New York’s landmark HERO Act becomes law – With some caveats

Well, that was fast! As we reported on Tuesday, the New York State legislature passed a sweeping bill in late April known as the HERO Act. The HERO Act represents a massive change to the Empire State’s workplace health and safety protocols.

At the time of our initial post, the HERO Act was awaiting Governor Andrew Cuomo’s signature. That signature came late Wednesday. Notably, however, the Governor has asked the legislature to make certain technical changes to the law, including giving the New York State Department of Labor and employers more specific instructions in developing and implementing the workplace standards required by the HERO Act. In addition, Governor Cuomo has asked that lawmakers add a requirement for employers to cure violations in order to better protect the safety of workers and limit claims by employees for violations, in limited circumstances where employers are acting in bad faith and failing to cure deficiencies.

Pennsylvania businesses may need to finalize reopening plans

By James A. Holt and Marguerite Goglia on 6 May 2021 Posted in COVID-19/Novel coronavirus, Employment & Labor (U.S.), Pennsylvania Employment Beat, Workplace Laws and Regulations

After more than a year of navigating the myriad orders impacting Pennsylvania businesses in response to the COVID-19 pandemic, the Wolf administration has announced that it will lift all mitigation orders, except masking, on May 31, 2021. Although the announcement was sparse on detail, its general nature suggests that the following mitigation mandates – which we have covered in detailed previously – will be lifted this Memorial Day.

Remote work

Although remote work was mandated unless impossible for a period of time, the Governor’s amended order of April 1, 2021 modified this requirement to only “strongly encourage” businesses to conduct their operations, in whole or in part, via telework. Effective May 31, 2021, businesses may be permitted to resume their normal in-person operations without restriction.

Business and building safety requirements for businesses with in-person operations.

Adhering to enhanced cleaning, sanitation, and operational requirements throughout the pandemic has presented a number of practical issues for businesses. Most recently, Governor Wolf’s November 27, 2020 Order set forth a number of enhanced cleaning and mitigation protocols for businesses maintaining in-person operations, including altering business hours to provide sufficient time to clean; wiping down carts and handbaskets before they become available to customers for use; staggering check-out counters and registers to allow for hourly cleaning; implementing temperature screenings before employees enter the business prior to the start of each shift; staggering employee break times; conducting meetings and trainings virtually; and scheduling handwashing breaks as necessary. Continue Reading

Department of Labor withdraws pro-business independent contractor final rule

By Mark S. Goldstein, Mark Phillips and Saranne Weimer on 5 May 2021 Posted in Employment & Labor (U.S.), Labor (U.S.), US Alert, Wage and Hour, Workplace Laws and Regulations

As we previously reported here and here, in January 2021 the U.S. Department of Labor (DOL) proposed a business-friendly final rule concerning the classification of workers as independent contractors under the Fair Labor Standards Act (FLSA). The final rule, which was scheduled to take effect in March 2021 (but never did), reaffirmed the use of the so-called “economic reality test” to distinguish between independent contractors and employees under the federal wage/hour law. In essence, the rule was intended to provide a more uniform approach to worker classification.

Shortly after taking office, however, President Biden postponed the effective date of the final rule and suggested it should be repealed. The Biden administration has now followed through on that plan, with the DOL blocking the rule entirely earlier today. In a press release announcing the rule’s withdrawal, the DOL stated: “Upon further review and consideration of the rule and having considered the public comments, the [DOL] does not believe that the Independent Contractor Rule is fully aligned with the FLSA’s text or purpose, or with decades of case law describing and applying the multifactor economic realities test.”

COVID-19, health and safety and dismissal

By Graham Green and Jonathan Lord on 5 May 2021 Posted in COVID-19/Novel coronavirus, Dismissals, Employment (UK), Employment Tribunals

COVID-19 has thrown up numerous and multi-varied concerns for employers and employees alike. One notable area of consideration and concern has been the delicate and difficult issue of dismissals related to health and safety reasons. A recent case has shed more light on how Tribunals may deal with the pandemic-related workplace issue of employees’ refusal to work on health and safety grounds, due to fear of COVID-19.

