Tag: labor and employment

Recent OSHA Update Targets Restaurant Industry

Occupational Safety and Health Administration (OSHA) has recently updated its COVID-19 response plan. Last year, OSHA focused much of its COVID-19 related attention on healthcare, elderly care, and prisons. This new Updated Interim Enforcement Response Plan for COVID-19 and National Emphasis Program — Coronavirus Disease 2019 (COVID-19) guidance shifts its focus to other industries where OSHA feels there could be spread of COVID-19. As part of the guidance, OSHA specifically targeted full-service and limited-service restaurants for inspections.

Restaurants should be prepared for on-site or virtual OSHA inspections. To prepare, restaurants should:

  • Ensure all OSHA recordkeeping (OSHA 300, 300A, and 301s) is in order and up to date.
  • Ensure any contact tracing for COVID-19 illness is properly documented.
  • Ensure a COVID-19 response plan is documented and in place-include relevant Federal, state and local guidance.
  • Ensure compliance with OSHA standards, specifically Personal Protective Equipment and Blood Borne Pathogens.
  • Ensure employees are trained on COVID-19 related hazards, reporting of COVID-19 symptoms, prevention of COVID-19, and document this training.
  • Ensure employees are trained that they will not be retaliated against for raising concerns regarding safety, specifically COVID-19 related safety.

Note that we are still waiting for OSHA’s Emergency Temporary Standard to be issued. OSHA has provided its proposed standard to the White House where it is currently being reviewed. Once that is issued, there will likely be more requirements for all industries with respect to COVID-19 related employee safety and health.

This article was written by Jane H. Heidingsfelder at Jones Walker law firm. For more information on OSHA guidance, please visit our Labor and Employment news page.

OSHA Issues Updated COVID-19 Guidance in Compliance with President Biden’s Executive Order

As directed by President Joe Biden’s Executive Order issued on January 21, 2021 requiring the Federal Government to take swift action to protect workers from the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has released updated guidance on how to prevent exposure and the spread of COVID-19 in the workplace.

The guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was posted on OSHA’s website on January 29, 2021.  As with OSHA’s previous recommendations, this guidance is not mandatory and does not have the same legal effect as an OSHA standard.  However, it does give some insight into what OSHA expects to include in an emergency temporary standard (“ETS”) which the new Administration wants the agency to consider and potentially implement by March 15, 2021.

Most employers will be familiar with the elements in the guidance, but here are some of the significant new measures addressed in the guidelines:

  • Employers should provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator.  Many states did not require this and OSHA did not previously recommend employers purchase masks.
  • Provide a COVID-19 vaccine at no cost to eligible employees.
  • Do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures.
  • Minimize the effect of quarantine and isolations by implementing non-punitive policies, and provide paid sick leave. Employers with less than 500 employees are encouraged to provide FFCRA leave which is still available (though not mandatory) through March 31, 2021 under the Families First Coronavirus Response Act.
  • Provide guidance on screening and testing.
  • Assign a workplace coordinator responsible for COVID-19 issues.

OSHA’s guidance related to the COVID-19 pandemic continues to evolve and further changes are expected with President Biden’s new Administration.  James “Jim” Frederick, a former United Steelworkers safety official, has been named by the Administration to act as the head of OSHA on an interim basis.  Mr. Frederick has indicated that in that role he will be focused on drafting and implementing an enforceable emergency COVID-19 standard.  While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment.

Jackson Lewis P.C. © 2020

ARTICLE BY Raymond Perez, II and Mary L. Bradley of Jackson Lewis P.C.
For more, visit the NLR Labor & Employment

2021 State Minimum Wage Increases

Several states’ minimum wage rates will increase in 2021. The following chart lists the state (and certain major locality) minimum wage increases for 2021—and future years, if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees.

The federal minimum wage will remain at $7.25 per hour for non-tipped employees and $2.13 per hour for tipped employees. Where a state or locality has implemented a minimum wage rate that is higher than the federal rate, covered employers are required to pay the applicable state or local minimum wage rate. Although not included in the chart below (because the state rate is not scheduled to increase in 2021 or an increase has not yet been announced), the following additional states and the District of Columbia currently have minimum wages higher than the federal rate: Delaware ($9.25); District of Columbia ($15.00); Hawaii ($10.10); Nebraska ($9.00); Rhode Island ($10.50); and West Virginia ($8.75).

