Category: Labor & Employment

COVID-19 Whistleblower Protections: Few Options for Workers Reporting Unsafe Working Conditions

The United States has been rocked by the COVID-19 pandemic in innumerable ways and it has had profound and ongoing impacts on workers. One of the most vexing problems arising from COVID-19 has been protecting workers who object to employers that are failing to implement meaningful safety precautions to protect their workers during the pandemic. As just one of many examples, an Amazon employee was fired after he opposed the company’s failure to meaningfully protect warehouse employees who had potentially been exposed to the coronavirus. This article will examine our failures in addressing this problem through meaningful federal action and highlight instances where local legislators have passed laws to protect workers who find themselves facing this predicament.

The Deficiencies of Federal Law to Protect Workers During the Coronavirus Crisis

The primary federal law requiring a safe working environment is the Occupational Safety and Health Act (“OSH Act”). Section 11(c) of the OSH Act prohibits employers from discharging or discriminating against an employee because the employee exercised any rights under the Act, including the right to raise health or safety complaints. 29 U.S.C. § 660(c). The OSH Act theoretically protects an employee who refuses to work based on unsafe working conditions, although the requirements for a protected work refusal are stringent.

Unfortunately, the OSH Act does not effectively protect workers in general, much less in the face of a burgeoning pandemic. The Act does not have a private right of action, so employees who suffer retaliation for reporting unsafe working conditions cannot sue in court. Instead, Section 11(c) allows employees to file a complaint with the Occupational Safety and Health Administration (“OSHA”) and request that OSHA protect them. Thus, government officials ultimately decide what to do with the OSH Act complaint; if they fail to protect an employee, that employee has no other recourse under the statute. In addition, the OSH Act has a 30-day statute of limitations—the shortest of any federal anti-retaliation statute. Finally, the strict requirements governing what constitutes a protected refusal to work will leave many employees in the cold. OSHA officials have acknowledged the weakness of the OSH Act protections. In 2010, then-Deputy Assistant Secretary for Occupational Safety and Health, Jordan Barab, testified before Congress that Section 11(c)’s lack of a private right of action and statutory right of appeal were “[n]otable weaknesses” in the law. Mr. Barab also lamented the OSH Act’s “inadequate time for employees to file complaints.”

Several states have their own version of the OSH Act, protecting employees who raise concerns about workplace health and safety. Like the federal OSH Act, however, many of these state laws do not contain private rights of action. See, e.g., D.C. Code § 32-1117 (no private right of action); Md. Code, Labor & Empl. § 5-604 (same); but see Va. Code § 40.1-51.2:2 (providing private right of action and a 60-day limitations period for filing a complaint).

Proposed Legislation to Protect Whistleblowers

The Coronavirus Oversight and Recovery Ethics Act (“CORE Act”) put in place meaningful protections against retaliation for individuals who report waste, fraud, and abuse related to government funds that were distributed to combat the COVID-19 pandemic. Like other recent whistleblower protection legislation, it is primarily enforced through the Department of Labor but permits whistleblowers to “kick out” their claims into federal court. Further, language in the bill nullifies the effectiveness of pre-dispute mandatory arbitration provisions with respect to claims asserted under the law. In many ways, it is a model piece of whistleblower protection legislation.

One significant omission from the CORE Act, however, is language amending the OSH Act or otherwise granting meaningful protections to whistleblowers who report workplace health and safety concerns related to COVID-19. Thus, nothing in the bill purports to protect an individual who refuses to come to work, or opposes her employer’s practices, because her employer has failed to take sufficient steps to mitigate COVID-19-related risk to employee health. In most of the country, employees in that situation are left with the OSH Act as their primary recourse for protection against retaliation.

Given the clear deficiencies in the OSH Act’s protections of whistleblowers concerned about workplace safety, whistleblower advocacy organizations like the Project on Government Oversight (“POGO”) have pushed for Congress to pass legislation that would, among other things, “prohibit retaliation against essential workers making disclosures related to worker or public health and safety during the pandemic.” On June 15, 2020, in response to calls from groups like POGO, Senator Kamala Harris and Representatives Jackie Speier and Jamie Raskin introduced the COVID-19 Whistleblower Protection Actto expand the whistleblower protections of the CORE Act.

