 18, President Biden announced that the COVID-19 National Emergency would continue beyond March 1, 2022, for up to another year. As a result of the continuing National Emergency, the “tolling” of several important deadlines applicable to health and welfare plans, as well as qualified retirement plans, will also remain in effect. This means plan sponsors and administrators should continue to apply these deadlines to affected individuals on a participant-by-participant basis for the foreseeable future.
The past few years have been unprecedented for everyone, but employers have faced particular challenges in trying to keep their employees healthy and able to continue working while simultaneously navigating a significant amount of new – and often confusing – legislation, mandates, and executive orders. Due to these challenges, the focus on best practices for day-to-day management of employees has fallen by the wayside for many employers. However, as we approach the two-year mark since the beginning of the COVID-19 pandemic and are beginning to see some light at the end of the pandemic tunnel, now is a great time for employers to revisit these best practices that will enable them to better manage their workforces and reduce the risk of employment-related litigation.
Education through Training
Educating employees through a well-developed training program is one of the best investments that employers can make in their workplaces, particularly in light of the current enforcement environment. The Department of Labor (DOL), the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC) are making concerted efforts to share information and work together, which requires employers to be very proactive in managing potential employee issues. The most effective way to do so is by providing training for all employees. Although the federal equal employment opportunity laws do not require employers to conduct anti-harassment/anti-discrimination training, several states and municipalities require and/or encourage training. Training is a great way to reinforce a company’s culture, establish clear expectations, and to educate all employees about acceptable conduct, work rules, and consequences for non-compliance with those rules. Training is also beneficial from a legal perspective to establish an affirmative defense in defending harassment lawsuits. Employers must take reasonable care to prevent harassment from occurring in their workplaces. This requires employers to have policies in place designed to prevent harassment, and courts also look at whether employers conduct anti-harassment training and the frequency and effectiveness of that training.
Over the past year, the Biden administration has issued a number of labor and employment executive orders applicable to government contractors. Some of those requirements are updates to Obama-era executive orders, while others are new. Together, these obligations, which include an almost 50% increase to the applicable minimum wage, can have a significant impact on contractors.
For any government contractors that have questions about these labor and employment changes, we hope you can join us for an overview of these recent developments.
On February 4, President Biden signed the Executive Order on Use of Project Labor Agreements for Federal Construction Projects, which mandates, with limited exceptions, that contractors and subcontractors working on federal construction projects valued at $35 million or more agree that for that project, the companies will “become a party to a project labor agreement [PLA] with one or more appropriate labor organizations.” A prior EO issued by President Obama, which the recent EO drew liberally from, encouraged the use of labor agreements on large construction projects, but we are not aware of any prior EO mandating their use.
The supposed authorization for the authority for this EO that will impact nearly 200,000 workers and an estimated $262 billion in federal construction projects, the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq. (FPASA), is the same statute that the White House claimed gave the president the authority to mandate that government contract employees be vaccinated. Numerous federal courts have already ruled that, at least in the vaccine context, FPASA does not mean what the president thinks it means, and construction companies may challenge the new EO on that basis. Our post from late January provides an overview of those decisions and the status of the vaccine mandates.
The vaccine mandates President Biden announced on September 9 have not aged well. Two are enjoined nationwide and a skeptical Supreme Court so undermined one that the government withdrew it, at least for the immediate future. Only one, an interim final rule applicable to employees at healthcare facilities receiving Medicare and Medicaid funds, is still standing. And it is questionable whether that mandate will remain in place once it becomes clear what the impact on operations will be on attrition caused by requiring personnel at those medical facilities to be vaccinated irrespective of their personal objections (those employees can apply for medical or religious accommodations, but the exceptions are narrow).
While three of the federal mandates are unraveling, contractors should understand their current status and continue to monitor them. Litigation is ongoing, so it is possible, although increasingly unlikely, that two of them – the federal contractor and federal employee mandates – will be back. In addition, several federal facilities are still requiring as a condition of entry that contractor employees working on those facilities sign certifications as to their vaccination status and, if not vaccinated, present a negative COVID-19 test within the prior 72 hours.