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One of the priorities of the current administration is to police the alleged abuse of “gig workers,” particularly through the Department of Labor and the National Labor Relations Board. The Federal Trade Commission (FTC) is now joining those agencies in the employee-protection business. The FTC recently announced it has initiated enforcement efforts to protect gig workers from alleged deception about pay, work hours, unfair contract terms, and anti-competitive practices.

According to the 17-page Policy Statement published by the FTC on September 15, 2022 (Statement), 16% of Americans report earning income through an online gig platform. Gig work has become commonplace in food delivery and transportation. As the FTC notes, gig work is expanding into healthcare, retail, and other sectors of the economy.

Three primary concerns for gig workers

The FTC’s Statement outlines three key concerns the FTC plans to address via the full weight of its legal and regulatory authority.

1. “Control without responsibility” – Most gig companies categorize gig workers as independent contractors instead of employees. “Yet in practice,” the FTC explains, “gig companies may tightly prescribe and control their workers’ tasks in ways that run counter to the promise of independence and an alternative to traditional jobs.” The FTC states that improperly classifying workers as independent contractors (instead of employees):

  • Deprives workers of essential rights, like overtime pay, health and safety protections, and the right to organize;
  • Burdens workers with undue risks such as unclear and unstable pay and requires they use their personal equipment (car, cell phone, etc.); and
  • Forces workers to cover business expenses commonly paid for by employers (insurance, gas, maintenance, etc.).

2. “Diminished bargaining power” – Gig workers are not given information about when work will be available, where they will have to perform it, or how they will be evaluated. Because of their lack of bargaining power and decentralized work environment, the FTC believes workers have little leverage to demand transparency from gig companies. Due to what the FTC characterizes as a “power imbalance”:

  • “[A]lgorithms may dictate core aspects of workers’ relationship with a” company’s platform, “leaving them with an invisible inscrutable boss.”
  • Workers are often forced to sign take-it-or-leave-it agreements with liquidated damages clauses, arbitration clauses, and class-action waivers.

3. “Concentrated markets” – Markets populated by gig companies are often concentrated among just a handful of businesses, resulting in reduced choice for workers, customers, and businesses. The FTC believes the resulting loss in competition may incentivize gig companies to suppress wages below competitive rates, reduce job quality, and impose onerous terms and conditions on gig workers.

Continue Reading FTC set to begin policing companies for alleged gig worker abuse

On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit held that gender dysphoria could qualify as a disability under the Americans with Disabilities Act (ADA). (Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022)) According to the World Professional Association for Transgender Health Standards of Care, gender dysphoria

Over the past two years, the COVID-19 pandemic has triggered some of the most significant societal shifts in generations, and the employment law landscape has not been immune to such changes. Employers have had to adjust their workplace practices by incorporating new policies such as remote work, vaccine mandates, paid safe and sick leave, and various other federal, state, and local requirements to accommodate the world’s new normal.

Now, in the third quarter of 2022, the world is seeing a new outbreak: monkeypox. On July 23, 2022, the World Health Organization (WHO) declared monkeypox a public health emergency of international concern – the organization’s highest level warning. Shortly after, on August 4, 2022, the United States declared monkeypox a public health emergency. The arrival of monkeypox is a stark reminder that employers should have general policies in place to address communicable diseases so that work operations are not meaningfully disrupted and employees understand their entitlements and obligations when they are under the weather.

This post will provide employers with pertinent information related to monkeypox, including methods of prevention, handling workplace exposures, administering policies and practices, and how to get ahead of future communicable disease outbreaks as they arise.  

Continue Reading What do U.S. employers need to know about Monkeypox?

Late last year, the U.S. Food and Drug Administration (the FDA) issued the first approvals for a COVID-19 vaccine. Shortly thereafter, the U.S. Equal Employment Opportunity Commission (the EEOC) issued guidance on the interplay between federal anti-discrimination law and vaccine-related issues, including the permissibility of mandatory employer vaccination policies. The below FAQs address some of the more salient questions surrounding such policies and their implementation, as well as other workplace issues triggered by the vaccine. There are undeniably more questions than answers at present with respect to vaccine-related workplace issues. Before taking any material workplace action with respect to the vaccine, therefore, please consult with a Reed Smith employment lawyer. We also have a downloadable version of our FAQs.

Q: Can employers adopt a mandatory employee vaccination policy?

A: Generally speaking, yes. In guidance issued in late May 2021, the EEOC took the position that mandatory vaccination policies are generally permissible under federal anti-discrimination laws. Just a few weeks later, in June 2021, a federal court – in the first ruling on this issue – echoed this sentiment in concluding that such policies are generally permissible. The following month, the U.S. Department of Justice issued a detailed memo reaching the same conclusion.

The two primary exceptions to the general permissibility of employer-mandated vaccination policies are for employees with disabilities and for those with a sincerely held religious belief, practice, or custom. If an employee refuses to be vaccinated and objects to a mandatory vaccination policy on one of these grounds, the employer must engage in the so-called interactive process with the employee and, subject to the “undue hardship” standards discussed below, provide the employee with a reasonable accommodation in line with applicable law.

In addition to legally required accommodations, the EEOC also cautions employers to be cognizant of any potential disparate impact created by a vaccine mandate.

Q: Are there state or local laws that address mandatory COVID-19 vaccination policies?

A: Employers must pay attention to state laws in the jurisdiction(s) where they operate. Several states have introduced legislation attempting to limit private employers’ ability to mandate COVID-19 vaccines. To date, such efforts have been without success other than in Montana.

Q: If an employer adopts a mandatory employee vaccination policy, how should it respond to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a disability or a sincerely held religious belief, practice, or custom?

A: As noted, the employer must engage in an interactive process with the employee. When an employee objects to vaccination, they are requesting an accommodation under Title VII of the Civil Rights Act of 1964 (Title VII) (for a sincerely held religious belief, practice, or custom) or the Americans with Disabilities Act (ADA) (for a disability). The employer must provide a reasonable accommodation unless the accommodation would pose an undue hardship. Undue hardship is defined under Title VII as an accommodation that poses a “more than de minimis” cost or burden. For the ADA, undue hardship is more onerous to establish and is defined as creating significant difficulty or expense for the employer.
Continue Reading To mandate or not? FAQs on mandatory vaccine programs for employers

On July 27, 2021, the Centers for Disease Control and Prevention (CDC) updated its COVID-19 guidance. The revised guidance, which has significant implications in the employment context, recommends that fully-vaccinated individuals wear masks in “public indoor settings in areas of substantial or high transmission.” The guidance further recommends that vaccinated persons be tested after a known or suspected COVID-19 exposure. The CDC’s guidance reverses its May 2021 guidance, which advised that fully-vaccinated individuals could generally stop wearing masks and cease social distancing. The CDC’s new guidance comes amidst a recent uptick in COVID-19 cases stemming from the highly-infectious Delta variant and is already complicating employers’ COVID-19 policies and return to work plans.

Updated masking recommendation

The CDC’s revised guidance acknowledges that fully vaccinated individuals can become infected with COVID-19 despite being vaccinated in a “breakthrough” infection. The CDC further acknowledges that, while breakthrough infections “happen in only a small proportion of the people who are fully vaccinated,” individuals with breakthrough infections can spread COVID-19. As a result of these concerns, while not referencing the workplace specifically, the CDC now recommends that all individuals, regardless of vaccination status, wear masks in public indoor settings in areas of substantial or high transmission.

Continue Reading CDC releases new guidance for fully vaccinated individuals as COVID-19 rates continue to climb nationwide