On February 21, 2023, the National Labor Relations Board issued a landmark decision in McLaren Macomb that has the potential to seismically change how employers approach and manage employee separations that include severance packages. In response to this landmark decision and the impact it will have on many employers, Reed Smith’s Labor & Employment team
On March 1, 2022, Colorado Senate Bill 21-271 (SB 21-271) goes into effect. This new law will make the violation of a number of statutes, including Colorado’s non-compete law, C.R.S. § 8-2-113, a criminal offense, specifically a class 2 misdemeanor. See Colorado Senate Bill 21-271, Section 81.
In Colorado, covenants not to compete that restrict the right of any person to receive compensation for the performance of skilled or unskilled labor are void unless one of the following four exceptions are met:
- Any contract for the purchase and sale of a business or the assets of a business
- Any contract for the protection of trade secrets
- Any contractual provision providing for recovery of the expense of educating and training an employee who was employed by the employer for less than two years
- Executive and management personnel and officers and employees who constitute professional staff to executive and management personnel
Under the Occupational Safety and Health Act (OSH Act or the Act), employees who raise concerns regarding safety or health in the workplace are protected against retaliation from their employer. With the publication of the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS), employers should be mindful that the Act’s whistleblower protections extend to employees who raise concerns about their employer’s compliance with the ETS.
On November 5, 2021, OSHA published its much-anticipated ETS designed to minimize the risk of COVID-19 transmission in the workplace. We have previously discussed the requirements of the ETS, but generally speaking, the ETS requires employers with 100 or more U.S. employees to implement a policy that either (i) mandates COVID-19 vaccination for all employees, or (ii) encourages vaccination for all employees and requires testing of unvaccinated employees. The ETS also requires paid time off for vaccination and recovery from the side effects of vaccination, and it imposes recordkeeping obligations on employers.
Given OSHA’s limited number of workplace safety inspectors and the large number of employers subject to the ETS, employees will be key in enforcement of the ETS as suggested by recent remarks by the Biden administration. Jim Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, recently stated that OSHA will focus on job sites “where workers need assistance to have a safe and healthy workplace … [t]hat typically comes through in the form of a complaint.” And, on November 10, 2021, in the announcement of a joint initiative between the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) to increase protections for whistleblowers, Solicitor of Labor Seema Nanda remarked: “[i]n the U.S. Department of Labor’s fight against … unsafe or unhealthy workplaces, and other unlawful employment practices, we will use all tools available to protect workers from retaliation.”
Further, while employees previously could file complaints with OSHA raising workplace safety and health concerns related to COVID-19 under the Act’s General Duty Clause, the ETS makes it easier for OSHA to establish a violation of the Act. Unlike the amorphous General Duty Clause, the ETS sets out specific standards for employers and penalties for failure to comply. Moreover, the ETS obviates the need for OSHA to establish a recognized hazard – that is, the workplace condition or practice to which employees are exposed has the potential for death or serious physical harm – for each General Duty clause violation since OSHA has already determined that COVID-19 constitutes a recognized hazard determination in issuing the ETS.
Continue Reading Employers subject to OSHA ETS must be mindful of OSH Act whistleblower protections
The Texas Legislature has been quite busy over the most recent regular and two specially-called legislative sessions. It adjourned its second specially-called legislative session on September 2, 2021. Additional bills may be enacted into law if and when Governor Greg Abbott calls a third special session. So far, Governor Abbott has signed into law several bills that may have flown under the radars of many Texas employers. Here’s a brief recap of several new laws that may impact Texas businesses and their workforce.
Expansive new sexual harassment protections
As we noted in prior posts (July 6, 2021 and September 2, 2021), Texas passed several new laws that increase legal protections against sexual harassment. The laws, which went into effect on September 1, 2021, expand liability for sexual harassment to companies with just one employee and to individual supervisors and coworkers. The legislation also lengthens the deadline from 180 days to 300 days for a claimant to file a charge alleging sexual harassment with the Texas Workforce Commission.
Liability shield for Texas businesses from most COVID-19 claims
As we noted in prior posts (July 15, 2021 and August 19, 2021), Texas – along with 18 other states – passed statutory liability protections for businesses against claims arising from the ongoing COVID-19 pandemic. The Pandemic Liability Protection Act (PLPA), which went into effect on June 14, 2021, grants retroactive liability protection for both small and large businesses for claims commenced on or after March 13, 2020. The PLPA does not provide Texas businesses an absolute immunity shield, and claims can still be brought for a pandemic-related injury or death if the business:
- Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
- Knowingly failed or refused to comply with government standards, guidance or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.
As written, the PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration.
