California expands Family Care and Medical Leave eligibility

On September 17, 2020, Governor Gavin Newsom signed Senate Bill 1383 (SB-1383), which significantly expands employee eligibility for family and medical leave under the California Family Rights Act (CFRA).

The law, which will go into effect January 1, 2021, reduces the number of employees required for an employer to be covered under the CFRA and also expands the reasons why employees may take these leaves.

Currently, private employers with 50 or more employees working in a 75-mile radius are required to provide employees with leave under the CFRA, while private employers with 20 or more employees are required to provide limited leave time for baby bonding pursuant to the New Parent Leave Act (NPLA).

SB 1383 expands the leave entitlement to cover smaller employers, requiring employers with five or more employees to provide eligible employees with up to 12 weeks of unpaid leave within a 12-month period for a qualifying reason. Qualifying reasons include:

Leave for the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee;
Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition;
Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions;
Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States;

This list of qualifying reasons further expands leave entitlement beyond what employers are required to provide under the current CFRA and NPLA. Under SB 1383, qualified employees will be entitled to take leave to care for the serious health condition of a grandparent, grandchild, or sibling in addition to the current requirement covering an employee’s parent, child, and spouse or domestic partner.

U.S. Department of Labor proposes new “reality” for classifying independent contractors

By Mark S. Goldstein and Leora Grushka on 24 September 2020 Posted in Employment & Labor (U.S.), Labor (U.S.), US Alert, Workplace Laws and Regulations

This week, the U.S. Department of Labor (DOL) proposed a new rule that would create a uniform approach to the way companies classify workers as independent contractors or employees under the Fair Labor Standards Act (FLSA). The notion of classifying workers as independent contractors versus employees has continued to gain importance in recent years, given the growing gig economy, which makes independent contractors central to the business models of many major companies.

The DOL’s newly proposed rule would greatly benefit companies, by making it easier to classify workers as independent contractors and thereby remove a company’s obligation to provide typical employee benefits and workplace protections, such as paid leave, overtime pay and other fringe benefits. This marks a large shift from the standard proposed under the Obama administration, which would have broadened the scope of employee status, but was ultimately nixed by the Trump administration in 2017. Continue Reading

DOL issues new final rule and updated guidance for employers who use the fluctuating workweek method to calculate overtime

By Michael Correll and Michael Lombardino on 23 September 2020 Posted in Employment & Labor (U.S.), Wage and Hour, Workplace Laws and Regulations

On May 20, 2020, the U.S. Department of Labor (DOL) published a final rule explaining that bonuses and other incentive payments—paid in addition to an employee’s weekly salary—are compatible with the fluctuating workweek (FWW) method of calculating overtime under the Fair Labor Standards Act (FLSA). The final rule went into effect on August 7, 2020.

On August 31, 2020, the DOL issued an opinion letter confirming that an employee’s work hours do not have to fluctuate above and below 40 hours per workweek for an employer to use the FWW method of calculating overtime pay. The opinion letter also cautioned that employers who use the FWW method generally may not “deduct from an employee’s salary for absences occasioned by the employee.” Both developments are discussed below, following the FWW refresher. Continue Reading

DOL doubles-down on FFCRA rules (but amends others) in response to federal court decision

By Mark S. Goldstein, Michael Correll and Amy Harwath on 22 September 2020 Posted in COVID-19/Novel coronavirus, Employment & Labor (U.S.), Sick leave, US Alert, Workplace Laws and Regulations

On September 11, 2020, the U.S. Department of Labor (DOL) issued a new administrative rule concerning the Families First Coronavirus Response Act (FFCRA), a federal law that provides two forms of COVID-19-related paid time off to employees of businesses with fewer than 500 employees. The rule comes just over a month after a New York federal court rejected substantial portions of the agency’s prior FFCRA guidance in State of New York v. U.S. Department of Labor et al., No. 1:20-cv-03020 (S.D.N.Y. Aug. 3, 2020). And while the new rule does include some revisions based on the court’s critiques, it mostly doubles down on several of the DOL’s prior interpretations of the FFCRA that were rejected by the Court. More particularly, in the new rule, the DOL:

Reaffirms that an employee may only take FFCRA leave if the employer has work available for the employee.
Reaffirms that intermittent FFCRA leave may only be taken with an employer’s approval.
Narrows the definition of the term “health care provider” (although still not as narrowly as that term is defined in other federal statutes).
Revises the FFCRA’s documentation requirement to provide that paperwork supporting the need for leave may be given “as soon as practicable” (as opposed to before the leave commences).