Protecting Whistleblowers at the Local Level

Given the lack of federal action to address this problem, some municipalities have passed legislation specifically designed to protect employees who report COVID-19-related workplace safety concerns. For example, Mayor Kenney of Philadelphia recently signed into law Bill No. 200328, which requires employers to “comply with all aspects of public health orders addressing safe workplace practices to mitigate risks” related to COVID-19. The bill further states that “[n]o employer shall take any adverse employment or other action against an employee” who refuses to work in conditions that do not comply with public safety guidelines, and that “no employer shall take any adverse employment or other action against any employee for making a protected disclosure.” A “protected disclosure” is defined as a “good faith communication” disclosing information “that may evidence a violation of a public health order that may significantly threaten the health or safety of employees or the public, if the disclosure or intention to disclose was made for the purpose of remedying such violation.” The legislation includes a private right of action and permits awards to successful litigants including reinstatement, back pay, compensatory damages, and liquidated damages “of $100 to $1000 on behalf of the City for each day in which a violation occurs.”

In late May, the City of Chicago enacted a bill that contained slightly narrower but still powerful protections. In the bill, the City of Chicago prohibited employers from retaliating against employees for complying with public health orders relating to COVID-19 issued by the City or the State or for following COVID-19-related quarantine instructions from a treating health care provider. The protections extend to employees who are caring for an individual subject to such a quarantine. The bill includes a remarkable damages provision entitling successful claimants to liquidated damages “equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place.”

These actions by municipalities are meaningful and offer critical protections to citizens living in those cities. At the same time, the need for this local legislation highlights the glaring absence of meaningful protections for workers in the rest of the country. It seems that every week we hear more horror stories about conditions in which workers are forced to work during this pandemic, lest they risk losing their jobs in the midst of a devastating economic downturn. The weaknesses in the OSH Act and the absence of even proposed federal legislation that would fill this critical gap in protection is a moral failure.

Copyright Katz, Marshall & Banks, LLP

For more on COVID-19 related whistleblowing, see the National Law Review Coronavirus News section.

DHS Rules Effective August 2020 Will Push Asylum Seekers Further into Poverty and Marginalization

In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications.  By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.

The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application.  This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays.  The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.”  But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs.

The second rule change, effective August 25, 2020, severely restricts eligibility for work permits while simultaneously increasing the waiting time for work permits.  This too will have dire consequences for asylum seekers struggling to survive while their asylum applications remain pending.  The new measures mandate the government to:

  1. substantially delay the issuance of work permits by more than doubling the waiting period to apply from 150 days to 365 days;
  2. bar asylum seekers from receiving a work permit if they attempt to enter the United States without inspection on or after August 25, 2020, unless they qualify for very limited exceptions;
  3. deny employment authorization for asylum seekers who file their asylum application after the one-year filing deadline, unless granted an exception;
  4. prohibit employment authorization for applicants who have been convicted of certain crimes or who are “believed” to have committed a serious non-political crime outside the United States;
  5. deny employment authorization applications if the underlying asylum application has experienced “unresolved applicant-caused delays,” such as a request to amend or supplement the asylum application or if the application is being transferred to a different asylum office due to a change in the applicant’s address;
  6. automatically terminate an asylum seeker’s work permit without provision for renewal if an immigration judge denies the asylum case and the applicant does not appeal to the Board of Immigration Appeals (BIA) within 30 days, or if the applicant does appeal but the BIA denies the appeal; and
  7. limit the employment authorization validity period to a maximum of two years.

The effects of these new directives will be devastating. Currently, the inability to work lawfully for at least six months after seeking asylum often leaves applicants homeless, hungry, and without access to health care.  Because federal law does not provide support such as income, housing, or food assistance to asylum applicants, dramatically increasing the waiting period for a work permit will exacerbate the conditions of poverty in which many asylum applicants find themselves.  Without employment authorization, asylum seekers cannot obtain health insurance under the Affordable Care Act, and often cannot apply for a driver’s license or benefit from public assistance programs that offer safe housing and access to food.  Federal law permits states to provide state-funded benefits to asylum seekers, but only about half of the states have extended benefits to that population.   Even when states do provide some public benefits to asylum applicants, it is often only for children, the elderly, or asylum seekers with specific health conditions.

Given these consequences, pro bono attorneys representing asylum seekers who are eligible to apply for a new work permit or to renew an existing work permit now should consider filing employment authorization applications before August 21, when the first of these rules goes into effect.

 

© 2020 Proskauer Rose LLP.

ARTICLE BY Erin M. Meyer and Angela Gichinga at Proskauer Rose LLP.
For more on the topic, see the National Law Review Immigration Law section.

Severance: To Pay or Not To Pay

As the economic downturn from the COVID-19 pandemic continues to impact businesses throughout the United States, many employers face the prospect of implementing reductions in force or other employee terminations. Common questions include whether employers are legally obligated to pay severance, whether offering severance is advisable in the absence of a requirement to do so, and how much to offer. As explained below, severance payments are generally optional and can be used by employers to achieve a number of important goals, including risk mitigation and litigation avoidance.

Are Employers Required to Pay Severance?

