Category: Labor & Employment

COVID-19 Telecommuting Tax and Leave Issues for Employers

Months into the COVID-19 pandemic, many employer telecommuting arrangements remain in place, with several large corporations opting to extend these arrangements well into 2021.  The benefits of such arrangements have been clear for many employers during the pandemic, including that they permit continued productivity while keeping employees safe.  However, the longer that employees remain out of the office, the more telecommuting-related issues arise, including with respect to taxation of employee income and leave requirements, which we discuss below.

Tax Implications of an Employee Working Remotely Due to the COVID-19 Pandemic

As a general rule, employees pay income tax in the state in which they perform services for an employer.  For example, if a teleworking employee lives and works entirely in New Jersey despite the fact that her employer is located in Florida, the worker’s income tax would be withheld according to New Jersey law and paid to the State of New Jersey.  Many states have reciprocal agreements with one another on the treatment of taxes when an employee works in one state and lives in another.  Two neighboring states will agree that an employee who works in State A can pay income tax in their home State B, allowing the employee to file one tax return each year.  In the absence of tax reciprocity agreements between neighboring states, employees may be subject to income taxes in two states (for example, New York and New Jersey).  With masses of employees teleworking in a different state from their typical work arrangement, where the employee should pay income taxes becomes increasingly complicated.

Some states have addressed this issue and other business-related tax implications caused by COVID-19.  For example, the Massachusetts Department of Revenue issued emergency regulations concerning telecommuting employees, outlined in a Technical Information Release (“TIR”).  The TIR became effective on March 10, 2020 and remains in effect until Governor Baker gives notice that the state of emergency is over.  The TIR clarifies (1) the treatment of personal income taxes for employees currently working outside the state (i.e., telecommuting) due to COVID-19; (2) sales and use tax nexus for vendors with a “physical presence” in Massachusetts solely due to COVID-19; (3) whether a business is subject to a corporate excise tax with employees currently “conducting business” on its behalf in Massachusetts; and (4) whether to tax employees currently working inside or outside Massachusetts for Paid Family and Medical Leave purposes (more on this piece below).

New Jersey similarly issued FAQ’s addressing telecommuting tax implications.  The state’s Division of Taxation waived the “nexus-creating” impact on out-of-state businesses with employees currently working in New Jersey as a result of COVID-19.  The Washington D.C. Office of Tax and Revenue published similar information stating that it will not impose a corporate franchise tax nexus on employers because employees are telecommuting during the public emergency caused by COVID-19.

In the absence of guidance from each state on remote work tax implications, employers are encouraged to consult legal counsel or their accountants on how out-of-state remote workers impact company tax obligations.

Leave Law Implications of Employee Remote Working

It was hard enough before the pandemic started to untangle the complex web of leave entitlements that may apply to an employer’s workforce in different states.  This web of leave laws becomes even more complicated however, when employees telecommuting in a different state from which they typically work begin to impact the employee’s eligibility for local leave.

For example, how does an employee who regularly works in New York City but is now working remotely from New Jersey accrue sick leave?  Is the employee entitled to New York City Sick and Safe Time and/or New Jersey Sick Leave?  Ultimately (and absent additional guidance) the answer will depend on the eligibility requirements of the leave, and the specifics of the employee’s work history.

In this scenario, New Jersey’s FAQs on sick time provides that “a telecommuter who routinely performs some work in New Jersey is entitled to full earned sick leave covered under [New Jersey’s] Earned Sick Leave Law so long as the employee’s base of operations or the place from which such work is directed and controlled is in New Jersey.”  Based on this guidance, would an employee who typically works in New York City, but who is currently telecommuting in New Jersey as a result of the pandemic be entitled to sick leave under New Jersey law?  As the pandemic, and in turn this telecommuting arrangement, continues, at what point does the employee’s base of operations shift to New Jersey requiring the employer to provide sick leave?

At the same time, would this employee still be entitled to accrue sick leave under New York City’s law (and New York State’s new law, discussed in our previous post)?  New York City’s law, which was recently amended, has interpretive guidance (applicable under the old law) stating that an employee only accrues sick leave under the New York City law when they perform services in New York City.  If they are subject to a temporary telecommuting arrangement, do they lose eligibility to accrue New York City sick leave?  Will New York City update its guidance to address this issue?  Will New York State issue guidance under its new law to address this issue as well? Employers should also be mindful that employees may be able to maintain multiple accruals depending on where they perform services.

In Massachusetts, the state has thankfully clarified how to treat employee eligibility for the Massachusetts Paid Family and Medical Leave Act.  Employers and employees began contributing to the Commonwealth’s trust for paid family and medical leave benefits back in 2019, and most leave entitlements will become available in a few short months on January 1, 2021 (see our blog posts on preparing for Massachusetts Paid Family and Medical Leave here and here).  However, many employees regularly working in Massachusetts commute in from neighboring states including Rhode Island and New Hampshire.  With such employees now living and teleworking outside of Massachusetts, should employers still deduct contributions from employee paychecks?  Fortunately, the Massachusetts DOR addressed this issue in its Technical Information Release described above:  An employee who previously performed services outside of Massachusetts and was not subject to PFML will not become subject to PFML solely because the employee is temporarily working from home in Massachusetts.  Likewise, an employee who previously performed services in Massachusetts but is temporarily working from home outside of Massachusetts solely due to COVID-19 continues to be subject to the PFML rules.  However, if employers decide to extend teleworking arrangements beyond the pandemic, this guidance will no longer apply.  Employers will need to determine if and when an employee becomes subject to (or is no longer subject to) Massachusetts Paid Family and Medical Leave.

