Category: Legal

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Retaliation under the FFCRA is as illegal as is retaliation under any other employment statute

child care, work from home

MaryJo Delaney is suing her former employer after it demoted her from her management position following her return from a COVID-related layoff, for which she had volunteered so that she could stay at home with her 9-year-old son whose school was closed.

When her governor locked down the state early in the pandemic, her employer remained open as an essential business. It offered a voluntary layoff to anyone who wished to avoid the risk of contracting the virus. Delaney chose that option to care for her son.

She returned to work in May when the company recalled all laid-off employees. She requested to work limited hours, again because of her need to care for her son, but was told that reduced hours would result in a demotion. Instead, her employer permitted her to shift her hours to account for her child-care needs.

According to her complaint, however, her employer started to “overly scrutinize and nitpick [her] work performance and subject[ed] [her] to unfair criticism” upon her return to work. That criticism led to her demotion, which led to her resignation, which led to her lawsuit claiming violations of the Families First Coronavirus Response Act.

If your business has fewer than 500 employees, your employees have a right under the FFCRA to take leave to care for their child(ren) whose school is closed or whose childcare provider is otherwise unavailable because of COVID-19. If you interfere with that right or retaliate against an employee who takes such leave, you are violating the FFCRA.

That said, an employer isn’t powerless in this situation.

  • You can offer remote work for employees who can perform their jobs away from the workplace. If you make remote work available, an employee does not qualify for FFCRA leave.
  • You can offer a flexible work schedule to allow an employee to flex his or her hours around their childcare-related needs, which would also obviate an employee’s right to FFCRA leave.
  • If you have fewer than 50 employees, you might qualify for the small-business exception to the FFCRA’s childcare-leave provisions and may not have to offer such leave at all.

What you cannot do, however, is outright deny leave if an employee qualifies or retaliate against an employee who takes such leave. That’s illegal and will get you sued. Take heed, because as COVID number skyrocket, if this isn’t an issue with which you’ve had to deal, it’s more than likely that you will and soon.

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The 11th nominee for the Worst Employer of 2020 is … the horrific human traffickers

gavel, legal, OSHA

Today’s nominee for the Worst Employer of 2020 is beyond description. NBC Bay Area provides the details:

A Gilroy (CA) couple has been charged with human trafficking after forcing a man to work 15-hour shifts seven days a week for no pay at their liquor store and then locking him inside the store overnight, the Santa Clara County District Attorney’s Office said Monday.

The victim slept in a storage room and bathed in a mop bucket, authorities said.

Amarjit and Balwinder Mann, both 66, allegedly threatened the victim with deportation if he reported them to law enforcement. The Manns have been charged with felony human trafficking, witness intimidation and wage theft involving four victims, the DA’s office said. They face prison time if convicted.…

The victim had flown from India in 2019 expecting to travel to the U.S. with the couple. Instead, the Manns took his money and passport and put him to work without pay or a key to leave the store at night, investigators said.

You’d think I’d be numb to these atrocities by this point, but this level of cruelty just leaves me speechless.

Voting for this year’s Worst Employer will open on Dec. 1. This year, however, we will have two categories and two winners—The Worst Employer of 2020, and the Worst COVID Employer of 2020. Please come back then to make sure to cast your ballot.

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Breaking down the potential liabilities in Ohio’s new mask rules

essential workers; workers' compensation, mask

During yesterday evening’s statewide address, and amid dangerously rising COVID-19 infections and hospitalization, Governor Mike DeWine, announced the reissuing and restating of Ohio’s mask mandate. The order now contains four specific rules for businesses to follow regarding mandatory masking.