As of this writing, no federal or state law obligates employers to pay severance to employees upon termination. Under the federal Worker Adjustment and Retraining Notification (“WARN”) Act and some state equivalents, employers may be required to pay terminated employees wages and benefits for a certain period if they fail to provide adequate notice to those employees as part of a qualifying mass layoff or plant closing. However, these payments under the WARN Act are penalties for non-compliance with the notice requirement rather than true severance and, moreover, can easily be avoided by providing the required notice.

New Jersey will become the first state in the nation to require employers to pay severance in certain circumstances when amendments to its WARN Act equivalent become effective. As part of a series of employer-unfriendly laws enacted in January 2020, New Jersey will require large employers—even those who comply with WARN notice requirements—to pay one week of severance for each full year of service to employees who are terminated as part of a qualifying mass layoff or plant closing. Employers who fail to provide adequate notice must pay an additional four weeks as a penalty. Fortunately, New Jersey has delayed the effective date of this new severance requirement to 90 days after termination of the COVID-19-related state of emergency.

Although no law currently requires the payment of severance, an employer may legally obligate itself to provide severance in a number of scenarios, including:

  • An employment agreement, especially for an executive, may guarantee some amount of severance in the event of a termination without cause.

  • A company policy, whether contained in an employee handbook or not, may provide for severance for employees who are terminated through no fault of their own.

  • A collective bargaining agreement may contain a severance guarantee.

  • Federal, state, and local anti-discrimination laws may compel an employer to offer severance to similarly situated employees in order to avoid a disparate treatment claim.

A practice of paying severance may be viewed under some circumstances to create a plan under the federal Employee Retirement Income Security Act (“ERISA”), with attendant requirements.

Should an Employer Offer Severance?

Absent a requirement or obligation to pay severance, an employer may nonetheless choose to offer severance in order to avoid claims or litigation, to obtain other benefits, or as a matter of goodwill. Indeed, whenever an employer offers severance, the offer should be conditioned upon the employee’s signing a general release of claims against the employer, affiliated entities, and associated personnel. This is true whether there is a specific concern about a claim or lawsuit—for example, where the terminated employee has previously complained about alleged discrimination—or not. Note that certain claims and rights cannot be released by an employee even in exchange for severance, such as claims for unemployment and worker’s compensation and the right to file a discrimination charge with a government enforcement agency.

Employers can also use severance to obtain strategic benefits from terminated employees beyond the release of claims, including confidentiality and restrictive covenants such as non-competition, non-solicitation, and non-disparagement provisions. In some situations, employers may wish to include other provisions as part of the exchange, such as a requirement that terminated employees cooperate with post-termination transition work or be available as a witness for pending or anticipated litigation.

How Much Severance to Offer?

Unless there is a preexisting requirement, policy, or plan to pay severance in a specified amount, the amount of severance to offer is entirely up to the employer. The amount should be sufficient “consideration” to support the employee’s release of valuable rights/ claims; however, there is no minimum threshold or magic number. Ultimately, the right amount of severance is a function of how much the employer is willing to pay and how little the terminated employee is willing to accept in exchange for signing an agreement containing a general release and any other provisions desired by the employer.

A good starting point—though by no means a requirement or standard—is one week of base salary for every year of service. Using a formula to determine severance amounts based on tenure or some other objective criteria helps insulate an employer from allegations of discrimination or unfairness, especially in the context of a group termination. Still, an employer is generally free to adjust the amount of severance to address individual situations.

Severance can be paid in a single lump sum or in installments over time, within certain limitations under the tax code. Employers should note that severance pay will likely be deemed to be W-2 wages by the IRS and state tax authorities, thus requiring employers to withhold employee payroll taxes and to pay employer payroll taxes. In addition, receipt of severance may impact a terminated employee’s eligibility for unemployment insurance benefits.

There are also a variety of other items that can supplement severance pay and may help achieve the employer’s ultimate goal—getting an employee to give a general release or agree to other conditions. Perhaps the most common is subsidized health insurance continuation coverage, in which the employer makes up the difference between the cost for the terminated employee under COBRA and the rate paid by active employees. Other, non-monetary supplements include job placement assistance, reference letters and more.

Takeaways for Employers

Severance is a powerful tool that employers can use to protect against lawsuits, legal fees, unfair competition, and a host of other undesirable situations. It is critical that any offer of severance, whether contained in an agreement/policy or made in conjunction with a termination, include, at a minimum, a requirement that the terminated employee provide a general release of claims. Finally, severance agreements and policies require the input of experienced legal counsel. There are many procedural requirements to ensure that releases and related agreements are fully enforceable, and these requirements continue to evolve.

© Copyright 2020 Sills Cummis & Gross P.C.

For more employee termination considerations see the National Law Review Labor & Employment law section.