Employers may be able to conduct a quick analysis to determine whether an employee is or is not entitled to a certain leave benefit while COVID-19 state of emergencies remain in place in many states.  However, if long-term telecommuting arrangements become the norm after the pandemic ends, employers must reevaluate applicable leave policies to ensure they align with their new remote workforce.

Parting Shot

As the last several months of telecommuting has taught us, working from home can have both benefits and drawbacks.  Employers are encouraged to consult with counsel before making tax and leave-related decisions that impact employees, as they relate to remote working during the COVID-19 pandemic.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
For more articles on tax and labor topics, visit the National Law Review Labor & Employment section. 

Inclusivity and High Performance Begins with Psychological Safety

A workplace where employees believe they can speak up candidly with ideas, questions, and concerns, and even make mistakes without fear of reprisal or adverse repercussions, contributes to inclusivity and can improve performance. In such a work environment, employees feel comfortable asking questions, admitting what they do not know, or expressing their work-relevant thoughts and feelings. This construct is called psychological safety.

According to Lisa H. Nishii, Ph.D., Associate Professor of Human Resource Studies and Director, International Programs, in the School of Industrial Labor Relations of Cornell University, with regard to psychological safety:

The issue to think about here is if team members can’t bring themselves to speak what’s on their mind — that is they censor themselves, then they won’t experience inclusion, nor will the group benefit from their perspectives. If team members don’t trust each other, then they’re going to waste time and energy thinking about what they should say, and what they shouldn’t say, and wonder about the true intentions of their peers when they’re interacting with them.

In comparison, when employees feel free from worrying about repercussions, how they will be perceived, or what people will think of them, they are able to be more engaged and connected in the workplace. They spend less time and energy being stressed or anxious, can create more mental space to think creatively, share their unique perspectives, and are more actively engaged in problem solving.

Psychological safety is important for all employees to feel included and is particularly important for employees who have been historically underrepresented in a particular field or workplace. I recall an early experience as an African American attorney working in a predominantly white law firm. On the first day, I filled out paperwork in a large conference room decorated with portraits of the founders of the firm — all white men. I was introduced to the office manager and head of the class action practice group — all white. I was then provided a firm manual on trends in class action litigation including photos of the authors — all white. One of the initial messages conveyed to me from seeing these images was that I did not belong. These initial messages, compounded with seeing few African Americans at the firm and even fewer in leadership positions, created an environment where I did not feel safe to ask questions, fully engage, or share my viewpoint or perspective — not because of a lack of skill or talent, but because my environment did not feel safe to authentically show up in.

Psychological safety assists in creating an inclusive environment. Inclusion enhances performance and retention, which furthers a company’s ability to meet its goals and financial targets. However, in order for organizations to get the benefits of inclusion, employees from underrepresented groups need to feel comfortable presenting their authentic selves. If an employee does not feel welcome or included, the employee will engage, if at all, out of obligation and not with the uninhibited feeling of being a part of a psychologically safe organization.

Here are six tips to create psychological safety for employees in the workplace, particularly for employees who have been historically underrepresented:

1. Understand Stereotypes and Preconceptions, and Conduct a Diversity and Inclusion Assessment

We all have conscious and unconscious biases. Unconscious biases are more concerning because, by definition, we are not fully aware of them. Unconscious biases are beliefs about certain groups of people that individuals form outside their own conscious awareness. A critical step in creating psychological safety is to understand one’s personal biases, along with those of the organization.

Therefore, an initial step in creating psychological safety is discussing bias, as well as conducting anti-bias training. Additionally, conducting a diversity and inclusion assessment can provide your organization a data-driven understanding of the current workplace demographics and culture around diversity and inclusion. Weldon Latham, founder of the unique Jackson Lewis Corporate Diversity Counseling Group, has been representing Fortune 200 companies and conducting diversity and inclusion assessments for over 20 years. He advises:

Implementing diversity initiatives in a vacuum can actually be harmful to an organization. A better approach is to conduct a diversity, equity, and inclusion (“DEI”) assessment of key metrics and cultural indicators, and prepare a DEI Strategic Plan that will inform the development of effective initiatives.

2. Empathize and Be Curious

Put yourself in the shoes of a new employee and try imagining what they are going through. This is even more important when the incoming employee is of a different race, age, gender identity, sexual orientation, ability, or status different from the majority of employees in the same or similar role. Organizations might be tempted to apply a one-size-fits-all approach to creating teams or assigning supervisors without understanding the potential for individuals who are underrepresented to feel excluded. You may need to empathize with the experience of an employee who finds themselves doubted or judged because of personal characteristics. This might alter how you create teams or assign supervisors.

As a result, curiosity becomes important. According to dictionary.com, curiosity is a “a strong desire to know or learn something.” As it relates to diversity, curiosity is having a strong desire to learn about the experiences of others to create an environment where employees feel seen and heard, and uninhibited to share their perspectives.

Empathy and curiosity in the workplace include taking the time to ask employees about their ideal supervision: the style of communication (email or call), type of feedback (direct or example), and frequency of checking in (daily or weekly). It does not mean accommodating all of these requests, but listening and trying. This not only builds trust but encourages employees to “buy in” or feel engaged if they feel they have had some say-so in their work experience.