  1. Each business will be required to post a Face Covering Requirement sign (version 1 / version 2) at all public entrances of the store.
  2. Each business will be responsible for ensuring that customers and employees are wearing masks.
  3. A new Retail Compliance Unit, comprised of agents led by the Bureau of Workers’ compensation, will inspect to ensure compliance.
  4. First violations will receive a written warning, and a second will result in a 24-hour closure of the business.
construction, mask, mobile technology, COVID-19First and foremost, before the disabled and their advocates start screaming that this order violates the ADA, it doesn’t. Yes, Title III of the ADA requires that businesses that are open to the public make exceptions to mask rules for those with disabilities that prevent them from wearing a mask. That accommodation, however, need not be letting them inside the business unmasked. You can offer online ordering and curbside pickup. You can have shoppers at the ready to make purchases on-call and bring them outside to the customers, or otherwise meet the customer outside to transact business. As long as your service is made “readily accessible” for someone with a disability, you’ve met your obligation under the ADA, and there are many ways to accomplish this without letting someone inside maskless.
The same applies to employees. Title I of the ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask causes an issue for someone with a disability, the solution is to offer that individual an accommodation. Maybe you segregate the employee so that he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than allowing them to work freely without a mask.
Secondly, the combination of numbers two, three, and four have me concerned if an employer is going to place compliance and enforcement responsibility on its employees.
For reasons that still befuddle and escape me, some people become hostile when told to wear a mask. Yet, your employees are not professionally trained in diffusing hostile situations. Don’t leave it up to your untrained employees to try to enforce these rules and potentially deal with escalating hostilities and violence. You wouldn’t send an amateur to defuse a bomb, lest you risk an explosion. This situation is no different. (It also might violate OSHA’s General Duty Clause.) Instead:
  1. Deploy trained personnel (ideally security, but at least someone at a management level) to enforce this mandatory mask rule and ensure 100 percent compliance within your business; and
  2. Train all other employees not to engage and instead to summon a designated responder.
This rule is long overdue. We all agree that masks are the number one thing we must do to slow the spread of COVID-19. Let’s mask up and all do our part.
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Florida minimum wage hike highlights need to get smarter on payroll compliance

wage and hour law compliance, wages

Florida Amendment 2, which was approved Nov. 3 by 60.8 percent of voters in the Sunshine State, will raise the minimum wage to $15 an hour by 2026. The Florida Policy Institute estimates that up to 2.5 million workers are now in line for higher wages. Per Florida Amendment 2, minimum wage will climb from $8.56 an hour to $10 an hour in September 2021 and then rise a dollar per year until 2026.

The 2020 election season also saw Joe Biden pledge to raise the minimum wage to $15 nationwide. Currently, the federal minimum wage is $7.25 an hour. As MarketWatch notes, Biden will likely face many hurdles to get this measure passed, especially if control of the Senate remains with the Republicans. 

Still, while no action has been taken yet on a national level, it’s something for organizations to keep in mind as more states — including California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey and New York — pledge to increase minimum wage in coming years. 

Florida’s passage of a statewide minimum wage increase to $15 may pose some challenges to business owners complying with the new law. One thing they don’t have to stress about is how well their workforce management system can handle the new requirement. 

Technology can help Florida employers as they maneuver the new minimum wage landscape. Smart workforce management software will take state and local laws into account so that compliance is as simple as possible.

Workforce.com ensures that managers have simplified and automated compliance to federal, state and local labor regulations, allowing them to avoid costly penalties. Workforce.com software also undergoes an audit regularly to make sure laws and regulations are up to date, meaning that managers can worry less about financials and compliance and more about creating a good schedule.

Don’t fall behind on compliance. Invest in employee scheduling software that simplifies compliance and payroll so that no matter what new regulations pass, your organization is prepared and confident. 

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Coronavirus Update 11-6-2020: Accountability

The NFL has fined the Las Vegas Raiders $500,000 and stripped them of a 2021 draft pick for “brazen and repeated violations” of the league’s COVID-19 protocols. The violations include repeated incidents of players and coaches not wearing masks and permitting players to attend a charity event maskless while mingling with the crowd. The fines and penalty came after repeated warnings (and prior fines) by the NFL.

If your business’s COVID-19 rules are to have any meaning, you need to be prepared to stand behind them with discipline and even termination if necessary. These are important safety rules that are absolutely necessary to beat back this virus, especially as cases are spiking and we are hitting record numbers on a daily basis.

Your employees must be held accountable for their COVID-19-related misconduct. If they aren’t wearing masks (or are wearing them improperly), congregating in groups, not maintaining appropriate physical distance, attending large gatherings, engaging in prohibited travel, coming to work sick, failing to report a positive test, failing to report an exposure to someone else who tested positive, or violating any other COVID-19 health and safety rule you need to be prepared to respond with discipline or termination (depending on the severity or repeat-nature of the violation).

Otherwise, why have these rules at all?

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OSHA levies $2 million in COVID-related citations and penalties

construction, mask, mobile technology, COVID-19

Are you tired of the endless din of vote counts and election news? Let’s get back to the uplifting topic of the ongoing COVID-19 pandemic.

OSHA recently announced a spate of COVID-related citations totaling $2,025,431 in fines.

What issues is OSHA seeing across employers?

