The logical extension from the discovery that all or most or your staff can work from home without anything catastrophic happening is to ask yourself whether you actually need an office in the first place. Obviously it has potential advantages in terms of staff cohesion and corporate identity, but decisions are being made across the country right now about whether full-size physical offices are worth the cost. An increasing number of employers are making homeworking for those staff not just an option but compulsory, a whole new way of working. If this is or might be you, what are the employment considerations?
Pennsylvania Hazard Pay for COVID-19 Frontline Workers (US)
On July 16, 2020, Pennsylvania Governor Tom Wolf announced a hazard pay grant program to help employers provide additional pay for employees engaged in life-sustaining occupations during the COVID-19 pandemic. This hazard pay is funded by $50 million from the CARES Act and is intended to recognize and reward frontline workers and to help eligible employers retain employees. Continue Reading
NLRB Provides Much-Needed Reality Check, Lowers Barrier To Employers’ Ability To Discipline And Discharge Employees Who Engage In Arguably Protected, But Plainly Disruptive, Workplace Conduct (US)
An employee confronts you – a small business owner – and calls you a “f***ng mother f***cker,” a “f***ing crook,” an “a**hole,” and “stupid,” tells you that none of your employees like you and everyone talks about you behind your back, and warns you that you’ll regret firing him, if you do. Or you’re a manager and one of your direct reports posts a message on Facebook calling you “such a NASTY MOTHER F***ER,” someone who doesn’t “know how to talk to people,” punctuating the post with “F** his mother and his entire f***ing family!!! What a LOSER!!!!,” and throws in at the end, “Vote YES for the UNION!!!!!” Or, you are a Black employee working for a company whose employees are currently on strike. You decide to continue working, as is your legal right, but as you cross the picket line, a white employee shouts out to you: “Hey, anybody smell that? I smell fried chicken and watermelon.”
If you’re cringing (or worse!) right now, you should be. Reasonable employers and managers should cringe, and most would instinctively discipline or fire employees for engaging in such reprehensible employee behavior. But until recently, employers assumed the risk if they did so, the National Labor Relations Board (“NLRB” or “Board”) would fault them for chilling employees’ right to engage in protected concerted activity. That changed however on July 21, 2020, when the Board issued a sensible and long-overdue decision in General Motors LLC, making it easier for employers to discipline or fire workers for offensive, racist, sexist, and other profane language or conduct in the workplace, even when the offender is engaging in protected concerted activity. Continue Reading
Supreme Court Ruling Limits Insurer and Employer Contraceptive Obligations (US)
Earlier this month the Supreme Court of the United States upheld a regulation adopted under the Trump administration significantly cutting back the requirement that insurers and group health plans provide coverage for contraceptives without cost sharing under the Affordable Care Act (ACA). Continue Reading
School’s Out For….Ever?? Preparing for COVID-19-Related Attendance Challenges (US)
It seems like just yesterday that spring school terms were cancelled thanks to the coronavirus. Employees left the workplace en masse, sometimes without choice thanks to government shutdown orders, while others left suddenly to begin involuntary tours of duty as homeschool teachers with no training whatsoever, myself included. (My daughter’s strident request for a substitute teacher was unsuccessful, notwithstanding my enthusiastically seconding her motion.) Continue Reading
Privacy Shield data transfer case impact on UK employers
The striking down of the Privacy Shield by the Court of Justice of the European Union (CJEU) last week may have significant consequences for UK and EU employers which are headquartered in the US or which otherwise transfer the personal data of their employees to that country.
Brief history – the original EU Data Protection Directive imposed strict limits and conditions on the transfer of the personal data of EU citizens outside the bloc to jurisdictions where the protection of that data was perceived to be of a lower priority than in the EU. That included the US.
In response, the US and EU developed jointly the Safe Harbor concept – a set of rules which, if agreed to by the relevant US transferee, were deemed to provide equivalent protection to the EU laws. Safe Harbor ran undisturbed until October 2015 when the CJEU ruled it invalid due to concerns that the US Government and Security Services could access that personal data irrespective of the Safe Harbor principles.
Privacy Shield took its place. However, now that too has been torpedoed by the CJEU on broadly similar grounds.
The music stops on CJRS claims for notice pay, probably (UK)
“I told you so” has always been one of the least attractive things that one adult can say to another, but I did and I was right, so there.