3. Onboard with Intentionality

An important step in mitigating cultural barriers occurs at the start of employment. Michael D. Watkins stated in his Harvard Business Review article, “7 Ways to Set Up a New Hire for Success,” effective onboarding “brings new employees up to speed 50% faster, which means they’re more quickly and efficiently able to contribute to achieving desired goals. Effective onboarding also dramatically reduces failure rates and increases employee engagement and retention.”

Often employers believe in hiring talent and providing training over time. But making efforts to help employees feel welcome and valued upfront will build confidence and belief that they belong. It will also reduce stress and anxiety and create an initial feeling that it is safe to engage or add value. Moreover, if an organization lacks diversity, careless onboarding can heighten feelings among underrepresented employees of not belonging.

4. Be Consistent

Litigation often results when communication and behavior are not aligned. Make sure your actions in the workplace match your messaging. Over the past several months, employers have released statements about racism and made various commitments to diversity and inclusion. Similarly, more employers are requiring implicit bias training. Public statements and training, however, must result in changes in workplace behavior, otherwise you lose credibility with employees.

Similarly, some workplaces have “unwritten rules” on achieving success. This runs counter to an inclusive environment because there is inconsistency between written metrics for performance and promotion and the realities of the workplace. If an inclusive environment was in place and functioning, there would be no need for “unwritten rules.” Until that is the case, knowing the “unwritten rules” or what you are “up against” at a minimum empowers an individual to make more informed decisions about navigating their way in the workplace.

Psychological safety ultimately involves trust, which takes time to build and work to keep. If an employer’s actions around diversity and inclusion are inconsistent with its messaging to employees or to the public, the employer will lose credibility. Employees, particularly those who are underrepresented or who have been marginalized, will feel less safe in the workplace because of these inconsistencies.

5. Develop Opportunities for More Interpersonal Interactions

Employees need to have more opportunities to interact organically to form social bonds and trust over time. I can recall as a junior attorney speaking with a white senior attorney whom I was starting to work with more. She asked about my weekend. I responded that I went to a concert. She asked, who did I see? I felt uncomfortable saying “Public Enemy” because I felt she might not know them or might judge me in a way that would negatively impact our working relationship. Instead, I answered “a band I used to listen to in college.” As we worked together, we were able to get to know one another more and I was able to share more about myself. Through this rapport, we both realized we had more in common than we may have initially perceived. As I built social ties, it was easier to ask for help, acknowledge when I did not know something, or challenge a strategic decision.

When management takes the time to build an understanding of other people, it becomes more comfortable to speak up. It is helpful for workplaces to think of ways to foster and support positive, healthy interactions among employees. This may include collaborations across teams, informal discussion at periodic team meetings, or setting boundaries and expectations for employee interpersonal engagements that are informed by inclusion.

Moreover, if employees feel more comfortable in the workplace, they are likely to discuss any disputes internally and seek to resolve them cooperatively.

6. The Value of a Diverse Pool of Employees

When you create a work environment where employees see a representation of themselves in varying positions within the workplace, they are more likely to feel comfortable being themselves. One way to help achieve this is to increase the diversity of the pool of candidates considered for positions. The Rooney Rule in the National Football League and the Mansfield Rule adopted by numerous law firms are two examples of ways to increase diversity within all levels of an organization.

Diversity and inclusion is a journey. Like most journeys, a well-crafted vision is key to its success, but be wary of legal traps. Failing to think strategically about diversity can result in employees feeling unsafe in the workplace. A well-crafted diversity and inclusion strategy fueled by data from a diversity assessment creates more employee engagement, less employee turnover, and, importantly, helps reduce stress, anxiety, and fear that may result in litigation.

Jackson Lewis P.C. © 2020
For more articles on the legal industry, visit the National Law Review Law Office Management section.

Four Tips to Retaining & Sustaining Your Team’s Motivation During COVID-19

It’s no surprise the novel COVID-19 pandemic is upending the lives of employees who are struggling to focus and stay engaged at work as fears of becoming unemployed or ill loom. As partners grapple with staff changes, juggling client and colleagues’ expectations and adjusting to a new work environment, now more than ever, they’ll need to step in and navigate the new reality of the workplace during this global crisis in order to maintain their employees’ morale. Here are a few ways to keep your team motivated and engaged during these unprecedented times:

  1. Celebrate the big and small wins: No small effort goes unnoticed. Try celebrating small wins, such as a successful call with a potential client, a project being finalized ahead of schedule, or brainstorming a creative idea that piques the client’s interest. Notify other team members as well so everyone can share in the celebration. The big wins almost always receive recognition but getting into the habit of showing appreciation for the small victories will keep staff optimistic and productive.
  2. Proactively assist with other projects: Being buried in projects makes employees feel overwhelmed, stressed and anxious. If you notice an assignment is taking them longer than usual, offer to support certain elements of the project or provide suggestions on how to streamline the process. Another helpful solution is extending deadlines and pulling in other team members that can contribute in a meaningful way. This not only fosters a sense of collaboration, but it creates a healthy manager-employee relationship that survives trying times.
  3. Conduct regular check-ins: With the simple touch of a button, you can connect with people in an instant via FaceTime, Zoom, or Skype. By scheduling and consistently checking-in with your colleagues every week, you allow them the opportunity to voice their concerns and strategize next steps without back and forth emails and text. It also allocates time for human interactions and closeness to help diminish feelings of isolation and loneliness.
  4. Laughter is the best medicine: Who says work must be boring? If you see an article that relates to your industry and it has an interesting or humorous angle, share it. Laughter is the best medicine in hard times and can serve as a stress reliever. Every time you come across something positive, routinely send it around as a “thought you might like this!” to solicit a laugh or two.