Michigan Minimum Wage Update. The minimum wage in Michigan had been scheduled to increase from $9.65 to $9.87, effective January 1, 2021 (please see the below chart for the state’s increase schedule). On December 11, 2020, however, the Wage and Hour Division of the Michigan Bureau of Employment Relations announced that the scheduled increase was unlikely to happen because the state’s current unemployment rate for 2020 remained above 8.5 percent (the threshold above which a minimum wage increase cannot occur by statute). The Wage and Hour Division has stated that if, as expected, the unemployment rate does not fall below 8.5 percent when the final 2020 numbers are released, then Michigan’s minimum wage will remain at $9.65 per hour ($3.67 for tipped employees) as of January 1, 2021. The minimum wage rate will not increase to $9.87 per hour until the first calendar year following a year for which the unemployment rate was below 8.5 percent.

Minimum Wage Increases for 2021

January 2021 increases are in bold text. As noted above, jurisdictions that will not see increases in their minimum wage rates in 2021 (unless an increase is determined and/or announced at a later time) are not included in the chart below.

State Minimum Wage Maximum Tip Credit

Minimum Cash Wage

(Tipped Employees)
Alaska

$10.19 (current)

$10.34 (effective January 1, 2021)

 Tip credit not allowed. Tip credit not allowed.
Arizona

$12.00 (current)

$12.15 (effective January 1, 2021)

Flagstaff:

$13.00 (current)

$15.00 (effective January 1, 2021)

$15.50 (effective January 1, 2022)*

*Or $2.00 above the Arizona statewide rate, whichever is higher.

$3.00 (current) (set tip credit amount)

 

Flagstaff:

$3.00 (current)

$3.00 (effective January 1, 2021)

$2.50 (effective January 1, 2022)

 

$9.00 (current)

$9.15 (effective January 1, 2021)

Flagstaff:

$10.00 (current)

$12.00 (effective January 1, 2021)

$13.00 (effective January 1, 2022)

 
Arkansas

$10.00 (current)

$11.00 (effective January 1, 2021)

$7.37 (current)

$8.37 (effective January 1, 2021)

 $2.63 (current) (set cash wage amount)
California

Employers with 26 or more employees:
$13.00 (current)
$14.00 (effective January 1, 2021)
$15.00 (effective January 1, 2022)Employers with 25 or fewer employees:
$12.00 (current)
$13.00 (effective January 1, 2021)
$14.00 (effective January 1, 2022)
$15.00 (effective January 1, 2023)Los Angeles (City):
Employers with 26 or more employees:
$15.00 (current) (no change)

Employers with 25 or fewer employees:
$14.25 (current)
$15.00 (effective July 1, 2021) Los Angeles (County – unincorporated areas):
Employers with 26 or more employees:
$15.00 (current) (no change)

Employers with 25 or fewer employees:
$14.25 (current)
$15.00 (effective July 1, 2021)Oakland:
$14.14 (current)
$14.36 (effective January 1, 2021)

Pasadena:
Employers with 26 or more employees:
$15.00 (current) (no change)Employers with 25 or fewer employees:
$14.25 (current)
$15.00 (effective July 1, 2021)

San Diego:
$13.00 (current)
$14.00 (effective January 1, 2021)

San Jose:
$15.25 (current)
$15.45 (effective January 1, 2021)

Santa Monica:
Employers with 26 or more employees:
$15.00 (current) (no change)

Employers with 25 or fewer employees:
$14.25 (current)
$15.00 (effective July 1, 2021)

*Reminder: this list of California localities with published 2021 increases is not exhaustive; others may see increases in 2021 as well.

 Tip credit not allowed. Tip credit not allowed.
Colorado

$12.00 (current)

$12.32 (effective January 1, 2021)

Denver:
$12.85 (current)
$14.77 (effective January 1, 2021)
$15.87 (effective January 1, 2022)

 

$3.02 (current) (no change)

Denver:
$3.02 (current) (state rate; no change)

$8.98 (current)

$9.30 (effective January 1, 2021)

