Fifth Circuit: WARN Act’s Advance Notice Requirement for Layoffs is Not Exempted by COVID-19 Pandemic

APPLIES TO

All Employers with TX, MS, and LA Employees

EFFECTIVE

June 15, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Generally, the Worker Adjustment and Retraining Notification (WARN) Act requires employers to give employees advance notice of mass layoffs and plant closures, subject to limited exceptions. In Easom v. U.S. Well Services Inc., the Fifth Circuit Court of Appeals stated that the COVID-19 pandemic did not fall under the natural disaster exception to the WARN Act. Specifically, the court indicated that Congress did not intend to include a pandemic as a “natural disaster” when they originally passed the WARN Act.

 

There, the employer laid off employees citing unforeseeable business circumstances due to historic lows in oil prices coupled with decreased demand for oil and gas because of the COVID-19 pandemic. Three employees filed a class action lawsuit alleging a WARN Act violation for failing to provide 60 days’ advance notice of the mass layoffs.

 

While this ruling is limited to employers in the Fifth Circuit, it may be modified or appealed further.  There are also similar cases pending around the country. Notably, this case does not address the “unforeseeable business circumstances” exemption to the WARN Act, which may serve as another avenue for employers to claim an exemption to the notice requirement.

 

Spring 2020 was a chaotic time for many employers forced to make quick decisions regarding their business in the face of mandatory government lockdowns and a rapidly declining economy. There was little guidance at the time on how to interpret and apply the WARN Act’s notice exceptions in the face of a pandemic. Employers should continue to monitor pending cases addressing the WARN Act’s exceptions to the notice requirement.

 

Action Items

  1. Review requirements under WARN here.
  2. Review procedures for mass layoffs and plant closures with legal counsel for compliance.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

Seventh Circuit: Discouraging Use of FMLA Leave Can Be a FMLA Interference Violation

APPLIES TO

FMLA Employers with IL, IN, and WI Employees

EFFECTIVE

June 1, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Ziccarelli v. Dart, the Seventh Circuit Court of Appeals stated that an employer discouraging an employee from taking FMLA leave without an actual denial of FMLA leave is sufficient to violate FMLA. FMLA states it is unlawful for a covered employer to “interfere with, restrain, or deny” an employee’s right to FMLA leave. The “attempt to exercise” FMLA is included among the protected activities named in the statute. Further, Department of Labor regulations implementing FMLA also define interference to include discouraging an eligible employee from using FMLA leave.

 

There, a corrections officer with the Cook County Sheriff’s Office informed his FMLA manager of his intent to use both FMLA and sick leave to enter into a doctor-recommended post-traumatic stress disorder treatment program. Despite having FMLA hours available for the remainder of the year, the FMLA manager warned the corrections officer that he would be disciplined for taking any more FMLA leave since he had already taken a significant amount. The corrections officer chose to retire rather than face potential discipline. In reaching its decision, the Seventh Circuit noted FMLA rights would be significantly diminished if employers could actively discourage employees from accessing FMLA benefits.

 

Action Items

  1. Have appropriate personnel trained on FMLA requirements and employee rights.
  2. Review employee process to request FMLA leave to ensure compliance.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

Eleventh Circuit: HR Managers Covered by Title VII Anti-Retaliation Protections

APPLIES TO

All Employers with AL, FL, and GA Employees

EFFECTIVE

June 28, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Patterson v. Georgia Pacific, LLC, the Eleventh Circuit Court of Appeals stated human resource managers are protected against retaliation under Title VII where the employee opposed a former employer’s unlawful practices. There, an HR manager accused the employer of retaliation when it fired her after she gave testimony in a pregnancy discrimination lawsuit against her former employer.

 

The employer argued that HR managers do not engage in protected activity when opposing discrimination in the course of their job duties and are therefore exempt from the Title VII ban on retaliation.  The Eleventh Circuit found no such exemption in Title VII.  The definition of employee does not have a carveout or exclusion for HR managers.  The anti-retaliation provision applies to all employees regardless of their job duties. The actions opposing unlawful employment practices are what matter most.

 

Further, the Eleventh Circuit indicated that Title VII’s ban on retaliation makes no distinction between a former employer and a current employer. The text forbids retaliation by “an employer” against “any individual” for having “opposed any practice made an unlawful employment practice” under Title VII. The Eleventh Circuit noted a former employer’s employment practice can be just as unlawful as that of a current employer.