Every day presents new opportunities and new challenges. While there’s no clear answer as to when things will return to normal, here’s one thing employers should never forget: a community-driven experience always enables individuals to go the extra mile.

© 2020 Berbay Marketing & Public Relations
For more articles on the legal industry, visit the National Law Review Law Office Management section.

Toward a More Expansive View of Mentoring

Mentoring has increasingly been recognized as a critical ingredient of success in many endeavors in individuals’ lives. In many instances, however, mentoring tends to be depicted as a relationship where a senior leader takes a junior professional under their wing and imparts the “formula” for success. Thus, mentoring programs often focus on pairing each junior employee with one senior person who is designated as their mentor.

Our firm’s mentor surveys and interviews indicate that while such pairings can lead to desired outcomes, investing in building and maintaining a more expansive view of mentoring is likely to be even more effective. Cultivating a shared understanding that each individual can be an effective mentor in their area(s) of comparative strength encourages long-term mentoring relationships that emerge and evolve organically, and enables an organization to make the most of its mentoring resources.

While there is widespread consensus that mentoring is critical to the long-term success of an organization, defining mentoring is more challenging than it seems at first glance. When asked, each of our firm’s leaders defined it slightly differently, as a “process,” “form of leadership,” “opportunity,” “mindset,” “set of actions,” or “ability,” among other things. Realizing all of these responses are valid, we find it helpful to focus not on what mentoring is but rather on the behaviors that are involved in effective mentoring. We organized our approach by segmenting mentoring into four distinct elements—feedback, opportunity creation, connections and counsel, and role modeling. We discuss each of these in turn, including specific recommendations for both mentors and mentees from our mentor surveys and interviews.

Feedback

Mentors play a critical role in recognizing positive contributions, offering specific coaching on work-product or delivery, and providing direct, clear, and actionable feedback to mentees. Assigned evaluator roles for performance review purposes can be the basis for mentoring relationships to take hold. However, our data indicate that the most effective mentor relationships are not based on an assigned evaluator role. Many of our survey participants indicated that working together on projects provided the best opportunity for feedback. To take advantage of that opportunity, a mentor should “give real-time feedback, discussing what is the best way to handle a given situation and why.”

Opportunity Creation

In developing future leaders, it becomes increasingly important for mentors to proactively identify opportunities that not only enable the firm to serve its clients or customers in the best possible way but also align with mentees’ career plans and create “stretch roles” to accelerate their career development. It is valuable to “be explicit when you are providing an opportunity to an individual. For example, when you would like to staff an individual on a project that will help them develop expertise in given area, don’t just ask them to work on the project—explain why this is an opportunity.” Mentees benefit greatly from a targeted approach to opportunity creation: “Think of providing specific opportunities to specific people … for example, staff individuals on repeat projects with the same clients so that they can develop client relationships.”

Mentors should not see their role as limited to personally offering opportunities to mentees but rather take a broader perspective. For example, they should “watch out for opportunities for their mentees, inform them of opportunities they may not be aware of (because mentors have a more firm-wide view than mentees), and make the connections they may need to take advantage of such opportunities.”

Mentees have to share this responsibility, in part by being specific about what opportunities they are interested in, such as opportunities involving a particular topic, a stretch role, or a particular client. This allows the request to have “the benefit of triggering a memory when an opportunity arises, rather than leaving it to chance for a mentor to make the connection.”

Effective opportunity creation can also take the form of the mentor sharing their network with the mentee, making introductions, and/or creating visibility for others who do not have exposure to the mentee. Mentors should “help others around the organization get to know their mentees, their strengths and their contributions.”

Mentees should “ask their mentors for ideas and help in creating connections to other potential mentors.” In this context, the emphasis on the importance of female-to-female mentoring represented the only discernable distinction in comments we received from female and male participants in our mentor surveys and interviews. As one female survey participant commented: “I need female mentors to ask about things such as how to assert myself while being genuine.”

Connections and Counsel

Mentees often seek information about how to navigate the organization and career development in general, or a complicated situation in particular. Acting as a thought partner in providing career counsel that is both specific to the individual and actionable is critical to the development of future leaders: “Rooting for an individual and helping them with specific problems is great, but not sufficient. Your mentees also need partnering to help them think through their career goals and how to achieve those goals.”

In addition, mentors should “remember that just telling mentees the variety of things they can do to advance in their careers is not sufficient. Mentees need help figuring out how to prioritize the various things they can do. Mentors should ask questions that identify areas where their mentees ‘don’t know what they don’t know.’ They should share what they can to demystify how things work, with a client or expert, within the firm, or within our industry.”

This involves “recognizing and sharing patterns mentees may not see. One of the benefits of experience is pattern recognition. Often, the things mentors take for granted due to experience are very illuminating when shared with mentees who have less experience.” As a corollary, mentees “should be specific in asking questions that mentors can react to, as opposed to broad questions like ‘what should I do with my career?’, which is hard to respond to in a meaningful way.”

Role Modeling

Role modeling as a mentor is most effective when it goes beyond leading by example. In its most complete form, role modeling includes actively mentoring future mentors, rather than assuming that mentees will naturally invest time in mentoring others. Senior leaders can explicitly ask those in managerial roles to “talk to their team members who have management responsibilities about expectations and strategies for mentoring on teams.” Leaders can “create a culture of accountability for mentoring on teams by regularly asking about how team members are doing and how the team can be effective together in developing each other.”

