February 15, 2022
On February 8, 2022, we had the pleasure of presenting the Annual Employment Law Update to the members of SLSHRM. It was wonderful to see so many of you in person again. In today’s update, we provide a brief summary of the major topics covered in the seminar. A link to presentation slides is HERE.
VACCINE ROUNDUP: The Biden Administration, through Executive Orders and various agencies, has adopted four separate vaccine mandates for (1) employers with 100+ employees (the OSHA ETS), (2) federal contractors, (3) federal employees and onsite contractors, and (4) healthcare employers who receive Medicaid or Medicare reimbursements (the CMS mandate). Except for the CMS mandate, all these various vaccination mandates have either been rejected or stayed by the courts. On January 13, 2022, the U.S. Supreme Court upheld the CMS mandate. Employers subject to the CMS mandate have through February 14, 2022, to adopt a vaccination policy and all covered staff must have received at least one dose of a vaccine or received an exemption based on disability or religion. By March 15, 2022, employers covered by the CMS mandate must require all employees to have received the second dose of a two-dose vaccination or received an exemption.
UTAH’S SB 2004 LIMITS AN EMPLOYER’S ABILITY TO MANDATE VACCINES (SORT OF): In a special session, the Utah Legislature passed SB 2004 which requires employers who mandate vaccines to allow exemptions to employees who represent that a vaccine would be injurious to their health, conflict with a religious belief, or (and here’s the kicker) conflict with a “sincerely held personal belief.” Of course, if employees can avoid a vaccine mandate simply on the basis of a personal belief, that really undercuts an employer’s ability to mandate vaccines. However, the Legislature wasn’t done. SB 2004 provides that an employee who is not vaccinated because of disability/religion/personal belief may be reassigned and even terminated if reassignment “is not practical.” Thus, at least for jobs where reassignment to telework or to an isolated work area is not practical, SB 2004 does not prohibit an employer from mandating vaccines or from terminating an employee who is not vaccinated.
OSHA MASK GUIDANCE: On August 23, 2021, OSHA updated its workplace safety guidelines to recommend that employers require all employees–regardless of vaccination status–to wear masks when indoors and not physically distanced. That guidance has not changed since it was added in August 2021.
MOBILE EMPLOYEES MAY CREATE NEW HR LAW PROBLEMS: Is it a problem for a Utah company suddenly to have an unplanned, unexpected, and perhaps undesired branch office when an employee moves to another state? Yes! The United States has a national government, state governments, and local governments. They each have powers over employers and make laws that typically apply to and protect people subject to the various jurisdictions. And these laws are NOT ALWAYS UNIFORM! Examples: California employment laws…enough said. There is a lot of variation in state laws related to COVID-19, masks, vaccines, etc. Arizona law requires paid leave, Utah does not. Montana law prohibits age discrimination against any age, not just 40 and above, and also prohibits termination without “good cause” as defined by the statute. Utah does not do either of these things. Nevada law requires daily overtime (for more than 8 hours in a day), Utah law does not. Colorado law strictly limits the use of non-competes and makes violation of that law a crime. Not true in Utah law. What to do? Keep track of where employees actually live and work; require notice of a move out of state before it occurs. Condition employment on your right to decide whether the employee can work for you from anywhere. Ignorance is not a defense against violating local law. If you allow remote work, learn about and comply with applicable law. Employers should frequently check in with remote workers to verify their location and compliance with agreements. Update policies and handbooks on remote work rules. Offer letters and remote-work agreements should define where work can be done and should require permission before moving out of state. Be prepared to end relationships with workers who move to places that do not work for you.
INCIDENTS OF WORKPLACE HARASSMENT INCREASING, WHILE CHARGES FILED CONTINUE TO FALL: In the early days of the pandemic, there was speculation that workplace harassment would decrease when so many workers shifted to remote work. Some recent surveys indicate that hasn’t been the case, and that incidents of harassment have been increasing. Possible reasons for this spike include the stress of the pandemic, the fact that remote workers may lack the kind of personal connections with colleagues that might otherwise hinder poor behavior and a more casual approach to conversations due to working in a more relaxed environment. Zoom meetings have also provided a whole new forum for trouble, with employees behaving badly (sometimes while thinking they are off-camera). The quick and unexpected shift to remote workforces may also have left many employers unprepared for the challenge. To combat harassment in the remote work era, employers should ensure that their policies expressly apply in remote work settings and that employees are trained to recognize remote harassment. Recognize that remote workers, especially those who have never worked in the office, might be more reluctant to trust their supervisor or HR representative with concerns. Minimize obstacles to reporting, and provide multiple avenues for concerns to be raised.