Denver:
$9.83 (current)
$11.75 (effective January 1, 2021)
$12.85 (effective January 1, 2022)
Connecticut $12.00 (current)
$13.00 (effective August 1, 2021)
$14.00 (effective July 1, 2022)
$15.00 (effective June 1, 2023)		 Tipped service employees other than bartenders:
$5.62 (current)
$6.62 (effective August 1, 2021)
$7.62 (effective July 1, 2022)
$8.62 (effective June 1, 2023)
Bartenders:
$3.77 (current)
$4.77 (effective August 1, 2021)
$5.77 (effective July 1, 2022)
$6.77 (effective June 1, 2023)		 Tipped service employees other than bartenders:
$6.38 (current) (set cash wage amount)   Bartenders:
$8.23 (current) (set cash wage amount)
Florida $8.56 (current)
$8.65 (effective January 1, 2021) Further increases determined by ballot initiative approved 11/3/20:
$10.00 (effective September 30, 2021)
$11.00 (effective September 30, 2022)
$12.00 (effective September 30, 2023)
$13.00 (effective September 30, 2024)
$14.00 (effective September 30, 2025)
$15.00 (effective September 30, 2026) 		 $3.02 (current) (no change) $5.54 (current)
$5.63 (effective January 1, 2021) Further increases determined by ballot initiative approved 11/3/20:
$6.98 (effective September 30, 2021)
$7.98 (effective September 30, 2022)
$8.98 (effective September 30, 2023)
$9.98 (effective September 30, 2024)
$10.98 (effective September 30, 2025)
$11.98 (effective September 30, 2026)
Illinois $10.00 (current)
$11.00 (effective January 1, 2021)
$12.00 (effective January 1, 2022)
$13.00 (effective January 1, 2023)
$14.00 (effective January 1, 2024)
$15.00 (effective January 1, 2025)Chicago:
Employers with 21 or more total employees:
$14.00 (current)
$15.00 (effective July 1, 2021)Employers with 4-20 total employees:
$13.50 (current)
$14.00 (effective July 1, 2021)
$14.50 (effective July 1, 2022)
$15.00 (effective July 1, 2023)		 $4.00 (current)
$4.40 (effective January 1, 2021)
$4.80 (effective January 1, 2022)
$5.20 (effective January 1, 2023)
$5.60 (effective January 1, 2024)
$6.00 (effective January 1, 2025)Chicago:
Employers with 21 or more total employees:
$5.60 (current)
$6.00 (effective July 1, 2021)Employers with 4-20 total employees:
$5.40 (current)
$5.60 (effective July 1, 2021)
$5.80 (effective July 1, 2022)
$6.00 (effective July 1, 2023)		 $6.00 (current)
$6.60 (effective January 1, 2021)
$7.20 (effective January 1, 2022)
$7.80 (effective January 1, 2023)
$8.40 (effective January 1, 2024)
$9.00 (effective January 1, 2025)Chicago:
Employers with 21 or more total employees:
$8.40 (current)
$9.00 (effective July 1, 2021)Employers with 4-20 total employees:
$8.10 (current)
$8.40 (effective July 1, 2021)
$8.70 (effective July 1, 2022)
$9.00 (effective July 1, 2023)
Maine

$12.00 (current)

$12.15 (effective January 1, 2021)

 

$6.00 (current)

$6.07 (effective January 1, 2021)

 

$6.00 (current)

$6.08 (effective January 1, 2021)

 
Maryland

$11.00 (current)

Employers with 15 or more employees:
$11.75 (effective January 1, 2021)
$12.50 (effective January 1, 2022)
$13.25 (effective January 1, 2023)
$14.00 (effective January 1, 2024)
$15.00 (effective January 1, 2025)

Employers with 14 or fewer employees:
$11.60 (effective January 1, 2021)
$12.20 (effective January 1, 2022)
$12.80 (effective January 1, 2023)
$13.40 (effective January 1, 2024)
$14.00 (effective January 1, 2025)
$14.60 (effective January 1, 2026)
$15.00 (effective July 1, 2026)

Montgomery County:
Employers with 51 or more employees:
$14.00 (current)
$15.00 (effective July 1, 2021)

Employers with 11 – 50 employees:
$13.25 (current)
$14.00 (effective July 1, 2021)
$14.50 (effective July 1, 2022)
$15.00 (effective July 1, 2023)

Employers with 10 or fewer employees:
$13.00 (current)
$13.50 (effective July 1, 2021)
$14.00 (effective July 1, 2022)
$14.50 (effective July 1, 2023)
$15.00 (effective July 1, 2024)

Prince George’s County:

$11.50 (current)*

*State rate will apply effective January 1, 2021.