Rodgers v Leeds Laser Cutting Limited ET/1803829/2020

Case Facts

This case considered the availability and legitimacy of fears over exposure to/contracting COVID-19 at work acting as grounds for statutory protection against unfair dismissal.

The Claimant refused to come into work after another colleague began to show symptoms of COVID‑19, and self-isolated. He informed the Respondent that he would not return to work until lockdown eased, as he was concerned for his very young child, who has sickle cell disease. After a month of refusing to attend work, the Respondent was dismissed.

The Claimant did not have sufficient service to claim ordinary unfair dismissal, so instead claimed that he had been automatically unfairly dismissed for exercising his rights to leave the workplace and take steps to protect himself where he reasonably believed there was a serious and imminent danger, under sections 100(1)(d) and (e) of the Employment Rights Act 1996. Continue Reading

New York legislators pass sweeping new workplace health and safety bill

By Mark S. Goldstein and Alexandra Manfredi on 4 May 2021 Posted in Employment & Labor (U.S.), Labor Relations, New York Employment Beat, Workplace Laws and Regulations

In late April, New York State legislators passed a bill that can best be described as a “game changer.” Known as the Health and Essential Rights – or HERO – Act, the bill proposes a novel, sweeping overhaul of the Empire State’s workplace health and safety laws. Among other things, the HERO Act directs New York State Department of Labor (NYSDOL) to create minimum workplace safety standards, requires all New York business to adopt airborne infectious disease exposure plans, and authorizes the creation of joint labor-management workplace safety committees within every company.

The bill now heads to Governor Andrew Cuomo’s desk, where it is expected to be signed in the near term. Below we will outline the key provisions of the HERO Act. Continue Reading

Fourth Circuit confirms that parties can avoid appellate review of arbitration awards under the Federal Arbitration Act

By Betty S.W. Graumlich and Mark Passero on 26 April 2021 Posted in Employment & Labor (U.S.), US Alert, Virginia Employment Beat, Workplace Laws and Regulations

Arbitration provisions can be an important tool to add more certainty to the dispute resolution process and potentially reduce costs. In Virginia, employers should carefully consider whether and how to craft arbitration agreements in the wake of groundbreaking new laws passed last year creating new employment rights that will be litigated in state courts. Reed Smith’s previous blog posts on those new laws can be found here, here, and, here.

Recently, the United States Court of Appeals for the Fourth Circuit in Beckley Oncology Assocs. v. Abumasmah, No. 19-1751, 2021 U.S. App. LEXIS 10152 (4th Cir. Apr. 8, 2021) ruled on an issue of first impression that provides guidance to employers as they consider whether to require their employees to enter into arbitration agreements.

Background of the case: Dr. Rami Abumasmah, a former oncologist at Beckley Oncology Associates (BOA) filed an arbitration action against BOA asserting he was owed bonuses pursuant to his employment agreement. The arbitrator awarded Dr. Abumasmah $167,030 and BOA subsequently filed a complaint in federal district court to vacate the arbitration award. The applicable arbitration provision, however, stated that the arbitrator’s decision “shall be final and conclusive and enforceable in any court of competent jurisdiction without any right of judicial review or appeal.” The District Court confirmed the award and held that the “clause prohibiting judicial review of the arbitration award was unenforceable” under the Federal Arbitration Act (FAA). BOA then appealed.