Striking for Black Lives While Striking a Balance Between Business Needs and Employee Concerns

Plans are underway in multiple cities across the country for employees to participate in a Strike for Black Lives on Monday, July 20. The initiative encompasses the efforts of Black Lives Matter, the Movement 4 Black Lives, and a union-organizing effort by the Service Employees International Union. Strike for Black Lives encourages employees to “rise up for Black Lives” by walking off their jobs to march; and for those who can’t march, to take an “8:46 Pledge” in recognition of the death of George Floyd. The 8:46 Pledge asks supporters to take 8 minutes and 46 seconds at noon on July 20 to either take a knee, walk off the job, or observe a moment of silence.

Challenged by the threats of COVID-19, economic uncertainty, and now striking employees, employers should be prepared. As a reminder, the National Labor Relations Act (NLRA), which governs both union and non-union workplaces, protects most private sector employees who engage in concerted, protected activities to object to working conditions or terms of employment. On the other hand, employees who miss work without a good reason or for one’s own personal grievances may be subject to companies’ regular policies. Regardless, it is prudent for employers to proceed with caution in taking action against employees who join the Strike for Black Lives. If you have questions or doubts, consult with counsel.

Meanwhile, the Strike for Black Lives and similar events present opportunities for businesses to bolster their commitments to diversity and inclusion beyond standard statements of support. A recent Harvard Business Review article outlines recommendations for employers standing against racism. Others suggest allowing time off on short notice for last-minute marches and demonstrations. Showing flexibility in the application of company policies reflects a willingness to identify with employees’ concerns and reinforces a business’s own support for racial justice.

Although the convergence of extraordinary events in 2020 presents challenges for employers, in the words of John Adams, “Every challenge is an opportunity in disguise.”

© 2020 BARNES & THORNBURG LLP

For more on Black Lives Matter, see the National Law Review Civil Rights law section.

Building a Successful Law Firm—Without an Office

Rent is one of the largest expenses for law firms, sometimes taking up as much as 10 percent of their gross revenue. Too, it’s not uncommon for workers in large cities to have hour-plus commutes to their offices. The majority of today’s clients are more interested in efficiency and reasonable prices than how glamorous their lawyer’s office is. As a result, firms are choosing another way to work: virtual offices.

Marcia Watson Wasserman, Founder and President of Comprehensive Management Solutions, Inc., serves as a consulting COO for boutique and mid-sized law firms, helping numerous lawyers develop and sustain virtual offices. She joined the Law Firm Marketing Catalyst podcast to share her expertise and advice for lawyers considering moving toward virtual work.

Know who you’re working with

With a virtual office, you can’t pop into a colleague’s office or bump into them in the hallway. You won’t see what they’re doing on a daily basis, so you need to trust that they share the same goals, work ethic and commitment to firm culture as you. Marcia finds that people who have worked together at a brick-and-mortar firm before going virtual tend to work best, because an in-person relationship and sense of trust is already established. If you’re going virtual, find colleagues you already know personally, or at the very least, spend plenty of in-person time with them before committing to anything.

Understand your tech tools

 It’s impossible to have a virtual firm without the help of cloud-based technology tools. To have a successful virtual firm, everyone must be an expert on those tools. Law firms are notorious for buying software, then failing to learn how to use it—that won’t fly with a virtual firm. You need remote systems and procedures that streamline your practice and benefit your clients, and everyone must be comfortable using them. At a minimum, you’ll have to invest both money and training time in document management software, video conferencing software, client portals for paying bills, collaboration tools and, of course, encryption and data security tools.

Cultivate communication

How to delegate work, how to offer feedback, how to manage work among teams, when and how to have meetings—these questions are equally important at virtual or brick-and-mortar firms. But at virtual firms, it becomes even more critical that you discuss them openly and have communications systems in place. When communication is only happening by email, it can easily break down. Video conferencing, phone calls and planned communication are the antidote to this problem. Virtual connection also needs to be backed up with in-person events like retreats and social gatherings, at least annually. Maintaining communication at a virtual firm isn’t just important for client work, it’s also crucial to maintain firm culture.

Working from home sounds great, but it’s not for everyone. Some people get lonely working remotely. Others get distracted or they lack the motivation to work if they’re not in an office. Just like lawyers, support staff must have the right personality and skillset to work virtually. Another element to consider with support staff is wage and hour law in your location. Most support staff are non-exempt, and you have to consider supervision, insurance and the myriad of issues that arise when you have staff working remotely. Management issues don’t go away when support staff is out of sight.

