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Robert Horton

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As chair of the firm’s Labor & Employment Practice Group, Bob Horton represents management in all areas of labor and employment law. Bob’s practice consists primarily of counseling clients regarding employment issues and defending companies against all manner of employment claims throughout the U.S.

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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:

  1. That work has to be otherwise available to the employee for the employee to be eligible for Emergency Paid Sick Leave (EPSL).
  2. The DOL’s expansive definition of “healthcare providers” for the purposes of who can be excluded from the FFCRA mandated leave.
  3. 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.
  4. 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

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

Bass, Berry & Sims attorneys Davidson French, Bob Horton and Kimberly Veirs recently presented a Middle Tennessee Society for Human Resource Management’s (MTSHRM) webinar.

The webinar, entitled “Update on Federal Legislation in Response to COVID-19 Pandemic Impacting Employers,” reviewed the latest DOL guidance for employers implementing the provisions of the Families First Coronavirus Relief Act…

Please note that the content below was posted on March 30, 2020. We have since provided updated guidance on the topics discussed in this post here.

The U.S. Department of Labor (DOL) is issuing ongoing guidance regarding the application of the Families First Coronavirus Response Act (FFCRA).  The guidance has provided answers to many pressing questions faced by employers as they prepare to implement the FFCRA’s requirements starting April 1, 2020, including how a “healthcare provider” is defined, whether furloughed employees are entitled to paid leave benefits, whether leave under the FFCRA may be taken intermittently, and the application of the small business exception.  DOL’s guidance can be found here.  Below is a summary of some of the most common FAQs.Continue Reading DOL Issues Second Round of Guidance on FFCRA

Please note that the content below was posted on March 26, 2020. We have since provided updated guidance on the topics discussed in this post here.

The Department of Labor has issued a Notice Poster outlining employees’ rights under the Families First Coronavirus Response Act’s (FFCRA). This poster must be displayed in a conspicuous place in a location visible to employees and is available for download on the DOL website.  Additional facts regarding posting requirements can be found here.

Both the FFCRA’s leave provisions (Paid Sick Leave and Emergency FMLA) apply to private employers with fewer than 500 employees.  The Department of Labor has issued a Questions and Answers resource addressing one of the FFCRA’s most lingering questions – which employees are counted for purposes of the 500 or less employee threshold?Continue Reading DOL Issues Notice Poster and Answers to FFCRA Frequently Asked Questions Clarifying 500-Employee Threshold

COVID-19 is spreading and testing, in many states, is increasing.  As a result, increasing numbers of employers will be faced with the reality of an employee testing positive for COVID-19.  When that happens, what’s an employer to do?  Below are some FAQs about COVID-19 in the workplace.

An employee has tested positive.  What can an employer do?

Send the employee home immediately.  The employer may require a doctor’s note releasing the employee to return to work, although the CDC has asked employers to consider foregoing such documentation due to current healthcare constraints.  If the employer chooses to forego the medical release to work, the CDC has provided that employees should not return to work until they are free of fever (without the use of fever-reducing medications) and any other COVID-19-related symptoms for at least 24 hours.  The CDC has indicated that healthcare professionals diagnosed with COVID-19 may return to work after seven days have passed since symptoms first appeared AND after three days have passed since resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.

The employer should consider a deep clean of the employee’s workplace, including common areas.  The employer has the option to notify the diagnosed employee’s co-workers of the diagnosis, without releasing the employee’s name.  A sample notice is below:Continue Reading COVID-19 in the Workplace: Employer FAQs

The economic repercussions of COVID-19 have been immediate and in many cases, debilitating, to American business across all industries, from food & beverage to manufacturing to healthcare.  Challenges faced include government-mandated closures of certain “non-essential” businesses and reduced demand of products and/or services.  As business revenue plummets, many companies are faced with the need to cut significant human capital costs in order to keep their business afloat.  Below are some options for companies to consider as they work to address reduced staffing needs.

Furlough

While the term furlough is used to describe various arrangements, typically a furlough is an unpaid leave of absence.  A furlough is often ideal for employers who anticipate a temporary need for reduced staffing.  Employees on furlough are still technically employed by the employer and, as a result, may be able to remain on the employer’s group health plan(s) if permitted by the terms of the plan(s).  Employers may require employees to pay the applicable employee portion of the premium during the furlough.  If the employer’s group health plan(s) is not available to employees on furlough, COBRA coverage would commence.  Also, many states allow for unemployment compensation to employees on an unpaid furlough.Continue Reading Workforce Reduction Options Amid COVID-19

On Sunday, March 22, Nashville Mayor John Cooper announced the “Safer at Home Order,” issued by the Medical Director pursuant to the Metro Public Health Department’s declaration of a Health Emergency. This order closes non-essential businesses and encourages residents throughout Davidson County (Tennessee) to stay home when possible and avoid gathering in groups of more than 10 people for non-essential purposes. The Order does not restrict or limit any employer’s right to ask employees to work from home.

Until further notice, all businesses not performing essential services have been ordered closed for 14 days beginning at 12:01 a.m. Monday, March 23.Continue Reading Nashville Mayor John Cooper Announces Safer at Home Order

Managing an employee who is struggling with alcoholism or substance use disorder can be challenging for employers. While both conditions could be protected under the Americans with Disabilities Act Amendments Act (ADAAA), there are differences in how each condition is treated under the law.

Understanding these differences is essential for any HR professional in implementing a plan after discovering that an employee’s work performance or ability to work is being affected by alcoholism or substance use.Continue Reading Are Employees with Alcoholism and Substance Use Disorder Protected under the ADAAA?

In an article published by the Nashville Business Journal, we urge employers to get ready for the U.S. Equal Employment Opportunity Commission’s data reporting. Although facing criticism, the U.S. Equal Employment Opportunity Commission (EEOC) is moving forward with its pay data collection, and with the reporting deadline set for September 30, employers should prepare now.

Employers with more than 100 employees and any federal contractors with more with 50 employees are required to submit an EEO-1 survey, which has historically analyzed organizations’ employment data categorized by sex, race and ethnicity. Under the new reporting requirements, employers and federal contractors with more than 100 employees will also report compensation data.Continue Reading What Employers Need to Know about EEOC’s Pay Data Collection Plan

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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