Continue Reading Overview of several new workplace laws Texas employers should know about following the recent legislative sessions
On August 11, 2021, Dallas County Judge Clay Jenkins issued an order requiring masks in Dallas County businesses, schools, and county buildings. Judge Jenkins’ order comes on the heels of a Dallas County state court issuing a temporary restraining order of Texas Governor Greg Abbott’s July 29, 2021 order barring mask mandates by local governmental…
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
Texas recently enacted the Pandemic Liability Protection Act (PLPA) joining a number of other states that have passed statutory liability protections for businesses against claims arising during a pandemic including the ongoing COVID-19 pandemic. The new law, which has been signed into effect by Governor Abbott, grants retroactive liability protections for both small and large businesses. Under the PLPA, businesses of all sizes are protected from nearly all claims of injury or death from exposure to a pandemic disease regardless of whether the person injured was an employee.
The PLPA does not, however, provide Texas businesses an absolute shield from liability. Under limited circumstances a claim may still be brought for a pandemic-related injury or death:
- Where the business knowingly failed to warn the individual of, or fix, a condition within the business’ control, despite having a reasonable opportunity to do so, with the knowledge that the individual was more likely than not to come into contact with or be exposed to the pandemic disease, and the failure to warn or fix the condition was the cause in fact of the individual contracting the disease; or
- Where the business knowingly failed to implement, refused to comply with, or acted in flagrant disregard of the standards, guidance, or protocols put forth by the government that are intended to lower the likelihood of exposure to the pandemic disease, despite having a reasonable opportunity to do so, and this failure or refusal to comply was the cause in fact of the individual contracting the pandemic disease.
The effects of the #MeToo movement for employers continue with Governor Abbott recently signing two new bills into law (effective September 1, 2021) that greatly amplify legal protections against sexual harassment. One bill extends the statute of limitations for sexual harassment claims from 180 days to 300 days. The other opens the door for small employers, and even individual supervisors and coworkers, to be held liable for sexual harassment. Also, Texas employers must now take “immediate and appropriate corrective action” to avoid liability for sexual harassment. We explain these new laws in more detail below, and discuss steps Texas employers may want to consider before the new laws go into effect.
Statute of limitations lengthened for sexual harassment claims (House Bill 21)
Currently, employees must file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged harassing conduct. House Bill 21, which Governor Abbott signed into law on June 9, 2021, lengthens the statute of limitations for filing sexual harassment claims from 180 days to 300 days from the date of the alleged harassment. The longer limitations period applies only to sexual harassment claims based on conduct that occurs on or after September 1, 2021. The current 180 day statute of limitations remains unchanged for other types of alleged discrimination (e.g., based on race, age, etc.).
Because the statute of limitations under federal law for sexual harassment claims is 300 days, plaintiffs who miss the 180-day deadline under Texas law were typically only able to pursue their sexual harassment claims in federal court (assuming, of course, they initiated legal proceedings within the 300-day federal deadline). Beginning this fall, those plaintiffs will be able to pursue such claims in either federal or state court.
Continue Reading Attention Texas employers: Starting September 1, 2021, companies with just one employee—as well as individual supervisors and coworkers—can be liable for sexual harassment
The current prominence of the multi-entity workplace—where so-called “host” employers rely on third-party staffing agencies to perform various functions—makes a clear determination of statutory “employer” status critical in a variety of contexts. Oftentimes, a host employer will argue that a worker is an independent contractor rather than employee. This approach typically leaves the staffing agency responsible for classification decisions under the Fair Labor Standards Act and for Occupational Safety and Health Act compliance.
In April 2021, the Texas Supreme Court greatly expanded the responsibility of host employers in the context of workplace injuries. Specifically, in Waste Management of Texas, Inc. v. Stevenson, the Court held that a worker who was injured on the job while employed by a temporary staffing agency was the host employer’s employee for workers’ compensation purposes, notwithstanding a contract between the host employer and staffing agency that expressly stated workers were independent contractors.
In Waste Management, the plaintiff, Robert Stevenson, was hired by Taylor Smith Consulting, LLC and assigned to work for Waste Management of Texas, Inc. on a temporary basis. No. 19-0282, 2021 Tex. LEXIS 348, at *3 (Apr. 30, 2021). In May 2014, Stevenson was working on a Waste Management garbage truck on a garbage-collection route when the driver of the truck accidentally backed over Stevenson’s leg and foot. Both Waste Management and Stevenson’s staffing agency employer carried workers’ compensation insurance. Stevenson applied for benefits under the staffing agency’s policy and separately filed suit against Waste Management and the driver, alleging common-law negligence. Waste Management won summary judgment, successfully arguing that, because it was Stevenson’s employer, the Texas Workers’ Compensation Act barred Stevenson’s claims against it and the driver. Stevenson unsuccessfully argued that the staffing contract, which expressly stated that temporary workers like Stevenson “shall be independent contractors in respect of Waste Management”, should govern. The Fourteenth Court of Appeals reversed and remanded, holding there was a genuine fact issue as to whether Stevenson was Waste Management’s employee.
Continue Reading Texas Supreme Court finds injured contract worker was an employee for workers’ compensation purposes
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).
Continue Reading Fifth Circuit says Texas trial court should have considered reforming an overbroad non-compete at the preliminary injunction stage