Black Lives Matter, Racial Unrest and Corporate Culture – How Do Employers Respond? (US)

As the daily news continues to show protests and calls for justice in response to the death of George Floyd and others at the hands of police officers, there is, unsurprisingly, a desire from employees to hear from their employers regarding the ongoing violence and racial unrest in our communities and across the country. Many employers recognized the gravity of the racial unrest by celebrating, for the first time, Juneteenth on June 19, 2020, a holiday celebrating the emancipation of slaves. But is that enough? How do employers respond? Continue Reading

UK Chancellor issues further Treasury Direction on CJRS – mire deepens

On Friday last week the Chancellor issued the third and probably final Treasury Direction in relation to the Coronavirus Job Retention Scheme (CJRS). This is “the law” that will govern the flexible furlough arrangements from 1 July.

As with the two previous Treasury Directions, this one is horribly complicated to navigate – to the point where the less trusting parts of you begin to wonder if it represents a deliberate attempt to deter CJRS applications by making sure that whatever sum the employer claims, it is almost bound to be wrong. For example, paras 14.5 and 14.6 read “A CJRS claim must not be made if the CJRS claim period of the claim would include a day that is not a permitted CJRS day”, being a day which “falls in a period that is (or will be) covered by a CJRS claim period (“relevant CJRS claim period”) and does not fall in a period covered by a CJRS claim period that begins on a different day to the day on which the relevant CJRS claim period begins, or ends on a different day to the day on which the relevant CJRS claim period ends”. Got that? Anyone? The sole attraction of this degree of opacity in the drafting of the Direction is that HMRC’s ability to show wilful non-compliance with the CJRS claim rules in any later audit or prosecution around this sort of thing will be more or less nil – no jury will convict.

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DOL Update: COVID-19-Related Guidance and New Opinion Letters (US)

Department of Labor - USADuring the week of June 22, 2020, the U.S. Department of Labor (“DOL”) Wage and Hour Division (“WHD”) issued three Field Assistance Bulletins, each providing guidance to WHD field staff regarding three unique compliance issues related to the COVID-19 pandemic. In addition, on June 25, 2020, the DOL released five fact-specific opinion letters discussing various pay practices specifically relating to certain salespersons and county government employees.

Field Assistance Bulletins Address COVID-19 Issues

Each of the recent Field Assistance Bulletins at least tangentially relate to the COVID-19 pandemic. The first bulletin announces a change to the DOL’s practice of seeking pre-litigation liquidated damages. The second bulletin addresses when an employee may take leave under the Families First Coronavirus Response Act (“FFCRA”) to care for a child based on the closure of a summer camp or other summer programs. Finally, the third bulletin provides guidance regarding when schools that have physically closed in response to the COVID-19 are considered “in session” for purposes of child labor laws. Continue Reading

California Privacy Rights Act Makes it to the November Ballot (US)

As California employers continue to grapple with compliance with employee-related portions of the California Consumer Privacy Act, it is worth keeping an eye on a follow-on law, the California Privacy Rights Act (CPRA), which now has enough signatures to be on California’s November 3, 2020 ballot. Of particular concern to employers should be the fact that if passed as a ballot measure, it will make provisions of the law virtually impossible to amend or alter through the normal legislative and regulatory process. It also means that employers will have a final deadline for compliance which will likely not be extendable for any reason absent another statewide ballot measure. Our colleagues at Squire Patton Boggs’ Security & Privacy//Bytes blog have the details. Continue Reading

NLRB Issues Key Changes Regarding Arbitration Agreements, Confidentiality Provisions, and Employee Discipline (US)

NLRB LogoThe National Labor Relations Board continues to clarify and update employers’ obligations in key areas. As discussed below, one recent decision clarifies when employers may enter into arbitration agreements that require employees to keep the proceedings confidential. Another recent decision rescinded a rule issued by the Obama-era NLRB and clarified, for employers who are negotiating their first contract with a labor union, when the employers may discipline employees. Continue Reading

HR priorities in a post-Covid world (UK)

In the innocent days of early 2020 investment research firm MSCI predicted that this would be the year that “ESG storms the CFO’s office, elbowing its way onto their bottom line as financiers get creative with ways to bind ESG criteria to their terms of capital, introducing a plethora of corporate borrowers into the wide world of ESG”. But is this still right? Should Boards still be focused on ESG or have the totally unprecedented events of 2020 left it behind as a worthy but essentially idealistic approach only achievable in more prosperous times?

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Walking The Tightrope: Dealing With Employees’ Different Viewpoints On COVID-19, Racial Justice, and Partisan Politics (US)

We’re living through a period of time in the US unlike any we have previously experienced,  simultaneously grappling with a deadly public health emergency, mass protests – some peaceful, some not – seeking racial justice and police reform, and an increasingly bitter, partisan political landscape that likely only will intensify as we get closer to Election Day in November 2020. With each of these momentous issues comes a wide spectrum of individual opinions. Some view governmental actions taken in response to the COVID-19 pandemic as overblown and disproportionate to the risk, with shutdown orders and face-covering mandates intruding on personal freedoms and coming at the expense of economic stability. Others see these measures as unfortunate, but necessary for the public good. Support for the cause of racial justice and the Black Lives Matter movement is greater than ever before, but certainly not universal. And the current political climate is more acrimonious than it has been in decades, stoked by intense feelings on both sides of the proverbial aisle.

Against this backdrop, employers are primarily focused on doing what they can to return their businesses to normalcy, while at the same time implementing appropriate measures to provide their employees with a safe and healthy work environment. But it’s inevitable that, with this unprecedented trio of health, social, and political issues being ever-present in every employee’s daily life, they will be the subject of discussions among employees in the workplace. It’s also inevitable that with a wide range of viewpoints on each of them, conflict, to some degree, will arise in the workplace. Continue Reading

Post-lockdown working, Part 4 – whistleblowing for beginners (UK)

On top of the flexible working rules (see Parts 1-3), another piece of existing law likely to get a pandemic-related dusting-off in the months to come is our old friend whistleblowing.

If you face what is otherwise a fairly clear redundancy situation because Covid-19 has gutted your employer’s market, what better way of upping the ante than to assert that your selection is retaliation for complaints you have made about the inadequacy of your employer’s health and safety measures?  In a stroke, you can side step both the requirement of two years’ service before you can claim unfair dismissal, and/or the cap on compensation if you do.

Well yes, sometimes.  But it is both harder for the employee to make a protected disclosure than it sounds and easier for the employer to dodge the bullet in its response than you might think.

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An Extended Pause: New Presidential Proclamation Halts US Entry for Thousands of Workers

Detail Of A USA Visa

As expected, President Trump signed a presidential proclamation (“Suspension of Entry of Immigrants and Nonimmigrants who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak” hereafter “Nonimmigrant Proclamation”) extending the duration of his prior suspension of immigrant visas (for those entering the U.S. permanently) and creating a new suspension for those seeking entry across a broad swath of nonimmigrant visas (those entering temporarily, particularly for employment). Continue Reading

DHS Extends Flexibility Relating to I-9 Execution for Remote Workers While Increasing Civil Penalties for Violations (US)

The Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE) recently announced another extension, through July 19, 2020, of its COVID-19 temporary policy of deferring the physical presence requirements associated with Form I-9 compliance in relation to hiring and re-verifying certain remote employees.  However, within days of announcing this reprieve for employers, DHS and the Department of Justice (DOJ) published their annual, Civil Monetary Penalty Adjustments for Inflation rules increasing penalties against employers found in violation of immigration-related employment practices including I-9 paperwork deficiencies, unauthorized employment violations, and unfair, discriminatory employment practices. Continue Reading