In addition, one of the most powerful levers for effective mentoring—and one that can be used without much incremental investment of time—is providing opportunities for mentees to learn through observation or osmosis. A quick follow-through that makes the observation explicit is all that is required. For example, “after a client call or meeting, take a few minutes to explain why you handled things as you did to enable your mentees to learn how to serve the client in the best way possible so that they can benefit from the wisdom you have developed through experience.”

In parallel, mentees should “identify the opportunities to learn through osmosis and recognize that as an opening. When you observe something you want to emulate, ask the mentor how they thought about it, prepared, and learned how to become skilled at the behavior you observed. When you have gained insight from observing a behavior, acknowledge the value and describe why it was helpful. This will encourage mentors to be more explicit in the future.”

It is rare for any one mentor to be equally adept across the four elements discussed above. As one survey participant suggested, “The bottom line is that mentoring is not a one size fits all. We should all ‘mentor’ in a way that is natural and comfortable—and perhaps stretch a little beyond that.” This suggests that a single mentor will rarely be able to fulfill a mentee’s needs across all four elements. The experience of another survey participant highlights the importance of cultivating a network of mentors with different experiences and styles who each excel at different elements of mentoring:

I’ve had multiple excellent mentors. For example, I learned a lot about the nature of our work from Alice. Being in the room and watching her interact with clients has been extremely helpful. Also, she thinks aloud and it was very helpful to learn how she thinks. But Alice is not a good business development mentor. She says “just go have lunches.” She’s not helpful to me about how to navigate the firm, who I should be connected to, and how to most effectively connect with them. Bob is great at that. He tells me the specific things I can do. He thinks a lot in advance, then provides clear direction and targeted advice about next steps.

The recognition that different people excel at different elements of mentoring prevents viewing individuals as either categorically strong or categorically weak mentors. Instead, it allows an organization to make the most of the comparative strengths of each individual, expanding overall mentoring capacity and the pool of potential mentor relationships.

Segmenting mentoring elements into four discrete areas is not the only way to broaden the available set of connections. Our mentor surveys and interviews also highlight the importance of peer and “reverse” mentoring relationships. Connections among peers are critical to integrating new staff and creating a sense of shared affiliation with the firm, which supports retention. We see enormous value accruing to those who “initiate and maintain peer mentoring relationships; building trust-based relationships with colleagues who have similar experiences benefits their careers in the short and long term.”

“Reverse” mentoring refers to instances where someone more senior identifies a mentor who is less senior to them. Senior leaders of our firm often identify reverse mentors as part of their mentor network and suggest that input from junior colleagues enables them to become better leaders.

Cultivating a well-established mentor-mentee relationship requires mutual awareness of the connection as a precursor to commitment by both parties. While our surveys show extensive mentor relationships identified by both mentors and mentees, the connections are not consistently named as such by both parties. We refer to instances where an individual identifies someone as a mentee and the mentee identifies the individual as a mentor as a “matched pair.”  However, we also find a substantial incidence of “unmatched pairs,” suggesting that all too often, the connection between a mentor and mentee is left unstated. This may be in part because not every individual views mentoring in the broad terms described above. Especially in those situations, both mentor and mentee would benefit greatly from a shared understanding of available mentoring opportunities.

The solution is simple, but often will not happen without being prompted. Mentors should tell mentees that they see them as a mentee, explain why, and share how they can act as a mentor, which may include things the mentor has already been doing on the mentee’s behalf, but did not naturally think to share. Similarly, mentees should explicitly tell mentors that they see them as a mentor, explain why, and indicate which specific elements of mentoring they would appreciate mentoring from them.

In sum, focusing on cultivating a network of mentors who play different roles based on natural strengths and expanding our view of who can be a mentor is likely to be much more effective in realizing our highest potential, for both developing people and building firms with strong mentoring cultures.

Note: The quotes used in this article have been redacted to preserve anonymity and edited for clarity. The views expressed in this article are solely those of the authors, who are responsible for the content, and do not necessarily represent the views of Cornerstone Research.

Copyright ©2020 Cornerstone Research
For more articles on the legal industry, visit the National Law Review Law Office Management section.

Hawaii Tightens Ban-the-Box Law, Further Limiting Use of Past Criminal History in Work Decisions

Hawaii has narrowed the scope of what employers can consider regarding an individual’s conviction history when making employment decisions.

Hawaii employers have long been required to limit their consideration of felony and misdemeanor convictions to a 10-year lookback period, unless they fell within one of the statutory exemptions as part of its longstanding “ban the box” legislation. State law has further required employers to apply a “rational relationship” test before denying a prospective or current employee a position following a background check, which means an employer may only consider those convictions occurring in the permissible time period if there is a “rational relationship” between the convicted crime and the prospective job.

The Hawaii legislature has taken further steps to narrow the scope of what employers can consider regarding an individual’s conviction history. The concern was that, without further change, the “rational relationship” test would still be ripe for subjectivity, creating a potential for inconsistent application due to express or unconscious bias, which can result in discrimination against a person who has long since paid their debt to society and who poses little to no risk to the employer or to the public. Consequently, on September 15, 2020, the Governor of Hawaii signed into law Act 051 (20), amending Hawaii Revised Statutes Section 378-2.5 by reducing the “lookback” period and differentiating between felonies and misdemeanors. The intent was to minimize any possible conscious or unconscious bias that arises when an employer views an “old” crime when making employment decisions.