Interestingly, although internal reports of harassment appear to be on the rise, federal discrimination charges continued to fall nationally over the last year. Once again, retaliation, disability, and race charges were the most commonly asserted claims nationally. In Utah, the most common charges filed were retaliation, disability, and sex-related. Possible explanations for the apparent disconnect between an increase in harassment incidents and a continued decrease in charges filed include that the job market is exceptionally strong for workers currently, and the economy is not in recession. Historically, those are factors that have correlated to a lower number of discrimination claims.
EMPLOYEE MOONLIGHTING AND REMOTE WORK: A movement trending among some remote workers advocates holding multiple remote jobs at the same time, while concealing the other jobs from the involved employers. This approach is sometimes referred to as “over employment,” a term coined by the website www.overemployed.com, which provides tips and sells coaching services for workers who want to try their hand at holding multiple remote jobs simultaneously. Proponents say that they work fewer than 40 hours total per week, for all jobs held. Employers should determine what limitations on outside employment are appropriate for their organization, and craft corresponding policies. Possible considerations include whether outside employment is for a competitor, creates a conflict of interest, uses company time or affects the worker’s ability to do the job during their expected work hours, uses or discloses confidential company information, or uses company-provided resources. When creating such company policies, be sure to check applicable state laws.
NLRB SIGNALS POSSIBLE REVERSAL OF TRUMP ERA BOARD DECISIONS: There’s a lot going on at the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act (NLRA). With a 3-2 majority of Democrat-appointed members on the 5-person panel, the Board is preparing to revisit certain decisions made during the last administration. The Board has recently invited a briefing in a case called Stericycle, Inc., 371 NLRB 48 (2021) regarding the issue of what standard should be used to determine whether handbook rules are lawful under the NLRA. The Board invited all interested parties to weigh in through briefing. This development is significant. Longtime readers of these updates may recall that during the Obama administration, the NLRB took aim at handbook rules requiring civility and harmonious conduct, saying that such rules tended to chill employees’ exercise of rights under the NLRA to discuss terms and conditions of employment, and to act together to improve them. In 2017, the Board reversed course and held that certain categories of employer rules, including civility rules, are always lawful for employers to maintain. The Board’s invitation for briefing in Stericycle indicates yet another possible change in the standard used to evaluate the legality of handbook rules.
Similarly, the Board has invited a briefing in a case called The Atlanta Opera, Inc., 371 NLRB 45 (2021) about whether it should reconsider the test it adopted in 2019 to determine whether a worker is an independent contractor. The 2019 decision marked a return to prior precedent after the Board had adopted a more stringent test during the Obama era. Again, this signals a possible return to a test that makes it more difficult for a company to establish independent contractor status.
Finally, the Board’s General Counsel has instructed field offices to work with the Division of Advice on all cases presenting issues related to employee use of company-provided email for union organizing purposes (as well as other electronic platforms including Slack, Discord, GroupMe, etc.). In late 2019, the Board held that employers may prohibit the use of company email for organizing purposes as long as another non-work use was also prohibited. The General Counsel’s focus on this issue suggests that she believes that the 2019 decision should be revisited. Similarly, she has instructed that the Division of Advice should be involved in all cases related to confidentiality rules in the workplace, including workplace investigations. Stay tuned to these updates for further developments on these topics.
EEOC UPDATES GUIDANCE RELATED TO COVID AND ADA: The EEOC recently released updated guidance on the intersection between COVID-19 and major federal employment laws. In particular, the agency explained that COVID-19 may be considered an ADA-protected disability in certain cases. While mild or asymptomatic cases of the illness do not constitute an ADA-protected disability, other more severe cases, including “long COVID” presentations, maybe a disability and thereby trigger the accommodation, non-discrimination, and non-retaliation components of that statute. Additionally, the EEOC’s guidance addressed employers’ obligations to provide religious exemptions for vaccination and masking requirements under Title VII. Employers must provide exemptions to employees with sincerely held religious beliefs.
TENTH CIRCUIT SAYS EMPLOYERS MUST PAY FOR COMPUTER BOOTUP TIME: On October 28, 2021, the U.S. Tenth Circuit Court of Appeals handed a win to call center employees in a collective action case filed under the federal Fair Labor Standards Act (FLSA)–Peterson v. Nelnet Diversified Solutions, LLC. The case involved call center employees who spent a few minutes (about 2 or 3) each morning logging into their employer’s computer systems. The employer did not pay employees for this time. The Tenth Circuit found in favor of the employees, concluding that the employer could have estimated the bootup time and the size of the aggregate claim was not so small as to be de minimis.
Mike O’Brien | email@example.com