  • Failing to implement a written respiratory protection program;
  • Failing to provide a medical evaluation, respirator fit test, training on the proper use of a respirator and personal protective equipment;
  • Failing to report an injury, illness or fatality;
  • Failing to record an injury or illness on OSHA recordkeeping forms; and
  • Failing to comply with the General Duty Clause
That last one is the OSHA/COVID kick in the you-know-whats. OSHA’s General Duty Clause requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It’s of vital importance during a pandemic because OSHA lacks any specific standards on infectious disease or viral prevention. For this reason, most employers’ COVID-related failures will be related to failures to meet their “general duty” to keep their employees safe.
What does this mean in practice? These steps, recommended by OSHA in its Guidance on PreparingWorkplaces for COVID-19, is a good starting point for OSHA COVID-19 compliance:
  1. Require workers to stay home if they are sick
  2. Follow CDC rules on isolation for those with COVID-19 and quarantine for those within close contact with those with COVID-19
  3. Inform and encourage employees to self-monitor for signs and symptoms of COVID-19 and report any that they have
  4. Mandate face masks or other facial coverings
  5. Establish rules that allow for six feet of physical distancing whenever practical, or install barriers when it is not
  6. Promote frequent and thorough hand washing
  7. Immediately isolate anyone symptomatic at work
  8. Prohibit the use of shared equipment
  9. Consider flexible work arrangements such as staggered shifts and schedules, and telecommuting
  10. Maintain regular housekeeping practices, including routine cleaning and disinfecting of surfaces, equipment, and other elements of the work environment
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If you care about the future of democracy, then we must count every single vote

coronavirus

As I type at 6:30 a.m. on the morning after, we still don’t know who won the presidency. There are nine states and 87 electoral votes undecided, and few of those states (Arizona, Wisconsin, Michigan, Georgia, and Pennsylvania) will ultimately determine the winner.

Yet, in the wee hours of the morning, Donald Trump took to a White House podium and stated his clear and unambiguous intent to go to the Supreme Court to stop the counting of outstanding votes, which he says is “a fraud on the American public.”

Let me make this as clear as possible. This is not about left/right, blue/ ed, or Biden/Trump. This is about the legitimacy and future of our democracy.
We need to make sure every vote that has been lawfully cast is counted. Otherwise, we will never know who legitimately wins this election. Whether it’s a Biden win or a Trump win, we need to know who actually wins. Otherwise, why have an election at all? If we can’t trust the results of our election as the will of our nation, why bother?
If you care about the future of our democracy and the future of our country, then we must count every single vote. Period. The fraud here isn’t in uncounted votes. The fraud is in not counting them at all and declaring a winner by disenfranchising millions of voters.
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Results — Would you boycott a business based on the candidate it supports?

employee activism

The results are. Thank you to the 244 of you took the time to answer my question: Would you boycott a business based on the candidate whom it (or, more accurately, its ownership) supports for President in this election?

The results:

Yes = 58.6%
No = 41.4%

The comments, however, are more interesting than the results themselves. Here’s a sample.

  • I would boycott a business that supports Trump because he is a racist and anyone (owner of a company included) who supports him signals, to me, that they are fine with racism.
  • I did it with Chik-fil-a because of their stance on LGBTQ so I would definitely do it if I knew they were supporting a racist / conspiracy theory promoting candidate.
  • This election is more than just politics- the candidates have different morals. I want to make sure where I work and who I work with have similar morals to myself.

vs.

  • I prefer to base my business selections on the quality of the products/services offered.
  • It’s time to calm the rhetoric. And that means if someone has a product or service I want, and they didn’t vote the way I liked, I should still buy the product/service. Why? Because that’s the only way to keep America working.

vs.

  • You can’t preach tolerance and then boycott people who don’t agree with you.
  • We need to be tolerant of others’ views- just basic civility. I’m a democrat and Biden supporter and I still feel this way.

vs.

  • This is the start of a slippery slope. First it is the candidate they support, then it is whether they like homosexuals, then it is whether they support abortions then it is whether they like Jews or Muslims or whatever, then it is whether they like whites, blacks or green people. This is how Hitler started.
  • I am tired of boycotts and cancel culture. This has gotten out of control.
  • That’s fascism.
Such a fascinating conversation that I’d never thought about approaching before this year’s election, which is as much (or more) about values than it is about candidates, issues, or ideologies.
I’ll leave you with this thought. No matter the candidate you support or lean towards (or against), please just vote!
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Coronavirus Update: Please stop telling me that we all just need to get on with living our lives

COVID-19, coronavirus, public health crisis

Earlier this week, I posed what I thought was a simple question on the private Facebook page of my community’s homeowners’ association: given the current rise of COVID-19 cases, should we, as a community, rethink our trick-or-treating plans. It was intended to start a generative discussion about whether we can host public trick-or-treating safely, but it quickly devolved into insults and name-calling.

The general theme of my pro-Halloween opponents was some combination of—if you don’t feel safe stay home in your basement; and we need to live our lives. People felt comfortable expressing this opinion even after others had commented about family members COVID-19 had killed.