Felonies older than seven years and misdemeanors older than five years are no longer relevant toward job suitability determinations, unless they fall within one of the existing 18 statutory exemptions, e.g., Department of Education employees. Even with these distinctions and limited “lookbacks,” employers must still apply the “rational relationship” test when making employment decisions.

Additionally, the suitability determination with respect to relevant criminal history may only occur after the applicant has received a conditional job offer.

If an employer has extended a conditional job offer to an applicant or offered a current employee a promotion and the person’s background check reveals a criminal history for a Hawaii-based position, seek legal counsel to review any potential exposure, if applicable, arising out of the reduced “lookback” period and application of the “rational relationship” test before denying employment.

Jackson Lewis P.C. © 2020
For more articles on employment law, visit the National Law Review Labor & Employment section

This is Big: Visa Pathway Opens for Foreign Workers Seeking H-1B; H-2B; L-1 and J-1 Visa Stamps

An important court ruling by Judge Jeffrey S. White of the U.S. District Court for the Northern District of California has opened a visa pathway for temporary workers and their employers.

On June 22, 2020 President Trump issued a Presidential Proclamation 10052 (“Visa Ban”) which suspended the issuance of four types of visas:  H-1B; H-2B; L-1 and J-1, and also prohibited the admission into the U.S. until at least December 31, 2020 of persons subject to this Visa Ban.  Our past alerts on this Visa Ban may be accessed here.

The President claimed that he issued this Visa Ban purely for domestic economic reasons: to protect the U.S. labor force in the wake of the pandemic. But there is a strong argument that the President overstepped his authority in issuing this Visa Ban, since the underlying rationale of this Proclamation related to domestic policy-making (as opposed to keeping immigrants out of the U.S. for national security reasons).  Further, by a stroke of his pen, the President wiped out the availability of four categories of work visas specifically enacted into law by Congress.

Because the Proclamation allows for such limited exceptions to its broad reach, this Visa Ban has adversely impacted thousands of employers and temporary workers across the United States.  People who are subject to it simply cannot get L-1 or H-1B visa stamps at US Consulates abroad while the ban is in place (unless they fit into an exception/exemption based on the nature of their work).

As noted above, yesterday, the U.S. District Court for the Northern District of California upheld a legal challenge to this Visa Ban filed by plaintiffs including Intrax, Inc., the U.S. Chamber of Commerce (AmCham); the National Association of Manufacturers (NAM), the National Retail Federation, and TechNet.  The above-referenced association plaintiffs had filed the lawsuit on behalf of their association members claiming that the Proclamation exceeded the President’s authority and that it violated the Administrative Procedures Act (APA).   Now that the federal court in California has enjoined this Ban, members of the plaintiff associations can benefit from the injunction.  This means if an employer can show it is a member of one of these associations, or becomes a member of one of them, it can argue that the injunction applies both (a) when its employees apply for a visa abroad in one of these categories, and (b) when seeking to enter the U.S. in one of these otherwise banned visa categories.  

Joining a Plaintiff association is a straightforward matter.  For example, a company can join the American Chamber of Commerce by paying a fee of $250. U.S. Consulates should honor proof of membership in a plaintiff association in considering visa applications for one of these impacted visa categories.

It is rare to be able to take advantage of a legal ruling in this way, and all U.S. employers who depend upon their valued H-1B, H-2B, L-1 and J-1 workers, should immediately try to leverage this opportunity presented by this injunction.

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Susan J. Cohen of Mintz
For more articles on visas, visit the National Law Review Immigration section.

Election Season and the Workplace, Part 1: Employee “Free Speech” and Political Activities

With Election Day just around the corner, we’ll be highlighting some of the issues facing employers in a two-part series on elections and the workplace. In this first installment, we’ll look at employee protections around political speech and activity both in and outside the workplace. In Part 2, we’ll address statutory leave entitlements for employees to vote or engage in other political activities.

Political Speech in the Workplace

Political speech and activity in the workplace is a recurring source of employer concern, for a number of reasons. First, when these discussions or activities occur during working hours, they can impact performance, productivity, or even cross the line into unlawful bullying or harassment.

In addition, if the employer is a tax-exempt organization, certain political speech can also implicate the organization’s tax-exempt status. Many tax exempt-organizations are subject to significant restrictions on lobbying and political activities in exchange for the public subsidy that they receive. For example, a 501(c)(3) organizations may lose their tax-exempt status if they engage in political campaign activities or if a substantial part of its activities involve lobbying. Speech by an employee that constitutes political campaign or lobbying activity may be attributed to the organization if it can be inferred that an employee’s speech is made as a representative of the organization or that the speech has been ratified by the organization. This could happen, for example, if an employee, using their own social media account that the employee also uses to engage in speech on behalf of the organization, engages in lobbying activity by urging followers to contact their state representative to advocate for the adoption or rejection of proposed legislation.

Finally, when employees attend political rallies or support causes – for example, on social media – they may (intentionally or not) criticize or create a conflict of interest with their employer. How far employers can go to restrict employee speech and activity is a complicated question, governed by several sources of law.

Employee “Free Speech.”

