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

Dreamer Deferred: The Supreme Court DACA Ruling’s Effect on Employers (US)

On June 18, 2020, the U.S. Supreme Court ruled that the Trump administration’s attempt to end Deferred Action for Childhood Arrivals (DACA) fell short of the legal requirements for ending such a broad executive program.  The Court held that the U.S. Department of Homeland Security’s (DHS) effort to terminate DACA was “arbitrary and capricious” and remanded the case for further consideration, leaving the program intact.  The Trump administration had argued that DACA was an unconstitutional overreach of executive authority since it began in 2012.

The 5 to 4 opinion, written by Chief Justice John Roberts, only addressed DHS’ “procedural requirement that it provide a reasoned explanation for its action” and made no official determination regarding DACA’s legality or political merits.  Chief Justice Roberts explained: “Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

The technical nature of the decision allows DACA to continue, but leaves the door open to a more detailed and measured attempt to end the program by the Trump administration. Continue Reading

New Corona measures support Belgian employers well into the Autumn

Coronavirus themed Belgium FlagThe Belgian government is acutely aware that businesses will feel the impact of the Covid-19 crisis well beyond the summer months. To that end, a new set of measures was decided during the Inner Cabinet meeting of 12 June. Information on these measures is still scarce, but we thought we’d share the highlights with you now (and of course will update you when we can).

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COVID-19 Temperature Testing? Yes. Viral Testing? Yes. Antibody Testing? No! (US)

Employers undertaking the reopening process following COVID-19-related shutdown orders are grappling with what measures they can implement to reduce the potential for transmission of the SARS-CoV-2 virus in their workplace. In addition to requiring face masks, mandating physical distancing, and encouraging regular handwashing, some employers also are requiring employees to submit to medical testing as a condition of coming back to work.

Early on in this public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) gave the green-light for employers to require that employees submit to non-invasive temperature testing without running afoul of the Americans with Disabilities Act (ADA) (see our prior post here). The EEOC subsequently updated its guidance to clarify that employers also may require that employees submit to viral testing to confirm the absence of an active COVID-19 infection (see our prior post here). Continue Reading

Landmark U.S. Supreme Court Ruling Prohibits Sexual Orientation And Gender Identity-Based Discrimination In Employment (US)

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

In a landmark ruling issued on June 15, 2020, the U.S. Supreme Court held that an employer who fires or otherwise discriminates against an individual simply for being gay or transgender does so “because of . . . sex,” in violation of Title VII of the Civil Rights Act of 1964.  Writing for the majority, Justice Gorsuch, joined by Chief Justice John Roberts and the Court’s four liberal Justices, ruled that it is unlawful under federal law for employers to discriminate against employees based on sexual orientation or gender identity. Continue Reading

BREAKING: US Supreme Court – Title VII Prohibits Discrimination In Employment Based On Sexual Orientation And Gender Identity

Supreme Court SunriseResolving a question that previously had vexed lower courts and resulted in inconsistent rulings across the country, on Monday, June 15, 2020, the United States Supreme Court ruled that the prohibition against sex-based discrimination in employment set forth in Title VII of the Civil Rights Act of 1964 includes claims of sexual orientation and gender identity-based discrimination.

In a 6-3 decision authored by Justice Gorsuch, the Court stated that Title VII’s prohibition on discrimination “because of” “sex” means that “[a]n employer violates Title VII when it intentionally fires an individual employee based in part on sex,” explaining that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” The majority’s opinion is rooted in what Justice Gorsuch said are the express terms of Title VII, noting that although the drafters of that law may not have foreseen that it be applied to sexual orientation or gender-identity discrimination claims, “[w]hen the express terms of the statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is law, and all persons are entitled to its benefit.”

We are analyzing the Court’s lengthy (172 page) decision and will post an update soon with a comprehensive in-depth analysis.

Major miscalculation in guidance to flexible furlough pay scheme (UK)

At the start of the Coronavirus Job Retention Scheme (CJRS) I wrote that if the Government’s political legacy through the pandemic were to have any chance of surviving intact in the eyes of employers, the Scheme would have to be above all clear and easy for employers to use. Even though parts of the guidance around it were late, unclear or contradictory, that objective was largely achieved. Most employers were in a position to have a reasonable stab at a claim when the Scheme opened for business.

It was unfortunately too good to last, as proven beyond reasonable argument by the Guidance issued on Friday night on how as employer you calculate of the support available to you under the new Flexible Furlough Scheme. For a Scheme designed to last only from 1 July to the end of October, it is quite grotesquely over-engineered. Never was a piece of regulation more deserving of its acronym.

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