People need to stop correlating COVID-19 safety measures with a restriction on their ability to “live their lives.” We are in the midst of a pandemic stemming from a highly contagious airborne virus. The pandemic is not getting better. In fact, it’s getting worse as we are just at the beginning of the second wave of this deadly virus. More than 220,000 Americans have died, and countless more have suffered the loss of a loved one, or are continuing to suffer the lasting and lingering effects of a virus that we still don’t fully understand. The numbers are getting worse (health experts use the ominous word deterioration), and we are in for a long and difficult winter as we battle COVID-19’s second wave.
You living your life is stopping me from living mine.
My family has been very cautious with this virus. For the first two months of “living with Covid” we stayed in our home. We had groceries delivered. We only met with people from outside of our home on Zoom. We did not even order takeout. Seven months later my wife and I are both still working from home full-time.
As we entered summer, however, we started to slowly branch out. I started going to the grocery store in person. We ordered takeout from our favorite restaurants. (I scratched some off the list after seeing employees not wearing masks.) Every now and then we started grabbing a glass of wine outside at our favorite local wine bar, have enjoyed a few nights of live outdoor music at the wine bar, have entertained family and friends outside on our deck in small groups, and, in August sent our children back to school. For us, this is living our lives.
Others views of living their lives is quite different. They have large parties, visit restaurants and bars, and attend huge social gatherings. Moreover, as COVID fatigue sets in after seven months of limitation and restriction, people are getting lazier with maintaining distancing and wearing masks.
In short, a lot of people aren’t doing the things we all need to do to battle back this deadly virus. And because of it, I’m being forced back deeper into my comfort zone, my bubble.
Maybe I’m resentful. People out “living their lives” may not get sick at all, and I’m being hyper-cautious and I or my family still might.
Or maybe I don’t understand the appearance of selfishness and callousness—that you care more about your own life than that of your fellow human beings. That it’s more important to you to host that large party at your home or fill your kid’s sack with bits of candy, than to ensure that you don’t spread a deadly virus around our community.
The reality is that we can still beat back this virus. Science is in agreement with the simple steps we need to take.
  1. Wear masks.
  2. Maintain physical distance.
  3. Wash your hands.
  4. Stay home if you’re sick.

These measures are not complicated. But I also understand that simple does not equate to easy. It’s going to be a long fall and winter, especially in climates like Ohio’s, where we will be forced indoors for several months. But if we continue to ignore basic health and safety measures, COVID-19 will continue to thrive, more people will get sick and die, and people “living their lives” will continue to either jeopardize mine or force me into full-time hermit mode.

So today I am imploring everyone to think about others in addition to thinking about yourselves. When this virus I over (and one day it will be over), I will not have any regrets over how I lived my life. Will you be able to say the same?
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New CDC guidance will result in A LOT more employee absences

software, compliance

Yesterday, the CDC made a key update to its COVID-19 guidance. It made a significant change to the definition of “close contact.”

No longer does one qualify as a “close contact” by being within 6 feet of someone for 15 continuous minutes or more.
The CDC now defines “close contact” as:
Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period (individual exposures added together over a 24-hour period) starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”

Factors to consider in determining whether one is a “close contact” include:

  • Proximity (closer distance likely increases exposure risk);
  • The duration of exposure (longer exposure time likely increases exposure risk);
  • Whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding);
  • If the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting); and
  • Other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors).
Most notably, under separate CDC guidance, this determination is made regardless of whether anyone was wearing a mask or other facial covering.
This change matters a lot. COVID-19 quarantine rules depend on whether one has been in close contact with someone who tested positive. The liberalization of this definition (which appears to have been based on anecdotal evidence of at least one infection) will result in more people meeting the definition of “close contact” and therefore having to quarantine for 14 days after an exposure to someone who tested positive.
This doesn’t just matter to exposures in your workplace. It also matters to employees’ activities out side of work, and to their children who are exposed at school. If the child has to quarantine for 14 days, guess who might need to be home with their quarantining child?
Make no mistake, this will create an attendance mess for employers, especially as COVID-19 numbers continue to briskly rise. Now is the time to double-down on the enforcement of physical distancing rules and measures at work. Six feet must mean six feet at all times.
  • Floors should be marked so that employees understand what six feet looks like.
  • Shifts should be staggered to allow for greater separation of employees, if needed.
  • Start- and end-times should be shifted to avoid bunching at time clocks.
  • Lunch and break rooms should be set up to avoid crowding and allow for distancing.
  • Bathrooms and elevators should have strict (and low) occupancy limits.

You can’t control with whom an employee or a family member comes in close contact outside of work, but you certainly can enforce measures at work to limit the possibility of close contact occurring there. Otherwise, you risk one positive COVID-19 case wiping out your business for two straight weeks.