Take advantage of time to network

Virtual work doesn’t mean staying home staring at your computer all day. The majority of work might be done from your home office, but networking can still happen in person. Join organizations, go to meetings and attend events to stay connected to your profession and your colleagues. Virtual work also offers more flexibility to meet with clients and attend events important to their industry. You’ll get to know your clients at a deeper level, which they’ll appreciate, and it will get you out of your work-from-home routine—a win for everyone.

If you can’t go fully virtual, start small

Not every firm is suited to virtual work, but many firms can use some of its elements to their advantage. Especially in large cities, more firms are using co-working spaces or opening small satellite offices that are more convenient for lawyers to get to. With more attorneys working outside of the main office a few days a week, the next logical step for some firms is to encourage office sharing. It’s a huge cultural shift for partners to share an office, but it can offer tremendous space and cost savings, and this concept typically doesn’t faze young associates.

© 2020 Berbay Marketing & Public Relations

For more on running a law firm, see the National Law Review Law Office Management section.

SCOTUS Favors Employers’ Religious Liberties Over Employee Rights

The Supreme Court of the United States (SCOTUS) issued two important decisions this week in cases reflecting the ongoing legal tensions between employers’ religious liberties and the right of employees to be free from discrimination; and in both cases, SCOTUS tipped the scales decidedly in favor of employers’ religious liberties.

First Amendment Supersedes Employment Discrimination Claims

The Supreme Court issued a decision in two similar cases – essentially dismissing the discrimination claims brought by two Catholic school teachers who were discharged from their instructional positions at two different Catholic schools in southern California. In Our Lady of Guadalupe School v. Morrissey-Berru (19-267), and St. James School v. Biel (19-348), the Supreme Court held by a 7-2 majority that the U.S. Constitution’s First Amendment Religion Clauses foreclose the teachers’ employment discrimination claims. In the OLG case, the former teacher sued for age discrimination; in the St. James case, the teacher was dismissed after she sought a leave of absence for cancer treatment. The teacher later passed away.

Relying on the “ministerial exception” outlined in the 2012 SCOTUS decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012), the majority opinion, authored by Justice Samuel Alito, noted that “religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg in dissent, criticizes the majority for its distillation of the Hosanna-Tabor standard into “a single consideration: whether a church thinks its employees play an important religious role,” and observes that it “strips thousands of schoolteachers of their legal protections.”

Religious Exemptions From Birth Control Mandate Under the Affordable Care Act

In a similar but procedurally more complicated ruling, the Supreme Court upheld the federal government’s expansion of a federal rule that exempts employers with religious or moral objections from being required to provide employees with health insurance coverage for birth control under the Affordable Care Act (ACA).

In a 7-2 decision in Little Sisters of the Poor v. Pennsylvania (19-431), SCOTUS tackled the latest skirmish of the ACA’s birth-control mandate. The ACA mandate generally requires employers to provide female employees health insurance with access to contraception. Religious entities have repeatedly challenged the rules, as well as the opt-out accommodation process developed under the Obama administration for employers with religious or moral exemptions.  (The Trump administration had expanded those exemptions.)

With the majority opinion authored by Justice Clarence Thomas, SCOTUS held that the departments of Health and Human Services, Labor, and the Treasury had authority to issue rules for employers. In a concurring opinion, Justice Elena Kagan (joined by Justice Stephen Breyer) acknowledges the statutory authority of the federal agencies, but cautions, “that does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside the HRSA’s [Health Resources and Services Administration’s] statutory authority, but also as ‘arbitrary [and] capricious.’”

In her dissenting opinion, Justice Ginsburg (joined by Justice Sotomayor) notes, “Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”

Takeaways for Discerning Employers

While these Supreme Court decisions, in tandem, may bolster employers’ confidence in their sincerely held beliefs and moral objections about certain employment-related decisions, it is also important to recognize its limitations.  Employers should strategize with their leadership and legal counsel to carefully weigh whether and to what extent these decisions should (or will) inform their own policies and practices, as well as any resulting reputational impact and workplace morale considerations.

© 2020 BARNES & THORNBURG LLP

For more recent SCOTUS employment decisions, see the National Law Review Labor & Employment law section.

Former JUUL Employee Seeks Injunction Against Pre-Employment NDA

On June 4, 2020, a former employee of electronic cigarette maker JUUL Labs, Inc., filed a complaint in California District Court seeking to enjoin JUUL’s enforcement of a non-disclosure agreement (“NDA”) she was required to sign as a condition of her employment. The former employee, Marcie Hamilton, alleges in her complaint that JUUL required her to sign an NDA prohibiting her from disclosing “essentially, everything related to JUUL” (emphasis in original) prior to beginning her employment. She further alleges that the “terrorizing effect” of the NDA, which JUUL requires all of its employees to sign prior to beginning their employment, unlawfully precludes employees from “blowing the whistle” to government or law enforcement agencies about suspected illegal activity, in violation of California law.