 

Action Items

  1. Consult with legal counsel before disciplining or terminating employees who participate in activity opposing unlawful employment practices.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

D.C. Circuit: “Objectively Tangible Harm” No Longer Required to Prove Title VII Discrimination

APPLIES TO

All Employers with Employees in the District of Columbia

EFFECTIVE

June 3, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Chambers v. District of Columbia, the D.C. Circuit Court of Appeals stated it would no longer require obvious harm, like termination or a reduction in pay, for an employer to be liable for discrimination under Title VII. There, an investigator for the D.C. Office of the Attorney General claimed she was discriminated against on the basis of sex due to the denial of several transfer requests to different departments while similar requests were routinely granted to male employees.

 

Title VII of the Civil Rights Act of 1964 makes it unlawful to “fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to [their] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” In its ruling, the D.C. Circuit determined an employer who denies a job transfer request because of an employee’s protected characteristic, like sex, discriminates against the employee in violation of Title VII.  The ultimate impact, whether financial or otherwise, is irrelevant.

 

While the D.C. Circuit’s ruling was specific to job transfers, it remains to be seen whether this analysis will extend to other acts of disparate treatment to support a claim under Title VII. This court’s rationale may also be adopted by other circuit courts. Employers should continue to monitor similar developments in other jurisdictions.

 

Action Items

  1. Review process for managing employee transfer requests to ensure consistent enforcement and procedures.
  2. Have appropriate personnel trained on Title VII protections.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

California: AB 5 Independent Contractor Rules Apply to Truck Drivers

APPLIES TO

All Employers with CA Employees

EFFECTIVE

June 30, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Motor carrier leased owner-operators who work in the state of California must now comply with AB 5 when determining whether they are employees or independent contractors. In California Trucking Association, Inc. v. Bonta, the Ninth Circuit Court of Appeals previously said that AB 5 was not preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), which expressly preempts state laws that relate to a price, route, or service, of any motor carrier. As a result, AB 5 does apply to motor carriers and independent owner-operators. The California Trucking Association appealed the Ninth Circuit’s decision to the U.S. Supreme Court hoping to resolve this issue, but the Supreme Court declined to review the case, effectively ending the trucking industry’s challenges to AB 5.

 

AB 5 was passed in 2020 and codified the ABC test for independent contractor status set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Under AB 5, a hiring party must show the following to classify a worker as an independent contractor: 1) the worker is free from control; 2) the worker performs work outside the company’s usual business; and 3) the worker independently performs work of the same nature as the work for the hiring party. Leased independent owner-operators typically run afoul of the second prong of the ABC test: they do not perform work outside the hiring company’s usual business. If an independent contractor is hauling goods for motor carriers, then they are only performing work for the carriers’ business.

 

Trucking businesses with leased owner-operator models in place in California must evaluate their independent contractor relationships for compliance. Motor carriers with national business models will now have to contend with different business operations for different parts of the country.

 

Action Items

  1. Have independent leased owner-operator relationships reviewed by legal counsel for compliance.
  2. Implement employee wages, payroll tax, benefits, and other rights and employment obligations for reclassified employees.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

California: CPRA Applies to Employees, Job Applicants, and Independent Contractors

APPLIES TO

All Employers with CA Employees

EFFECTIVE

January 1, 2023

QUESTIONS?

Contact HR On-Call

(888) 378-2456

 

The California Privacy Protection Agency (CPPA) recently proposed draft regulations to implement the Consumer Privacy Rights Act of 2020 (CPRA). The CPRA itself amended and expanded the California Consumer Privacy Act (CCPA). While the CPPA has only begun its rulemaking process, employers should expect the proposed regulations to be implemented in most of its current form. Of special note, the proposed regulations do not limit rights for employees, job applicants, or independent contractors under the CPRA as they were under the CCPA.

 

The proposed regulations are extremely lengthy and employers should review them in their entirety. The following are some of the most notable requirements employers should prepare to implement.

Read more

San Francisco, CA: Caregiving Protections Expanded and New Permanent Emergency Leave

APPLIES TO

Certain Employers with San Francisco Employees

EFFECTIVE

July 12, 2022 and October 1, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The City of San Francisco and its voters passed two new ordinances aimed at helping employees and their families navigate ongoing issues due to the COVID-19 pandemic and working arrangements. The Family Friendly Workplace Ordinance was amended to expand caregiving protections available to employees, and the Public Health Emergency Leave Ordinance creates a permanent leave benefit during a public health emergency. Each ordinance is highlighted as follows.