$7.37 (current)

Employers with 15 or more employees:
$8.12 (effective January 1, 2021)

Employers with 14 or fewer employees:
$7.97 (effective January 1, 2021)

Montgomery County:
Employers with 51 or more employees:
$10.00 (current)
$11.00 (effective July 1, 2021)

Employers with 11-50 employees:
$9.25 (current)
$10.00 (effective July 1, 2021)

Employers with 10 or fewer employees:
$9.00 (current)
$9.50 (effective July 1, 2021)

 

 

 

Prince George’s County:
$7.87 (current)*

*State rate will apply effective January 1, 2021.

 

$3.63 (current) (set cash wage amount)

 

 

 

 

 

 

 

 

 

 Montgomery County:
$4.00 (current) (no change)

 

 

 

Prince George’s County:
$3.63 (current) (no change)
Massachusetts $12.75 (current)
$13.50 (effective January 1, 2021)
$14.25 (effective January 1, 2022)
$15.00 (effective January 1, 2023)		 $7.80 (current)
$7.95 (effective January 1, 2021)
$8.10 (effective January 1, 2022)
$8.25 (effective January 1, 2023)		 $4.95 (current)
$5.55 (effective January 1, 2021)
$6.15 (effective January 1, 2022)
$6.75 (effective January 1, 2023)

Michigan

 

*Scheduled increases are not likely to become effective on January 1, 2021. See note in introduction.

 $9.65 (current)
$9.87 (effective January 1, 2021)*
$10.10 (effective January 1, 2022)
$10.33 (effective January 1, 2023)
$10.56 (effective January 1, 2024)
$10.80 (effective January 1, 2025)
$11.04 (effective January 1, 2026)
$11.29 (effective January 1, 2027)
$11.54 (effective January 1, 2028)
$11.79 (effective January 1, 2029)
$12.05 (effective January 1, 2030)		 $5.98 (current)
$6.12 (effective January 1, 2021)*		 $3.67 (current)
$3.75 (effective January 1, 2021)*
Minnesota

Large Employers (annual gross revenues of $500,000 or more):
$10.00 (current)
$10.08 (effective January 1, 2021)Small Employers (annual gross revenues of less than $500,000):
$8.15 (current)
$8.21 (effective January 1, 2021)Minneapolis:
Large Employers (101 or more total employees):
$13.25 (current)
$14.25 (effective July 1, 2021)
$15.00 (effective July 1, 2022)Small Employers (100 or fewer total employees):
$11.75 (current)
$12.50 (effective July 1, 2021)
$13.50 (effective July 1, 2022)St. Paul:
Macro Businesses (10,001 or more total employees) + City:
$12.50 (current)
$15.00 (effective July 1, 2022)
Adjusted annually thereafter.

Large Businesses (101 to 10,000 total employees):
$11.50 (current)
$12.50 (effective July 1, 2021)
$13.50 (effective July 1, 2022)
$15.00 (effective July 1, 2023)
Thereafter, rate will match macro businesses/City rate.

Small Businesses (6 to 100 total employees):
$10.00 (current)
$11.00 (effective July 1, 2021)
$12.00 (effective July 1, 2022)
$13.00 (effective July 1, 2023)
$14.00 (effective July 1, 2024)
$15.00 (effective July 1, 2025)
Thereafter, rate will match macro businesses/City rate.

Micro Businesses (5 or fewer employees):
$9.25 (current)
$10.00 (effective July 1, 2021)
$10.75 (effective July 1, 2022)
$11.50 (effective July 1, 2023)
$12.25 (effective July 1, 2024)
$13.25 (effective July 1, 2025)
$14.25 (effective July 1, 2026)
$15.00 (effective July 1, 2027)
Thereafter, rate will match macro businesses/City rate.

 Tip credit not allowed. Tip credit not allowed.
Missouri $9.45 (current)
$10.30 (effective January 1, 2021)
$11.15 (effective January 1, 2022)
$12.00 (effective January 1, 2023) 		 $4.72 (current)
$5.15 (effective January 1, 2021)
$5.57 (effective January 1, 2022)
$6.00 (effective January 1, 2023) 		 $4.73 (current)
$5.15 (effective January 1, 2021)
$5.58 (effective January 1, 2022)
$6.00 (effective January 1, 2023)
Montana

$8.65 (current)

$8.75 (effective January 1, 2021)