As alleged in the complaint, the JUUL NDA requires employees to “hold in strictest confidence” and not disclose, among other things, JUUL’s customers, products, markets, and any “information disclosed by the Company to [the employee] and information developed or learned by [the employee] during the course of employment.”  Employees are prohibited from disclosing such information to “any person, firm, or corporation, without written authorization from the Company’s Board of Directors.”  Having no temporal limit, the prohibition “lasts forever.”  According to the complaint, JUUL relies on these NDAs to prevent employees from providing relevant information in ongoing government investigations, as well as administrative and judicial actions, into the use of JUUL’s products by minors and the health dangers of its products, more broadly.

Ms. Hamilton alleges that the NDA’s prohibition on disclosing seemingly any information about JUUL whatsoever to any entity whatsoever violates California Labor Code § 1102.5(a). Section 1102.5(a) prohibits employers from making, adopting, or enforcing a rule, regulation, or policy that “prevent[s] an employee from disclosing information to a government or law enforcement agency,” or to “any public body conducting an investigation, hearing, or inquiry,” if the employee reasonably believes the information discloses a violation of law. Ms. Hamilton also alleges that the NDA violates California Government Code § 12964.5. Section 12964.5 was enacted in response to the #MeToo movement and prohibits employers from requiring employees to sign any document that “purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”  Ms. Hamilton alleges that in violating these and other California statutes, the NDA has caused “ongoing and irreparable public harm.”  In her lawsuit, she seeks a finding that the NDA is unenforceable and an order enjoining JUUL from attempting to enforce it against her, as well as other forms of relief.

Employers’ Use of NDAs to Intimidate and Muzzle Employees

Unfortunately, NDAs like the one JUUL requires employees to sign as conditions of their employment are not uncommon. To the contrary: large corporations – and powerful individuals – often require employees to sign similar NDAs as conditions of their employment in an effort to stymy competition, insulate themselves from prosecution, and even protect themselves from public embarrassment. As Ms. Hamilton points out in her complaint, former Hollywood producer and convicted rapist Harvey Weinstein used similar pre-employment NDAs to prevent victims of his sexual abuse from reporting it to law enforcement. See Edward Helmore, “Harvey Weinstein lawsuit: attorney general says ‘we have never seen anything as despicable,’” (February 12, 2018).

Disgraced restauranteur Mike Isabella likewise used draconian NDAs to prevent his employees from reporting sexual harassment in his restaurants, including by prohibiting employees from disclosing any “details of the personal and business lives of Mike Isabella, his family member, friends, business associates and dealings” – seemingly without any employment-related purpose whatsoever. In that case, an employee’s breach of the NDA carried with it an unconscionably high penalty of $500,000 per breach, plus attorneys’ fees expended by the company as a result of the breach. See Maura Judkis and Time Carman, “Mike Isabella’s restaurants used nondisclosure agreements to silence sexual harassment accounts, lawsuit alleges.” (April 3, 2018).

Not all states have statues like California’s, which expressly prohibit employers from restricting employees’ ability to disclose information about suspected violations of law to government or law enforcement agencies. But many states nevertheless uphold a clear public policy against doing so. If you signed an NDA as a condition of your employment and want to blow the whistle about any type of illegal conduct by your employer, consider consulting with an employment attorney to determine whether the agreement prohibits you from providing information about violations of law to government or law enforcement agencies and, if so, whether it may be unenforceable.

©Katz, Marshall & Banks, LLP

For more on non-disclosure agreements, see the National Law Review Labor & Employment law section.

Virginia Employees Protected From Retaliation for Raising Concerns About COVID-19 Workplace Safety Issues

On June 29, 2020, the Virginia Safety and Health Codes Board moved forward with an emergency workplace standard to curb the spread of COVID-19. These standards would apply to all Virginia employers and places of employment under the jurisdiction of the Virginia Occupational Health and Safety Administration.

Pursuant to 16 VAC 25-220, Emergency Temporary Standard, employers would be required to:

  • Mandate physical distancing on the job, i.e., “keeping space between yourself and other persons while conducting work-related activities inside and outside of the physical establishment by staying at least 6 feet from other persons. Physical separation of an employee from other employees or persons by a permanent, solid floor to ceiling wall constitutes physical distancing from an employee or other person stationed on the other side of the wall.”
  • Clean and disinfect all common spaces, including bathrooms, frequently touched surfaces, and doors at the end of each shift, and where feasible, disinfect shared tools, equipment, and vehicles prior to transfer from one employee to another.
  • Provide personal protective equipment to employees and ensure its proper use in accordance with VOSH laws, standards, and regulations applicable to personal protective equipment, including respiratory protection equipment when engineering, work practice, and administrative controls are not feasible or do not provide sufficient protection.
  • Assess the workplace for hazards and job tasks that could potentially expose employees to SARS-CoV-2/COVID-19 and ensure compliance with the applicable standards for “very high,” “high,” “medium,” or “lower” risk levels of exposure.
  • Inform employees of methods of self-monitoring and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure or are experiencing signs of forthcoming illness.
  • Notify their own employees who were at a worksite with an employee who subsequently tested positive for active COVID-19, other employers whose employees were also present, and the building/facility owner of the affected site within 24 hours of discovery of possible exposure.
  • Develop and implement policies and procedures for employees to report positive results from antibody testing, and while an employee who has tested positive for SARS-CoV-2 antibodies may return to work, employers are not required to allow an employee who has received such a test to return.

In addition, the emergency workplace standard prohibits employers from:

  • Discriminating against or discharging an employee because that employee voluntarily provides and wears their own personal protective equipment, if such equipment is not provided by the employer, as long as that equipment does not create an increased hazard for the employee or other employees.
  • Discriminating against or discharging an employee who has raised a reasonable concern about SARS-CoV-2/COVID-19 infection control to the employer, the employer’s agent, other employees, or a government agency, or to the public through print, online, social, or any other media.

These workplace safety standards are set to go into effect on July 15, 2020, and employers could be fined up to $13,000 for failing to comply.

The United States Department of Labor Occupational Safety and Health Administration (OSHA) has issued guidance to employers to protect workers but has not adopted a binding rule. OSHA provided guidance to employers on preventing worker exposure to SARS-CoV-2/COVID-19 in March 2020, and in June 2020 it released guidance on returning to work. The guidance on returning to work states that employers should continue to be flexible and allow employees to work remotely when possible, use alternative business operations such as curbside pickup to serve customers if feasible, implement strategies for basic hygiene and disinfection at work, encourage social distancing, apply procedures for identification and isolation of sick employees, and provide employee training on the various phases of reopening and necessary precautions. Further, employers should not retaliate against employees for adhering to OSHA’s safety guidelines or raising workplace health and safety concerns. Though these guidelines are not binding, employers are bound by the General Duty Clause of the Occupational Safety and Health Act of 1970, which requires that they provide a safe workplace free from serious hazards.

Virginia’s recently-enacted whistleblower protection law, which became effective July 1, 2020, will protect workers that disclose violations of the emergency workplace standard. In particular, the new Virginia whistleblower protection law provides a private right of action for an employee who suffers retaliation for “in good faith report[ing] a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official.” Va. Code § 40.1-27.3(A)(1).

The statute proscribes a broad range of retaliatory acts, including discharging, disciplining, threatening, discriminating against, or penalizing an employee or taking other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment because of the employee’s protected conduct. Id. at § 40.1-27.3(A).

A prevailing whistleblower under Virginia’s whistleblower protection law can obtain various remedies, including:

  • An injunction to restrain a continuing violation;
  • Reinstatement to the same or an equivalent position held before the employer took the retaliatory action; and/or
  • Compensation for lost wages, benefits, and other remuneration, together with interest, as well as reasonable attorneys’ fees and costs. at § 40.1-27.3(C).

© 2020 Zuckerman Law

For more anti-retaliation legislation, see the National Law Review Labor & Employment law section.

Black Lives Matter, Racial Unrest and Corporate Culture – How Do Employers Respond?

As the daily news continues to show protests and calls for justice in response to the death of George Floyd and others at the hands of police officers, there is, unsurprisingly, a desire from employees to hear from their employers regarding the ongoing violence and racial unrest in our communities and across the country. Many employers recognized the gravity of the racial unrest by celebrating, for the first time, Juneteenth on June 19, 2020, a holiday celebrating the emancipation of slaves. But is that enough? How do employers respond?

As a practical matter, employers must be aware of the application of Constitutional free speech protections, employee rights under the National Labor Relations Act and state laws that may apply to expressive employee conduct, as detailed in our previous post.

Beyond that, employers can choose the level of their response and engagement, or choose to do nothing at all—there is no right or wrong answer or a “one size fits all” solution. The most common reaction from employers is to acknowledge the unrest and issue a statement of support. Many employers have also chosen to make a public announcement expressing solidarity and support of the Black Lives Matter movement.

Though these responses are important, they fail to accomplish the more ambitious goal of many employers, which is to articulate and implement a strategy for lasting and real change within their own workplace and beyond. This action requires substantial reflection, consideration, time and effort.

So, for employers looking to do more, where do they start?