Despite popular misconception, there is no general right to “free speech” in a private sector workplace.  As an initial matter, because the U.S. Constitution is primarily concerned with issues that involve state actors rather than private actors, the First Amendment does not prevent private employers from prohibiting political speech in the workplace.  Speech by public sector employees may be protected by the First Amendment, but only to the extent it involves a matter of public concern.  Therefore, subject to the limited exceptions discussed below, private sector employers are generally free to prohibit and discipline employees for discussing politics at work.

Free speech protections can extend to private sector employees by statute.  For example, Connecticut General Statute § 31-51q prohibits employers from taking any adverse action against employees for exercising their First Amendment rights, provided that such activity does not interfere with the employee’s job performance or the employment relationship.  As in the context of public sector free speech protections, courts have interpreted this statute to only protect statements made outside of the scope of employment, and not speech pursuant to official duties (e.g., reports of labor law or payroll violations).

In addition, Section 7 of the National Labor Relations Act (“NLRA”), which applies to both union and non-union employees, protects certain “concerted activities” of employees for the purposes of “mutual aid or protection.”  Political speech or activity that is unrelated to employment – for example, an employee distributing campaign literature encouraging co-workers to vote for their candidate or political party of choice – would not be covered or protected by the NLRA. The NLRA therefore does not prevent employers from prohibiting these purely political discussions or activities in the workplace.

However, political speech may be protected by the NLRA when it relates to the terms or conditions of employment.  For example, conversations regarding wages, hours, workplace safety, company culture, leaves, and working conditions may be deemed protected concerted activity and therefore be protected.  An employee who encourages co-workers to vote for a candidate because the candidate supports an increase in the minimum wage might claim protection under the NLRA.

The same rule generally applies to employee advocacy.  When employees are engaging in advocacy unrelated to employment, the National Labor Relations Board has taken the position that employees are simply acting “in the interest of the community at large and in furtherance of [their] own political agenda.”  For example, a construction worker engaging in advocacy involving police reform at a protest or before a legislative body would likely not be protected because the topic of the advocacy is unrelated to the employee’s job as a construction worker.  However, if the same construction worker was advocating before a legislative body in support of safety regulations that would impact the jobsite, the employee’s advocacy would likely qualify as protected concerted activity.

Therefore, despite that employers have broad authority to prohibit political discussions at work, employers should ensure that their policies and practices do not infringe upon rights granted to employees under state law or the federal NLRA.

Lawful Outside Activity/Off-Duty Conduct Statutes.

Many states have laws that prohibit adverse action against employees based on lawful activities outside the workplace, including political activities. For example:

  • In approximately a dozen states, employers are prohibited from preventing employees from participating in politics or becoming candidates for public office. New York Labor Law § 201-d prohibits employers from discharging or otherwise discriminating against employees because of their “political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal.”  Political activities are defined to include: (1) running for public office, (2) campaigning for a candidate for public office, or (3) participating in fund-raising activities for the benefit of a candidate, political party, or political advocacy group.  Similar laws exist in California, Louisiana, and Minnesota, among other states.
  • Other states – including Delaware, Florida, Massachusetts, and New Jersey– prohibit employers from attempting to influence an employee’s vote in an election. For example, in Florida, “[i]t is unlawful for any person … to discharge or threaten to discharge any employee … for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.”   A dozen or so states approach this issue in a more limited fashion by prohibiting employers from attaching political messages to pay envelopes.
  • At least two states, Illinois and Michigan, prohibit employers from keeping a record of employee’s associations, political activities, publications, or communications without written consent.
  • Washington, D.C. prohibits discrimination in employment on the basis of political affiliation. Despite its seemingly broad scope, this statute has been interpreted to only protect political party membership and not (1) membership in a political group, or (2) other political activities, such as signing a petition.

These laws vary considerably from state to state, so it is important for employers to consult the statutes in each jurisdiction in which they operate and ensure that their policies and practices are compliant.

Employer Access to Employee Social Media.

As employees turn to social media to discuss the election and other political and social issues, employers should remain mindful of restrictions on their ability to monitor or discipline employees for their social media use.  In addition to potential issues under the NLRA and state-level free speech guarantees, the federal Stored Communications Act (“SCA”) and a number of state statutes also regulate an employer’s ability to monitor employee social media activity.

The SCA affords privacy protections to certain electronic communications.  Although the law predates the advent of social media as we know it today, courts have applied it to unauthorized access of employee social media accounts.  Therefore, employers across the country should exercise caution before accessing employees’ social media accounts without their authorization or coercing employees to turn over information posted on social media.  Such actions not only carry risk under the SCA, but also under various state laws.  For example:

  • Approximately half a dozen states – including Colorado, New Hampshire, and Vermont – prohibit employers from requesting that employees change their privacy settings to make information on social media accounts visible to their employer.
  • In more than two dozen states – including California, Illinois, Louisiana, Maryland, New Jersey, and Virginia – employers are prohibited from requesting social media usernames and passwords from employees.

Despite these limitations, employers generally have significantly greater leeway to monitor social media activity conducted on the employer’s systems when such monitoring is pursuant to the employer’s written policy.  In addition, many of the statutes prohibiting employers from requesting social media log-in information contain exceptions that allow employers to request this information for the purpose of accessing an employer-owned device or account.  Employers relying on their internal policies to justify action with an impact on employees should always be mindful to interpret and apply those policies in a consistent and otherwise non-discriminatory manner.

*     *     *

All signs point to this year’s election season being one of the more contentious in U.S. history.  Given the wide range of federal, state, and local laws protecting employee speech and political activities, employers should: (1) review their policies to ensure that they are compliant with the laws in each jurisdiction in which they operate, (2) communicate these policies to managers and supervisors and provide effective training where necessary; and (3) monitor compliance on a regular basis.