 Tip credit not allowed. Tip credit not allowed.
Nevada Employers offering qualified health insurance benefits:
$8.00 (current)
$8.75 (effective July 1, 2021)
$9.50 (effective July 1, 2022)
$10.25 (effective July 1, 2023)
$11.00 (effective July 1, 2024)Employers that do not offer qualified health insurance benefits:
$9.00 (current)
$9.75 (effective July 1, 2021)
$10.50 (effective July 1, 2022)
$11.25 (effective July 1, 2023)
$12.00 (effective July 1, 2024)		 Tip credit not allowed. Tip credit not allowed.
New Jersey

Employers with 6 or more employees:

$11.00 (current)
$12.00 (effective January 1, 2021)
$13.00 (effective January 1, 2022)
$14.00 (effective January 1, 2023)
$15.00 (effective January 1, 2024)

Employers with 5 or fewer employees and seasonal employers:
$10.30 (current)
$11.10 (effective January 1, 2021)
$11.90 (effective January 1, 2022)
$12.70 (effective January 1, 2023)
$13.50 (effective January 1, 2024)
$14.30 (effective January 1, 2025)
$15.00 (effective January 1, 2026)

 Employers with 6 or more employees:
$7.87 (current)$7.87 (effective January 1, 2021)
$7.87 (effective January 1, 2022)
$8.87 (effective January 1, 2023)
$9.87 (effective January 1, 2024)Employers with 5 or fewer employees and seasonal employers:
$7.17 (current)
$6.97 (effective January 1, 2021)
$6.77 (effective January 1, 2022)
$7.57 (effective January 1, 2023)
$8.37 (effective January 1, 2024)		 $3.13 (current)
$4.13 (effective January 1, 2021)
$5.13 (effective January 1, 2022)$5.13 (effective January 1, 2023)
$5.13 (effective January 1, 2024) 
New Mexico

$9.00 (current)
$10.50 (effective January 1, 2021)
$11.50 (effective January 1, 2022)
$12.00 (effective January 1, 2023)Albuquerque (city):
Employers not providing healthcare and/or childcare benefits of at least $2,500:
$9.35 (current)
$10.50 (effective January 1, 2021) Employers providing healthcare and/or childcare benefits of at least $2,500 (annualized):
$8.35 (current)
$9.50 (effective January 1, 2021)* *Higher state rate of $10.50 applies effective January 1, 2021.

Bernalillo County (unincorporated area only):
$9.20 (current)
$9.35 (effective January 1, 2021)**Higher state rate of $10.50 applies effective January 1, 2021.

Santa Fe (city):
$12.10 (current)*

*March 2021 increase expected.

Santa Fe (county – unincorporated area only):
$12.10 (current)*

*March 2021 increase expected.

 

$6.65 (current)
$7.95 (effective January 1, 2021)
$8.70 (effective January 1, 2022)
$9.00 (effective January 1, 2023)Albuquerque (city):
Employers not providing healthcare and/or childcare benefits of at least $2,500:
$3.75 (current)
$4.20 (effective January 1, 2021) Employers providing healthcare and/or childcare benefits of at least $2,500 (annualized):
$2.75 (current)
$4.20 (effective January 1, 2021) (due to state minimum wage increase)

Bernalillo County (unincorporated area only):
$7.07 (current)
$7.95 (effective January 1, 2021) (due to state minimum wage and minimum cash wage increases)

Santa Fe (city):
$9.75 (current)
$9.55 (effective January 1, 2021) (due to state minimum cash wage increase)

Santa Fe (county – unincorporated area only):
$8.48 (current)

$2.35 (current)
$2.55 (effective January 1, 2021)
$2.80 (effective January 1, 2022)
$3.00 (effective January 1, 2023)Albuquerque (city):$5.60 (current)$6.30 (effective January 1, 2021)

Bernalillo County (unincorporated area only):
$2.13 (federal) (current)
$2.55 (state rate) (effective January 1, 2021)

 Santa Fe (city):
$2.35 (current)
$2.55 (state rate) (effective January 1, 2021)

Santa Fe (county – unincorporated area only):

$3.62 (current)
New York

Statewide (outside NYC and counties below):

$11.80 (current)
$12.50 (effective December 31, 2020)

Fast Food Workers (non-NYC):
$13.75 (current)
$14.50 (effective December 31, 2020)
$15.00 (effective July 1, 2021)

Nassau, Suffolk, and Westchester Counties:
$13.00 (current)
$14.00 (effective December 31, 2020)
$15.00 (effective December 31, 2021)

Hospitality Industry Only*

Statewide (outside NYC and counties below):

TIPPED SERVICE EMPLOYEES:
$1.95 (current)

$2.10 (effective December 31, 2020)

TIPPED FOOD SERVICE WORKERS:
$3.95 (current)
$4.15 (effective December 31, 2020)

Nassau, Suffolk, and Westchester Counties:
TIPPED SERVICE EMPLOYEES:
$2.15 (current)
$2.35 (effective December 31, 2020)
$2.50 (effective December 31, 2021)

TIPPED FOOD SERVICE WORKERS:
$4.35 (current)
$4.65 (effective December 31, 2020)
$5.00 (effective December 31, 2021)

*Employees must meet tip thresholds for employer to claim tip credit.