  • Leadership: Good leaders serve as good models. Leaders can lead by example and provide a safe workplace where all employees feel respected and included. As it pertains to the current environment, leaders can be open about their own lack of knowledge and share their growth and experiences with their workforce.
  • Anti-Discrimination Policies: Employers can review their policies regarding equal employment opportunity and workplace discrimination. Though most employers articulate such policies as a matter of course, it is important to reinforce these policies and remind employees of what is expected of them and to reassure employees who may be feeling vulnerable at this time.
  • Diversity Initiatives: Employers can focus on building diversity within their ranks by ensuring that recruitment, hiring, retention and advancement are truly objective and based on merit. Employers can also consider implementing a version of the National Football League’s recently-revised “Rooney Rule,” wherein at least two non-white candidates must be considered for open head coaching positions, and one non-white candidate must be considered for coordinator, senior football operations or general manager positions. Forming a diversity committee or task force is another way to ensure that minority members of your workforce are being heard and understood by management.
  • Awareness: Employers can educate their employees about prejudice and racism in its various forms; this can consist of formal training or open forums in which employees can communicate with one another and, importantly, with their co-workers of color. Employers can also make educational materials available for employees.
  • Community Involvement: Employers can publicly support the movement in the form of donations or activism. Doing so can create a sense of pride among your workforce, and it can also help in attracting future hires that share the principles of your workplace.

© Copyright 2020 Squire Patton Boggs (US) LLP

ARTICLE BY Anne Marie Schloemer at Squire Patton Boggs (US) LLP.

For more on employer-employee conduct see the National Law Review Labor & Employment law section.

NLRB Approves Company’s Baseball Cap Rule

Under Section 8(a)(1) of the National Labor Relations Act (“NLRA”), employers are permitted to maintain uniform and dress code policies in the workplace, so long as such policies do not prohibit employees from wearing union insignia, absent special circumstances, such as health and safety concerns. While seemingly straightforward, application of this rule can be quite meticulous in practice. A recent National Labor Relations Board (the “Board”) case, World Color (USA) Corp., a Wholly-Owned Subsidiary of Quad Graphics Inc., 369 NLRB No. 104 (June 12, 2020), provides guidance as to when an employer can restrict apparel logos at work.

When Can You Limit Apparel to Company Logos?

World Color (USA) Corp., is a Wisconsin company that maintains a facility in Nevada, where it prints commercial inserts for newspapers.

In early 2011, World Color distributed a set of mandatory guidelines to its employees containing a uniform and dress code policy requiring that all employees wear authorized company uniforms as a condition of employment, and to dress and groom professionally at all times. The guidelines permitted employees to accessorize the uniform, but required the accessorizing to be “in good taste and in accordance with all safety rules.” The guidelines further required that if “hair… could potentially get caught in [production equipment], it must be secured… with a hairnet or other means. Baseball caps are prohibited except for [company] baseball caps worn with the bill facing forward.” World Color further prohibited wearing buttons and pins on the production floor as a safety hazard.

After the union filed a charge, the Administrative Law Judge (ALJ) found that the policy was unlawful because it prohibited employees from wearing baseball caps with union logos and from displaying union insignia on hats.

After several appeals, however, the Board found that the policy did not prohibit employees from engaging in the protected activity of wearing caps bearing union insignia. Rather, the cap policy merely required employees to wear a company cap to align with the overall company uniform. The Board noted that employees were not prohibited from wearing union insignia on the company cap as long as they were “in good taste and in accordance with all safety rules”. As such, the Board found that the uniform policy was lawful because it permitted employees to wear union insignias on company caps as long as they did not pose a safety risk.

What This Decision Means for Employers

Uniform and dress code rules are just one of a great number of issues that employers face in ensuring that their workplace policies comply with the mandates of the NLRA. The NLRA applies to almost all private sector employers nationwide, whether their employees are currently represented by a union or not. Employers should be aware of the level of scrutiny that can be placed on their workplace policies — by unions, by ALJs, and by the Board. Employers should be on the look-out for uniform and dress code provisions that:

  • Specifically prohibit wearing union insignia;

  • Broadly prohibit wearing all non-company insignia, even without reference to unions;

  • Require company or supervisor approval or authorization of union insignia;

  • Unreasonably limit the size and shape of union insignia on uniforms;

  • Prohibit union insignia without documented specific and legitimate safety reasons.

We recommend that employers consult with experienced labor counsel to revise and review their workplace policies to fully comply with all state and federal requirements, including the NLRA. This way, employers will be in the best position to protect the right to efficiently and effectively maintain their businesses. Moreover, employers should be aware that even seemingly minor violations of the NLRA may compromise the ability to assert their rights in other contexts, such as possible threats of union organizing.

©2020 von Briesen & Roper, s.c

For more on dress code policies, see the National Law Review Labor and Employment law section.