 

Family Friendly Workplace Ordinance (FFWO) – Effective: July 12, 2022

 

Amendments to the existing FFWO provide eligible employees the right to flexible or predictable work arrangements to help with caregiving responsibilities. Employers with 20 or more employees and a physical business location within the geographic boundaries of San Francisco must comply with the requirements as of July 12, 2022.

Read more

Colorado: Expanded Protections for Whistleblowers

APPLIES TO

All Employers with CO Employees

EFFECTIVE

May 31, 2022 and  June 7, 2022

QUESTIONS?

Contact HR On-Call

(888) 378-2456

Two laws significantly expanded whistleblower protections with the close of the Colorado legislative session.

 

SB 22-097: Health and Safety Whistleblower Law

 

The Colorado Public Health Emergency Whistleblower Law (PHEW) is now the Health and Safety Whistleblower Law (HSWL). SB 22-097 amended the PHEW and went into effect on May 31, 2022. The PHEW originally limited whistleblower protections by requiring reports of workplace health and safety violations or threats be related to a public health emergency. Now, the bill removed the public health emergency requirement. This change creates broad protection for any reasonable health and safety concern, perceived violations, or threats to health or safety. It protects those who: 1) raise concerns about perceived health threats or violations; 2) oppose conduct made unlawful by the HSWL; or 3) participate in protected activity under the HSWL. Employers should note passing remarks, messages to coworkers, or public social media postings may implicate the bill’s protections.

Read more

Illinois: Expansion of Bereavement Leave

APPLIES TO

All Employers with 50+ Employees

EFFECTIVE

January 1, 2023

QUESTIONS?

Contact HR On-Call

(888) 378-2456

SB 3120 creates the Family Bereavement Leave Act (FBLA), which will require employers with at least 50 employees to provide employees with up to 10 days of unpaid leave for bereavement. Eligible employees may take leave for a miscarriage, an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure like artificial insemination or embryo transfer, failed adoption match or a contested adoption, or a diagnosis that negatively impacts pregnancy or fertility, or a stillbirth.

 

Like the FMLA, employees are eligible after 12 months of employment and at least 1,250 hours worked within the previous 12-month period. There is no right to take unpaid that is more than what is allowed under the FMLA. Employers may ask for reasonable documentation but are barred from asking employees the specific category of the event requiring the leave. The Illinois Department of Labor is preparing a form for healthcare professionals to use that will verify the need for leave under the FBLA without identifying the specific reason why.

 

The FBLA further expands bereavement leave by adding to what was previously known as the Child Bereavement Leave Act. Instead of a right to bereavement leave due to the loss of a child, it now extends to the loss of a “covered family member”: a child, stepchild, spouse, domestic partner, sibling, parent, parent-in-law, grandchild, grandparent, or stepparent. Employers should continue to monitor bereavement leave in general as similar legislation is on the horizon in other states.

 

Action Items

  1. Review the FBLA here.
  2. Review and revise existing bereavement leave policies.
  3. Have appropriate personnel trained on leave protections and requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

 


Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase

Bloomington, MN: Mandated Paid Sick and Safe Time Coming in 2023!

APPLIES TO

All Employers with 5+ Employees

EFFECTIVE

July 1, 2023

QUESTIONS?

Contact HR On-Call

(888) 378-2456

The Bloomington City Council recently passed the Earned Sick and Safe Leave Ordinance requiring employers to provide certain employees in Bloomington with up to 48 hours of paid sick and safe time per year.  The ordinance covers all employers with five or more employees working anywhere. Full-time, part-time, and temporary employees performing work for a covered employer within Bloomington’s geographic boundaries for at least 80 hours in a year are eligible, including union employees under a collective bargaining agreement.

 

Permitted use. The permitted uses of paid sick and safe time are very broad and include, but are not limited to, mental and physical health care including diagnoses and preventative care; absence due to domestic abuse, sexual assault, or stalking; or closure of a place of business, school, or place of work due to a public health emergency. The permitted uses also extend to covered family members which include the employee’s child, stepchild, adopted child, foster child, adult child, spouse, sibling, parent, stepparent, mother-in-law, father-in-law, grandchild, grandparent, guardian, ward, or members of the employee’s household.

Read more