The new rule took effect on September 16, 2020 and will remain in place through December 31, 2020, when the FFCRA is set to expire. Continue Reading

California requires new COVID-19 supplemental paid sick leave

By Michele Haydel Gehrke, Mark Phillips, Marianne Rittenburg and Ronnie Shou on 15 September 2020 Posted in California Employment Beat, COVID-19/Novel coronavirus, Employment & Labor (U.S.), Sick leave, Wage and Hour, Workplace Laws and Regulations

On September 9, 2020, Governor Newsom signed Assembly Bill (AB) 1867 into law, adding section 248.1 to the Labor Code. Under this new section, “hiring entities” are required to provide supplemental COVID-19 paid sick leave (CPSL) to “covered workers.” This is in addition to any paid sick leave that may be available to the covered workers under California’s Healthy Workplace Healthy Family Act of 2014 (HWHFA)^[1].

“Hiring entities” include private businesses with 500 or more employees in the United States or public entities that employ health care providers or emergency responders that have elected to exclude such employees from emergency paid sick leave under the Federal Families First Coronavirus Response Act. Notably, there is no exception for unionized workforces with a collective bargaining agreement providing for paid sick leave.

“Covered workers” include individuals employed by a hiring entity that leave home to perform work. Excluded from covered workers are food sector workers, who are instead provided supplemental COVID-19 paid sick leave under Labor Code section 248. Continue Reading

Pennsylvania medical marijuana use on the rise in times of COVID-19

By Jay Glunt, Chalyn Kaufman and Marguerite Goglia on 10 September 2020 Posted in COVID-19/Novel coronavirus, Employment & Labor (U.S.), Medical Marijuana, Pennsylvania Employment Beat, Workplace Laws and Regulations

Pennsylvania’s Medical Marijuana Act (the “Act”) legalized the use of medical marijuana as of April 2016. Initially, the Act permitted the use of medical marijuana to treat 17 serious medical conditions when certified as such by a properly credentialed healthcare provider. The list included conditions such as cancer, HIV/AIDS, Parkinson’s disease, neurodegenerative diseases, and terminal illnesses. Since 2016, however, the Act’s list of qualifying conditions has expanded and now covers 23 conditions, including anxiety.

At the time that the Act was amended to include anxiety as a covered condition, approximately 19 percent of U.S. adults had experienced anxiety disorders in the prior year. These numbers appear to be on the rise, likely due at least in part to the COVID-19 pandemic. In April 2020, the National Center for Health Statistics partnered with the Census Bureau to implement the Household Pulse Survey, a 20-minute online survey designed to assess the impact of the coronavirus pandemic on mental health. This survey reveals that between April 23, 2020 and July 21, 2020, nearly 32 percent of adults reported symptoms of anxiety disorder. As a benchmark for comparison, the CDC points out that the National Health Interview Survey indicated that only 8.2 percent of adults aged 18 and over reported symptoms of anxiety disorder between January and June of 2019. Continue Reading

New York federal judge nixes U.S. Department of Labor’s new “joint employer” rule

By Mark S. Goldstein and Leora Grushka on 9 September 2020 Posted in Employment & Labor (U.S.), Labor Relations, New York Employment Beat, Wage and Hour, Workplace Laws and Regulations

Earlier this year, the U.S. Department of Labor (DOL) issued a rule updating its interpretation of the “joint employer” doctrine under federal wage and hour law. Yesterday, however, a New York federal judge struck down a significant portion of the rule. Judge Gregory H. Woods’ 62-page decision delivers a significant blow to businesses that had relied on the business-friendly nature of the DOL’s new rule.

