LABOR AND EMPLOYMENT IMPLICATIONS OF CORONAVIRUS June 23, 2020 Presented by: Presented by: Christine A. Samsel Todd Fredrickson Brownstein Hyatt Farber Schreck, LLP Fisher & Phillips LLP Phone: 303-223-1133 Phone: 303-218-3650 Email: csamsel@bhfs.com Email: tfredrickson@fisherphillips.com fisherphillips.com
What We’ll Cover Today • Wage & hour law and remote work • Discrimination, adverse impact, and retaliation • Layoffs, furloughs, and the WARN Act • Workplace safety and health checks (ADA implications) • Accommodations, leaves, and time off • Compliance with federal, state, and local guidance and policies, and third-party liability fisherphillips.com
WAGE & HOUR LAW AND REMOTE WORK fisherphillips.com
WAGE & HOUR LAW – EXEMPT EMPLOYEES • Exempt employees generally must receive their full salary for any workweek in which work is performed • No compensation reductions for exempt employees based on reduced working hours or reduced workweek schedule • No proration of the salary threshold • Salary reductions • Can be prospective only • Should not be tied directly to reduction in hours (e.g., 60% pay for 60% of hours) • References: Federal Fair Labor Standards Act (FLSA), CO Overtime and Minimum Pay Standards Order (COMPS Order) No. 36, 7 CCR 1103-1 (2020) fisherphillips.com
WAGE & HOUR LAW – EXEMPT EMPLOYEES • Employer-required usage of accrued PTO • What does the policy say? • Can allow employees to go into negative accrual • But cannot reduce exempt employee compensation when PTO runs out, with very limited exceptions fisherphillips.com
WAGE & HOUR LAW – EXEMPT EMPLOYEES • Some employers changed exempt employees to non-exempt status during the crisis • Consider whether to revert back or leave as-is • Are exempt employees still exempt upon return? • Do they satisfy the duties test? What duties are they performing? Filling in for non-exempt workers? • Analysis is particularly important in states where it is a quantitative versus a qualitative analysis (e.g., California) • Good opportunity to examine proper classification fisherphillips.com
WAGE & HOUR LAW - REMOTE WORK • Even when employees are working remotely, employers must comply with applicable law, including: • Tracking and compensating non-exempt employees’ working time • Providing for required meal and rest periods • Reasonably ensuring safe working conditions • Providing necessary work equipment and reimbursing expenses in accordance with applicable law • Data privacy, confidentiality and security considerations • Workers’ compensation/employer liability insurance may cover employee and third-party injuries at home fisherphillips.com
WAGE & HOUR LAW - NON-EXEMPT EMPLOYEES • Remember that non-exempt employees may be entitled to compensation for: • Time waiting in line for temperature checks • Wellness checks and certifications conducted at home before reporting to work • Donning and doffing personal protective equipment • Obtaining employer-required medical certifications and tests • Time working remotely is particularly hard to track • This time should be tracked and compensated as appropriate under applicable law fisherphillips.com
WAGE & HOUR LAW - ANTICIPATED LITIGATION • We expect to see burgeoning litigation on these issues • Wage-and-hour claims by exempt employees whose compensation was reduced or whose duties no longer qualify them for an exemption • Wage-and-hour claims by non-exempt employees for failure to pay for all time worked • Claims for failure to reimburse employees for expenses incurred in accordance with applicable law • Taking employees below minimum wage in certain pay periods • Some jurisdictions require reimbursement of all expenses reasonably incurred in performing duties, such as California and Illinois fisherphillips.com
DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION fisherphillips.com
DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION fisherphillips.com
DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION • Types of cases we’re seeing: • ADA/ADAAA disability and associational disability claims. • FMLA interference and retaliation claims. • ADEA (associated with layoffs/furloughs). • Pandemic-related harassment due to national origin, race, etc. • First Amendment claims. • Adverse or disparate impact. • RIF context typically. • Lack of intentional discrimination. • Neutral policy disproportionately impacting protected groups under Title VII, ADEA, etc. fisherphillips.com
DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION • Retaliation and related claims • See above statutes. • Families First Coronavirus Response Act (FFCRA) interference and retaliation claims: • Failure to provide paid sick or emergency FMLA leave. • Discipline or discharge in retaliation for exercising rights. • OSHA 11(c) Claims • Claims under the National Labor Relations Act fisherphillips.com
DISCRIMINATION, ADVERSE IMPACT, AND RETALIATION • State law claims starting to emerge: • Public policy wrongful discharge. • General whistleblower claims and CO’s new whistleblower statute. • Invasion of privacy. • Some tort claims ( and worker’s comp exclusivity). • A word about remedies . . . fisherphillips.com
LAYOFFS, FURLOUGHS AND THE WARN ACT fisherphillips.com
FEDERAL AND STATE WARN ACTS • Federal Worker Adjustment and Retraining Notification (WARN) Act applies to employers with 100+ employees (not counting part-time/short-term workers) where certain actions occur. Triggers include: • Plant closing • Mass layoff • State WARN Acts (e.g., NY, CA) have different – usually lower – thresholds for covered employers and/or triggering events • More employee-favorable • Many states are implementing/modifying mini-WARN Acts to address the COVID crisis fisherphillips.com
FEDERAL AND STATE WARN ACTS • Federal WARN Act requires 60 days’ notice of triggering event, subject to certain exceptions allowing shorter notice • Unforeseeable business circumstances • COVID crisis likely qualifies – at least in the early stages • Will it apply in a resurgence? • Faltering business • “Physical calamity” • Notice still required as soon as reasonably practicable • Per the DOL, the WARN Act still applies even in this crisis • State WARN Acts do not always have the same exceptions fisherphillips.com
FEDERAL WARN ACT • Furloughs that extend more than 6 months may be deemed to be “employment losses” • There are notice requirements for short-term furloughs/layoffs extended beyond 6 months • Subject to certain exceptions, it counts as a “layoff” as of the date the furlough commenced , not when it hit the 6-month mark • Reduction of 50% or more in employees’ work hours for each of six consecutive months can also trigger WARN Act obligations fisherphillips.com
FEDERAL WARN ACT • Consolidation of employment losses • Cannot avoid WARN Act requirements by spreading out employment losses over a period of time • 90-day aggregation period under federal WARN Act • Examine the 90-day period surrounding any planned reduction events • Including the 6-month anniversary of furloughs – potentially looking back to the date it commenced – or reduction in work hours fisherphillips.com
LAYOFFS AND FURLOUGHS • State law requirements for payout of accrued vacation and final wages • Furlough as a subterfuge for layoff? • CA, for instance, considers a furlough of more than a payroll period to be a “termination,” triggering payout of accrued PTO • In many jurisdictions, written notices of layoffs and/or furloughs or reduction in hours are required for unemployment purposes fisherphillips.com
LAYOFFS, FURLOUGHS AND WARN ACT - ANTICIPATED LITIGATION • We expect to see a significant uptick in the number of federal WARN Act cases (and state cases, where applicable) filed by year-end. • These are especially likely regarding “COVID-Round 2” • There already have been numerous cases filed • Hooters in Florida sued less than a month after the crisis hit • Hertz and Enterprise sued in Florida • Hometown Buffet sued in CA under the state WARN Act • Also a medical spa in Missouri, a tech company in Silicon Valley, a debt collection agency in Nevada, etc. • More will doubtless follow fisherphillips.com
LAYOFFS, FURLOUGHS AND WARN ACT – ANTICIPATED LITIGATION • Cases asserting discrimination in bringing people back from layoffs and furloughs also likely will increase • Especially “paternalistic” approaches to determining who comes back to work and when • Expect to see a significant uptick in state law cases regarding layoffs and furloughs, and failure to comply with applicable state law regarding the timing of payout of accrued compensation and PTO fisherphillips.com
WORKPLACE SAFETY AND HEALTH CHECKS (ADA Implications) fisherphillips.com
WORKPLACE SAFETY AND HEALTH CHECKS • Heavily regulated and required under federal, state, and local law. • Face masks, social-distancing, and other precautions. • Increasing presence by OSHA. • ADA/ADAAA implications: • EEOC loosening the rules regarding pre-employment medical exams and inquiries (see attached guidance). • Asking about COVID-19 symptoms. • Temperature-taking. • Requiring employees with symptoms to stay home. • Return to work/fitness for duty notes. fisherphillips.com
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