This concerns the question of whether an employer can make any claim under the CJRS for sums paid to employees in respect of their notice period. Treasury Direction Number 3 was almost wilfully obscure on the point, noting only that “integral to the purpose of the CJRS is that the amounts paid to an employer pursuant to a CJRS claim are used by the employer to continue the employment of employees in respect of whom the CJRS claim is made”. Perhaps unsurprisingly, that led to a written parliamentary question – “whether employers are prohibited from using grounds from the CJRS for employees placed on redundancy notice periods…?“. This led in turn to a written answer by Financial Secretary to the Treasury Jesse Norman some days later, so by someone who had at least notionally had at his disposal both the time and expertise to prepare a proper and considered answer. Instead what we got was this: “Employers may continue to claim under the scheme for a furloughed employee who is serving a statutory notice period subject to eligibility based on contract of employment“. The only way that the statutory minimum notice can be “subject to eligibility based on contract of employment” is of course where the contractual entitlement is longer (since it cannot be less), which suggests that what Mr Norman was groping towards here was a statement that CJRS claims could be made in respect of the employee’s contractual notice period.
Sixth Circuit Reverses Ohio Federal Court: Genetic Mutation Affecting Normal Cell Growth May Qualify as a Disability under the ADA (US)
In a previous blog, we discussed Darby v. Childvine, a decision from the United States District Court for the Southern District of Ohio in which the court considered whether an otherwise healthy person with a genetic mutation meets the definition of disabled under the federal Americans with Disabilities Act (“ADA”). As a reminder, the ADA broadly defines the term “disability” as a physical or mental impairment that substantially limits one or more major life activities. In Darby, the plaintiff, Sherryl Darby, alleged that she was discriminated against when her employer terminated her employment after she underwent a double mastectomy following diagnosis of the growth of abnormal pre-cancerous cells along with a genetic mutation, known as BRCA1, which contributes to abnormal cell growth. The District Court concluded that a BRCA1 genetic mutation, by itself, is not a protected disability because although it demonstrates an increased likelihood that a person may develop the disability of cancer in the future, it does not constitute a present disability. Further, the court analyzed whether the BRCA1 genetic mutation fell under the ADA’s protections for disabilities in their dormant form, but ultimately determined that Ms. Darby’s condition constituted an absence of cancer, not cancer in remission or an otherwise dormant disability. Therefore, the District Court dismissed Ms. Darby’s complaint.
However, on June 30, 2020, the U.S. Court of Appeals for the Sixth Circuit (which covers Ohio, Kentucky, Michigan, and Tennessee) reversed and remanded, holding that Ms. Darby plausibly alleged that her genetic mutation could qualify as a disability under the ADA. Utilizing the ADA’s definitional framework, the Sixth Circuit believed the relevant question was:
“Has Darby plausibly alleged that her impairment substantially limits her normal cell growth as compared to the general population due to both a genetic mutation (BRCA1) that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy?”
OSHA Updates Guidance On COVID-19-Related Workplace Safety (US)
As businesses continue to reopen and more workers return to the workplace despite significant increases in infection rates in some parts of the country, many questions have surfaced about employers’ obligations to provide employees with a safe workplace. The Occupational Safety and Health Administration (OSHA) recently updated its informal COVID-19-related guidance to address a number of emerging employer concerns.
Facemasks
OSHA advises that “employers may choose to ensure that cloth face coverings are worn” at work in order to protect employees. OSHA has not adopted regulations mandating that workers wear, or be provided with, cloth face coverings, and does not view cloth face masks as constituting personal protective equipment (PPE); however, consistent with employers’ pre-COVID-19 duty to provide employees a workplace that is “free from recognized hazards likely to cause death or serious physical harm” – known as the General Duty clause of the Occupational Safety and Health Act – OSHA now recommends that workers “mask up” and that employers support this effort. OSHA notes on this point, “employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from . . . the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.” Continue Reading
Effective settlement agreements, Part 2 – DSARs and disputes (UK)
Here are brief answers to two more of the questions raised at this week’s webinar on Effective Settlement Agreements.
Can we make it a term of a Settlement Agreement that an employee will not make a DSAR after he leaves?
Yes and no. Yes, in that he can sign up to such a term. No, in that it won’t bind him (nor would it in a COT3). In fact, your trying to pre-empt that right is most likely to lead your employee to question more persistently why you would be coy about the data on him which you hold, so we would not recommend even asking for this. It will rarely end well.