The Fourth Circuit decision: The “validity of an appellate waiver in an arbitration agreement under the FAA [was] a matter of first impression” for the Fourth Circuit. The Fourth Circuit, relying on Tenth Circuit and Ninth Circuit decisions, noted that the parties to an arbitration agreement are entitled to only a “minimum level of due process” in the form of a single judicial review of an arbitration award. In this case, the Fourth Circuit held that BOA received that minimum level of due process at the district court level. The Fourth Circuit further held that nothing in case law or under the FAA precluded an appellate waiver (as opposed to a general judicial waiver), noting that the FAA states that an “appeal may be taken.” See 9 U.S.C. § 16(a)(1)(D) (emphasis added). By limiting further litigation, the Fourth Circuit held that the parties’ agreement to waive appellate review furthered the FAA’s policy objectives – to treat arbitration as an alternative to litigation, not its precursor.

What is the takeaway? While parties in the Fourth Circuit may not waive judicial review of arbitration awards altogether, they may waive appellate review. Given the recent wave of new employment laws and the Fourth Circuit’s decision, Virginia employers should carefully consider implementing arbitration agreements for their employees with an appellate waiver. As the Fourth Circuit held, arbitration should be viewed as an alternative to litigation. In order to ensure that employers are getting the benefit of that alternative and in an effort to keep costs down, employers should have an attorney draft or carefully review their arbitration agreements for compliance and best practices.

For more information on developments in these areas or their impact upon your business, please contact Betty Graumlich at bgraumlich@reedsmith.com, Mark Passero at mpassero@reedsmith.com or the Reed Smith lawyer with whom you normally work.

Navigating post-pandemic telework requests

By Christopher Bouriat and Mariah McGrogan on 12 April 2021 Posted in COVID-19/Novel coronavirus, Employment & Labor (U.S.), Workplace Laws and Regulations

For more than a year, many American workers have been working from home. Now, as restrictions are lifting across the country, employers are beginning to call employees back to the office. Employers may see an uptick in requests to work remotely, particularly given the popularity of working from home. In responding to such requests, employers must be mindful of the Americans with Disabilities Act (ADA) and similar state laws.

Large portions of the American workforce report that they enjoy working from home, and the pandemic has shown telework is possible.

A recent study conducted by Harvard Business School Online reveals that some employees are not interested in returning to the office. The survey showed that 81 percent of respondents either don’t want to go back to the office, or would prefer a hybrid schedule (allowing them to work from home 2-3 days a week) going forward. One in three employees report that they felt that their overall performance and quality of their work had improved in the remote work environment, and the same percentage indicated that they are able to focus more at home than they are in the office.

Equal pay: Comparators in different establishments

By Graham Green and Laura Brown on 8 April 2021 Posted in Employment (UK), Equal Pay

In the long-running case of Asda Stores v Brierley and others, the Supreme Court ruled that, for the purposes of an equal pay claim, a group of female retail store employees could rely upon the work of mainly male depot distribution employees for comparison even though they are located at different sites.

Generally speaking, an equal pay claim can only progress if the claimant can establish a disparity between their contractual terms and those of an appropriate comparator of the opposite sex performing equal work at either:

the same establishment; or
a different establishment where “common terms” apply either generally or between the individual and their comparator.

Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward

By Betty S.W. Graumlich, Liza Craig and Ozra Ajizadeh on 31 March 2021 Posted in California, Discrimination, Employment & Labor (U.S.), Equal Pay, US Alert, Workplace Laws and Regulations

Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.

Background

The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.

Biden priority

On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.

Important upcoming changes that UK employers need to be aware of

By Graham Green and Helena Tiernay on 26 March 2021 Posted in Employment (UK)

The start of April sees a number of important changes that employers in the UK need to be aware of:

1^st April 2021 – Increases to National Minimum Wage (employers should note the change to the age categories):

Age over 23: £8.91 (from £8.72 for over 25 year olds)
Age 21-22: £8.36 (from £8.20 for 21-24 year olds)
Age 18-20: £6.56 (from £6.45)
Age 16-17: £4.55 (from £4.62)
Apprentices: £4.30 (from £4.15)

4^th April 2021 – Statutory rate increases:

Statutory sick pay: £96.35 per week (up from £95.85)
Statutory maternity, paternity, adoption, shared parental, and parental bereavement pay: £151.97 per week (up from £151.20)