By way of background, the joint employment doctrine refers to a situation where a worker is deemed employed by more than one entity at the same time. If multiple entities are considered joint employers, they can then generally each be held jointly and severally liable for workplace violations (e.g., discrimination, harassment, retaliation, unpaid wages). Continue Reading

Fifth Circuit says Texas trial court should have considered reforming an overbroad non-compete at the preliminary injunction stage

By Paulo McKeeby and Michael Lombardino on 13 August 2020 Posted in Employment & Labor (U.S.), Texas Employment Beat, Workplace Laws and Regulations

The enforceability of employment non-competes in Texas is governed by the Texas Covenants Not to Compete Act. If a non-compete covenant is found to be overbroad, “the court shall reform the covenant to the extent necessary to cause” the covenant to be reasonable. Tex. Bus. & Com. Code § 15.51(c). The Texas Supreme Court has yet to address whether reformation of an overbroad non-compete restriction is appropriate at the temporary injunction stage or whether reformation is only a final remedy after a trial on the merits. In a recent published opinion, the Fifth Circuit squarely examined this issue. Calhoun v. Jack Doheny Companies, Inc., No. 20-20068, — F.3d —, 2020 U.S. App. LEXIS 25001 (5th Cir. Aug. 7, 2020).

New York’s healthy terminals act may create additional wage and benefits obligations for airport employers

By Michele Haydel Gehrke and Amanda Brown on 5 August 2020 Posted in Employment & Labor (U.S.), New York Employment Beat, Wage and Hour, Workplace Laws and Regulations

Airport workers at John F. Kennedy (JFK), LaGuardia (LGA), and New York Stewart International Airport (SWF-Stewart Intl.) may soon be receiving increased wages and benefits under the Healthy Terminals Act (the “Act”) (Senate Bill S6266D). Spurred by the COVID-19 related death of a JFK airport worker, the Act recently passed both the New York State Senate and Assembly. Next, the Act will be delivered to Governor Cuomo for his signature. Governor Cuomo has not indicated whether or not he will sign the Act. If signed, the Act will take effect on January 1, 2021.

Scope of covered individuals

The Act has a broad (and ambiguous) scope of coverage. The Act defines covered airport workers as any worker employed by a covered airport employer that works at least half of the workweek at a covered airport location. The Act exempts individuals who qualify for the executive, administrative, and professional exemptions under the Fair Labor Standards Act (“FLSA”) or are covered under Articles 8 and 8-a of New York Labor Law, which applies to construction workers on New York City’s public work and grade crossing elimination projects.

Covered airport employers are defined as any entity employing a covered airport worker (other than public agencies) and covered airport locations include any airport operating under the jurisdiction of the Port Authority of New York and New Jersey, which currently encompasses JFK, LGA, and SWF-Stewart Intl. The Act does not exclude air carriers and appears to cover not only air carriers, but also ground handling companies providing ramp, catering, and other support services.

Everything you need to know about New York’s forthcoming statewide paid sick leave law

By Mark S. Goldstein, Alexandra Manfredi and Leora Grushka on 3 August 2020 Posted in Employment & Labor (U.S.), New York Employment Beat, Sick leave, Wage and Hour, Workplace Laws and Regulations

The enactment of paid sick leave laws began as a state and local employment law trend roughly a decade ago, gaining substantial momentum in the mid-2010’s. Amidst this wave, New York City adopted a paid sick leave law in April 2014. The City Council later amended the law – in May 2018 – to provide employees with “safe leave” as well. And in 2019, Westchester County enacted its own paid sick and safe leave law.

Now, more than six years after NYC adopted the original iteration of its paid sick leave law, New York State has enacted its own statewide paid sick leave law (NYPSL), which takes effect on September 30, 2020. Principally, NYPSL provides paid time off for certain sickness-related reasons, with the specific amount of time varying based on employer size and net income. Below is a summary of the new law’s key provisions. Continue Reading