Hospitality Industry Only*

Statewide (outside NYC and counties below):

TIPPED SERVICE EMPLOYEES:
$9.85 (current)
$10.40 (effective December 31, 2020)

TIPPED FOOD SERVICE WORKERS:
$7.85 (current)
$8.35 (effective December 31, 2020)

Nassau, Suffolk, and Westchester Counties:
TIPPED SERVICE EMPLOYEES:
$10.85 (current)
$11.65 (effective December 31, 2020)
$12.50 (effective December 31, 2021)

TIPPED FOOD SERVICE WORKERS:
$8.65 (current)
$9.35 (effective December 31, 2020)
$10.00 (effective December 31, 2021)

*Employees must meet tip thresholds for employer to claim tip credit.
Ohio

$8.70 (current)

$8.80 (effective January 1, 2021)

Small Employers (annual gross receipts of less than $319,000* per year):
$7.25 (current)

*Small employer threshold increases to $323,000 effective January 1, 2021.

$4.35 (current)

$4.40 (effective January 1, 2021)

$4.35 (current)

$4.40 (effective January 1, 2021)
Oregon Standard Minimum Wage Rate:
$12.00 (current)$12.75 (effective July 1, 2021)$13.50 (effective July 1, 2022)Portland Metro Employers (i.e., employers located within the “urban growth boundary of a metropolitan service district”):
$13.25 (current)$14.00 (effective July 1, 2021)$14.75 (effective July 1, 2022)Employers in Nonurban Counties (as defined by the law):
$11.50 (current)$12.00 (effective July 1, 2021)$12.50 (effective July 1, 2022)		 Tip credit not allowed. Tip credit not allowed.
South Dakota

$9.30 (current)

$9.45 (effective January 1, 2021)

$4.65 (current)

$4.72 (effective January 1, 2021)

 $4.65 (current)
$4.73 (effective January 1, 2021)
Vermont

$10.96 (current)

$11.75 (effective January 1, 2021)

$12.55 (effective January 1, 2022)

$5.48 (current)

$5.87 (effective January 1, 2021)

$6.27 (effective January 1, 2022)

$5.48 (current)

$5.88 (effective January 1, 2021)

$6.28 (effective January 1, 2022)
Virginia

$7.25 (current)

$9.50 (effective May 1, 2021)

$11.00 (effective January 1, 2022)

$12.00 (effective January 1, 2023)

$13.50 (effective January 1, 2025)*

$15.00 (effective January 1, 2026)*

*If reenacted by General Assembly before July 1, 2024.

$5.12 (current)

$7.37 (effective May 1, 2021)

 $2.13 (current) (no change)
Washington $13.50 (current)
$13.69 (effective January 1, 2021)Seattle:
Large Employers (more than 500 employees worldwide):
$16.39 (current)
$16.69 (effective January 1, 2021)Small Employers (500 or fewer employees worldwide) who do not contribute towards an individual employee’s medical benefits:
$15.75 (current)
$16.69 (effective January 1, 2021)Small Employers (500 or fewer employees worldwide) who do pay at least $1.69 per hour toward an individual employee’s medical benefits or in tips:
$13.50 (current)
$15.00 (effective January 1, 2021)		 Tip credit not allowed. Tip credit not allowed.
© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on the minimum wage, visit the National Law Review Labor & Employment section.

DOL Issues Additional FFCRA Guidance as Schools Reopen

On Aug. 27, 2020, the U.S. Department of Labor (DOL) issued three new Frequently Asked Questions (FAQ) related to the reopening of schools in various formats and employee paid leave eligibility under the Families First Coronavirus Response Act (FFCRA).

The FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of paid leave to employees for certain reasons related to the 2019 novel coronavirus (COVID-19) pandemic under the Emergency Paid Sick Leave Act (PSLA) and expands the Family and Medical Leave Act (FMLA) to provide employees up to 12 weeks of emergency job-protected leave to care for a child as a result of school or child care closings due to a public health emergency. The recent FAQ address caregiver leave associated with the closure of schools, which, if eligible, entitles employees to two-thirds’ pay up to $200 per day ($10,000 in aggregate).

NEW FAQ ADDRESSING SCHOOL CLOSURES

The following is an overview of DOL’s three newly issued FAQ regarding school closures:

A child attends a school operating on an alternate day basis

The DOL confirmed in FAQ #98 that an employee will be eligible for paid leave on an intermittent basis to accommodate a hybrid school schedule whereby children attend school both in-person and remotely. For purposes of the FFCRA and its implementing regulations, the school is effectively closed on days that a child cannot attend in person and leave is available on remote-learning days. The DOL cautions in its guidance that even under these circumstances, leave is only available if no other suitable person is available to care for the child.

A parent chooses remote learning when in-person instruction is available

FAQ #99 makes clear that FFCRA leave is not available to take care of a child whose school is otherwise open for in-person attendance. As a result, if a child needs care because the employee chose a virtual or remote school option, the employee is ineligible for leave. The DOL notes, however, that if the child is home due to a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, an employee may be eligible to take paid leave to care for the child.

School begins with remote learning, but shifts to in-person instruction if conditions change

FAQ #100 clarifies that leave eligibility will change as schools adopt different teaching models. Using the example of a school that starts virtually with the hope of returning to in-person teaching in the future, the DOL explains that an employee will be eligible for leave during the remote learning period for so long as the school remains closed, but eligibility will end when the school converts to in-person instruction.

ADDITIONAL FFCRA RESOURCES

Consider reviewing the following resources to learn more about the FFCRA:

Copyright © 2020 Godfrey & Kahn S.C.

ARTICLE BY Margaret R. Kurlinski and Christine McLaughlin of Godfrey & Kahn S.C. 

For more on DOL guidance, see the National Law Review Labor and Employment Legal and Regulatory Law News section.

Return to Work COVID-19 Testing Considerations

As employees increasingly transition back into the physical workplace, employers have begun to grapple with whether and how to deploy COVID-19 diagnostic testing as a return-to-work solution.  Many employers want to avoid extended employee quarantine or isolation requirements that prevent their employees from returning to the office for weeks and disrupt their operations.  But is this potential solution legal?  And is it effective?  Below we discuss practical considerations for employers considering a return to work COVID-19 testing strategy.

Is it Legal?

For the most part, yes.  While the Equal Employment Opportunity Commission (“EEOC”) has approved of COVID-19 diagnostic testing in the workplace generally, it has, as explained further below, recently modified its guidance to discourage its use as a return to work strategy.  Further, approaches vary widely across the states and localities that have taken a position on return to work testing.  For example, while Illinois permits its use, an ordinance in Dallas, Texas prohibits return to work testing.

Is it Effective?  

It depends.  Before mandatory vaccination becomes an option (which we wrote about here), requiring employees to test negative for COVID-19 before returning to work may at first glance seem like a reasonable way to ensure employee attendance while keeping the workplace safe.  For some employers, particularly those that are able to test frequently, quickly and accurately, this may be a sound approach.  But for other employers, they will have to weigh their options carefully.  Recent updated guidance from the CDC, employee complaints about the invasiveness of testing, and very real ongoing concerns about testing availability and accuracy may militate against pursuing a testing strategy at this time.

More specifically, recent guidance from the CDC discourages a test-based strategy as a primary solution finding that a symptom-based screening strategy is sufficient to identify when an individual with symptoms may return to work.  However, if an employer nevertheless decides to proceed with diagnostic testing as part of their COVID-19 mitigation strategy, the CDC recommends having employees test negatively twice with the two consecutive tests coming at least 24 hours, before returning to work.

State and local guidance does not necessarily provide additional clarity on how best to proceed.  For example New York State’s guidance only addresses situations where an employee experiences symptoms upon arrival at work or while at the office, advising that in those instances an employee may return to work with a single negative COVID-19 test (in contrast to the CDC’s recommended two consecutive negative tests).  But New York’s guidance does not currently address whether testing is a solution to a host of other scenarios – for instance, where an employee’s remote screening indicates recent symptoms, known exposure, or where an employee traveled to a place with significant community spread.  In those instances, the New York guidance does not incorporate testing as a return to work solution, instead asserting that individuals who have had known close contact with someone who has COVID-19 (i.e. within 6 feet of someone for ten or more minutes) should (1) isolate for 10 days from the onset of symptoms (if the individual has symptoms); or (2) isolate for 14 days from the date of exposure (if the individual does not have symptoms).  New York’s guidance also states that employees who test positive for COVID-19 must complete at least 10 days of isolation from the onset of symptoms or 10 days of isolation after the first positive test if they remain asymptomatic.