© 2020 Proskauer Rose LLP.
For more articles on the election, visit the National Law Review Election Law / Legislative News section.

Federal Appeals Court Hands Down Important Ruling in Overtime Exemption Lawsuit

A federal appeals court earlier this year handed down an important ruling in an unpaid overtime lawsuit brought by a plaintiff who claims that his employer violated various provisions of federal wage and hour laws, including failure to pay overtime.

With the Fifth Circuit Court of Appeals’ ruling, employers will no longer be able to satisfy the salary basis component required to qualify an employee as overtime-exempt under federal wage and hour laws.

According to the unpaid overtime lawsuit, filed in U.S. District Court for the Southern District of Texas, the defendant Helix Energy Solutions Group violated the Fair Labor Standards Act (FLSA) when the company failed to pay the plaintiff his premium overtime wages.

Under the FLSA, employers must pay overtime-eligible workers premium overtime wages calculated at one and a half times their average hourly rate of pay for the time spent working past the 40-hour per workweek overtime threshold.

The plaintiff’s lawsuit claimed that he was improperly classified as overtime exempt when Helix Energy Solutions paid him a flat daily rate, regardless of the number of hours he put into his job each week.

The plaintiff claimed that he regularly worked more than 40 hours in a week on an oil rig but was not compensated with any additional premium overtime pay.

Helix Energy Solutions claimed that the company satisfied the salary requirements for the plaintiff to be overtime exempt when they paid him a daily salary because his weekly pay was greater than the minimum required under the FLSA.

While the trial court agreed with the defendant and dismissed the plaintiff’s case, the Fifth Circuit Court of Appeals rejected Helix Energy Solutions’ argument on appeal that it satisfied the criteria to classify the plaintiff as an independent contractor.

By ruling in favor of the plaintiff, the Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, now brings its interpretation in line with the Sixth Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.

Sources:

Buckfire & Buckfire, P.C. 2020
For more articles on employment litigation, visit the National Law Review Labor & Employment section.

COVID-19: FCA and PRA Updates on Working from Home and Key Workers

On September 24, the UK Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) updated their respective statements, originally published in March, regarding key workers and working from home during the COVID-19 pandemic. Both the FCA and PRA advised firms to follow government advice on remote working until notified otherwise.

In addition, the FCA further updated its statement in respect of work-related travel and the responsibilities of senior managers under the Senior Managers and Certification Regime (SM&CR), explaining that:

  • firms should continue to discuss working arrangements with staff and support their employees in facilitating appropriate working arrangements; and
  • senior managers are expected to take account of changes in the applicability of local and national lockdown restrictions and to review and update employee working arrangements on a continuing basis.

A key financial worker is one who fulfills a role that is necessary for a firm to continue to provide essential daily financial services to consumers or to ensure the continued functioning of markets. Firms should identify a key worker by determining which activities, services or operations, of which, if interrupted, are likely to lead to the disruption of essential services to the real economy or financial stability.

Individuals essential to support functions so identified are that firm’s key financial workers. Firms should also identify any critical outsource partners who are essential to continued provision of services, even where these are not financial services firms.

The FCA also suggests that firms consider issuing a letter to all individuals they identify as key workers. The FCA recommends that the letter includes a notice, expressly stating “the individual has been designated as a key worker in relation to their employment by [firm name]” and is signed by someone with appropriate authority.

The FCA update on remote working is available here.

©2020 Katten Muchin Rosenman LLP
For more articles on employment, visit the National Law Review Labor & Employment section.

New Legal Duty for Employers and Employees Regarding Self-Isolation in England Comes Into Force

The UK Government has enacted The Health Protection (The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, which came into force in England on 28 September 2020. Failure to comply with these regulations is a criminal offence, the penalty for which includes a fine of £1,000 for a first offence, with fines increasing up to £10,000 for subsequent breaches.

The new regulations place a legal requirement on employers and employees regarding the enforcement of self-isolation for individuals in England who test positive for coronavirus, or who have been identified as close contacts of someone who has tested positive for the virus. An employee who has been instructed to self-isolate must inform his or her employer (or agency, if the worker is an agency worker) of the obligation to self-isolate as soon as practicable. Failure to do this will amount to a criminal offence.

Once an employer is aware of an employee who has tested positive, it must not permit the employee to attend any place of work other than the place where the employee is self-isolating. (This does not apply if an employee is working from home.) Agencies must notify hirers of workers’ obligations to self-isolate.

An employee who is notified of the requirement to self-isolate whilst at the work premises must return home immediately as the period of self-isolation has commenced directly.

Valid forms of notification of the requirement to self-isolate are not specified in the regulations. The only form of notification that the regulations specifically exclude is the National Health Service’s (NHS) COVID-19 smartphone contact tracing app. Other than this, the regulations merely state that if an individual is notified that he or she—or someone with whom he or she has had recent close contact—has tested positive for coronavirus, the individual must self-isolate (usually for up to 14 days) in accordance with the regulations.

Additionally, the regulations do not specify how the employee should inform his or her employer of the obligation to self-isolate. A commonsense approach may be adopted and employers might need to accept that self-isolation could largely be self-certified, much like regular short-term sickness.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

ARTICLE BY Daniella McGuigan of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on labor law, visit the National Law Review Labor & Employment section.