The National Labor Relations Board (NLRB) recently issued a decision radically changing how employers may use (or, more accurately, not use) nondisparagement and confidentiality clauses in severance agreements.
How to Develop a Non-Compete Implementation Strategy
I recently authored an article for Today’s General Counsel detailing options in-house attorneys might consider if their business does not have non-compete agreement in places but would like to develop one.
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Potential New DOL Classification for Independent Contractors
I recently authored an article for BenefitsPRO outlining guidance for employers ahead of the anticipated rulemaking from the Biden administration’s Department of Labor (DOL) related to the classification of independent contractors.
Continue Reading Potential New DOL Classification for Independent Contractors
New Amendment to the Tennessee COVID-19 Bill Provides Medical and Religious Exemptions to Certain Tennessee Employees Subject to Mandatory Vaccination Policies
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.
Labor & Employment Law Update: Continued COVID-19-Related Developments and Policy Guidance for Employers
Join us for a virtual seminar in which the firm’s labor & employment and employee benefits attorneys will discuss recent COVID-19-related announcements from the CDC, FDA and other relevant agencies, and the implications they have on how employers should structure policies and procedures moving forward.
In this session, we will provide guidance for navigating the
OSHA Issues Emergency Temporary Standard to Protect Healthcare Workers from COVID-19
In response to President Biden’s Executive Order issued on January 21, 2021, directing the Occupational Safety and Health Administration (OSHA) to take action to reduce the risk that workers may contract COVID-19 in the workplace, OSHA has issued an emergency temporary standard (ETS) to set forth guidelines to protect healthcare workers.
Effective June 21, 2021, the ETS applies only to settings where any employee provides healthcare services or healthcare support services. The masking, distancing, and barrier requirements under the ETS do not apply to settings with well-defined areas where all employees are fully vaccinated and there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present. OSHA has provided a flowchart to determine which workplaces are affected.
Develop and implement a COVID-19 plan: Employers are required to develop and implement a plan to combat COVID-19. This plan must be in writing if there are more than 10 employees. Employers must conduct hazard assessments for each specific workplace to identify potential COVID-19 hazards and designate a safety coordinator with the authority to ensure compliance with all aspects of the plan.
Limit and monitor points of entry: In workplaces where direct patient care is provided, employers must limit and monitor points of entry. Patients, clients, residents, and other visitors must also be screened and triaged. Other patient management strategies must be implemented per CDC guidance.
Oregon, Nevada and Illinois Further Limit Restrictive Covenants
The legislatures of Oregon, Nevada and Illinois recently placed additional limitations on restrictive covenants, particularly non-competition covenants.
Changes to Oregon Restrictive Covenants
Effective as to agreements entered into on or after May 21, 2021, Oregon has further restricted non-compete agreements. Oregon previously limited non-compete agreements to a maximum of 18 months from the date of separation and to only those employees who do the following:
- Engage in administrative, executive or professional work.
- Perform predominately intellectual, managerial or creative tasks.
- Exercise discretion and independent judgment.
- Are paid a salary (or combination of salary and commissions) that exceeds the median income for a four-person family.
Continue Reading Oregon, Nevada and Illinois Further Limit Restrictive Covenants
New Relief Bill Does Not Extend FFCRA Requirements but Does Encourage Voluntary Extension
As passed back in March 2020, the Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave (EPSL) Act and Emergency Family and Medical Leave Act (EFMLA) requirements by which employers with less than 500 employees must provide paid leave for certain COVID-19-related circumstances will expire as of December 31, 2020. The Coronavirus Response and Relief Supplemental Appropriations Act (Supplemental Bill) passed by Congress on December 21 does not extend those requirements beyond the December 31 date. However, the Supplemental Bill does continue to allow covered employers to take tax credits for such paid leave provided to employees between January 1 and March 31, 2021, if that paid leave would have otherwise been consistent with the FFCRA’s requirements if they had been extended beyond December 31.
Continue Reading New Relief Bill Does Not Extend FFCRA Requirements but Does Encourage Voluntary Extension
Court Ruling Invalidates DOL’s Final Rule Related to FFCRA
On August 3, the federal court for the Southern District of New York (SDNY) issued an order invalidating several significant portions of the Department of Labor’s (DOL’s) Final Rule regarding the Families First Coronavirus Response Act (FFCRA). The SDNY struck down the following provisions:
- That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
- The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
- That an employer must agree to the use of EPSL on an intermittent basis by employees for reasons not related to the possible spread of COVID-19 by the employee.
- That an employee must provide documentation requesting FFCRA before the beginning of the leave.
This ruling clearly applies in the Southern District of New York, however, its impact outside of the district is uncertain. As of now, employers who operate in that jurisdiction may have differing obligations under the FFCRA than employers operating outside.
A more detailed description of the ruling is provided below.
Continue Reading Court Ruling Invalidates DOL’s Final Rule Related to FFCRA
Guidance on Potential Litigation Involving WARN Act Following COVID-19 Pandemic
I recently offered guidance on the Worker Adjustment and Retraining Notification (WARN) Act as it relates to changes in employment status for an article by the Society for Human Resource Management (SHRM) addressing potential litigation issues from the COVID-19 fallout.
The WARN Act requires most employers with more than 100 employees to provide a 60-day notice ahead of large-scale layoffs or the closing of operations. WARN Act claims require plaintiffs to show the following:
- A facility closed and at least 50 full-time employees lost their jobs.
- At least 500 full-time employees at a facility lost their jobs.
- At least 50 full-time employees lost their jobs and the number of full-time employees at the facility losing their jobs exceeded one third of all employees at the facility.
Continue Reading Guidance on Potential Litigation Involving WARN Act Following COVID-19 Pandemic