Putting all the guidance aside for the moment, testing may prove futile in many cases regardless.  First, COVID-19 reportedly can take 2-14 days after exposure to become identifiable in a diagnostic test, and thus, employees who test negative may return to work and later discover they have indeed been infected.  And in other cases, testing may prove futile if an employee cannot access a test readily, and thereafter receive their results in a timely manner, which effectively sidelines them from returning to the office anyway.  Further, there is also the possibility of a false negative, particularly when an employee takes a rapid test.  Other employer considerations include how COVID-19 testing, and the resulting disciplining of employees if they refuse to be tested, might affect overall employee morale.

Employers should consider these issues and weigh them against the vitality of other preventative measures such as whether an employee can telework or take a paid or unpaid leave in lieu of returning to work.  If the employee must return to work, employers should consider using other safety measures (whether in lieu of or in addition to testing), such as symptom/exposure questionnaires, temperature checks and workplace social distancing requirements.

What if an Employee Refuses to Take a Diagnostic Test? 

In selecting any of these options, employers should consider creating a policy or procedure that, among other things, discloses the circumstances under which an employee must take a test, the specific test or tests that the employer will accept, and the consequences of an employee’s refusal to be tested prior to returning to work.  Employers should also consider whether they will afford an employee the opportunity to take an unpaid leave of absence where they refuse to take a test in lieu of a disciplinary action.

Further, before resorting to disciplinary measures, employers should first consider the nature of the employee’s objection.  If the employee is simply annoyed or frustrated about the testing policy, disciplinary measures may be appropriate as the employees is failing to adhere to a company safety policy.  However, employers should evaluate whether the employee is asking for a disability accommodation, and if so, should consider alternative options to testing.

A Note about Isolation Practices and Employee Abuses.

In jurisdictions that do not require employees to isolate after potential symptoms or exposure, employers that need employees to work in the office may be turning to COVID-19 diagnostic testing as an alternative or supplement to isolation practices they consider impractical or prone to abuse.  Indeed, some employers are facing scenarios in which employees attempt to take advantage of company isolation policies in an effort to take extended time away from the workplace.

Employers facing this situation may consider implementing a diagnostic testing strategy (where permitted and feasible), but should also consider addressing the various employee abuse scenarios that might unfold and provide cautionary warnings to employees.  For example, New York, New Jersey, Massachusetts, and some other jurisdictions are requiring individuals who travel to certain states with troublesome COVID-19 metrics to quarantine for 14 days upon their reentry.  If an employee is planning travel to a “hot spot” on vacation to avoid returning to work, the employer should consider warning the employee that if they are unable to telework upon their return, they may be required to take additional paid time off or even unpaid leave.  Alternatively, employers facing operational difficulties if employers are away for multiple weeks may wish to revisit paid time off approval processes or condition approval of company-provided vacation time on an employee’s ability to return to work promptly after traveling.  In short, employers may have several options to address employees’ abuse of isolation rules that do not necessarily have to involve the implementation of diagnostic testing.

Final Considerations.

If an employer does decide to implement a testing strategy, it should ensure that its COVID-19 testing and screening protocols and policies adhere to relevant state and local guidelines, which vary greatly by jurisdiction.  Employers should further ensure they are tracking other practical aspects of testing.  For example, employers must safeguard employee medical records in accordance with Americans with Disabilities Act (“ADA”) requirements and the privacy requirements of various states and localities, which we discussed here.  When choosing a diagnostic test, employers must also ensure that the test is reliable and accurate – for instance, some rapid testing kits now entering the market may not meet the EEOC’s reliability and accuracy standards.  Similarly, any testing strategies must be uniformly applied so as not to cause disparate treatment amongst employees.  Employers should refer to the EEOC’s ADA guidance, which we discussed here, to ensure non-discriminatory application of testing policies.

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

For more on COVID-19 Testing see the National Law Review Coronavirs News section.

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.

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.

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.