Information and guidance on every phase of employment
Q. How will the federal court decision impact business policies and practices that address FFCRA leave?
A. On August 3, 2020, the U.S. District Court for the Southern District of New York struck down four parts of the regulations issued by the U.S. Department of Labor (DOL) implementing the Families First Coronavirus Response Act (FFCRA). As a result of the decision: Continue Reading Federal Court Decision Changes How Employers Must Implement Families First Coronavirus Response Act
Q. Have there been any changes to the CDC Guidance on testing?
A. Until late July, the CDC offered a test-based or symptom-based strategy to govern the timing of “discontinuing isolation” for a person known or suspected to be infected with COVID-19. In an abrupt change in guidance, the CDC announced a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. The CDC now recommends following only a modified symptom-based strategy, which means: Continue Reading COVID-19 Testing No Longer Generally Recommended for Discontinuing Isolation, CDC Says
Troutman Sanders and Pepper Hamilton officially became Troutman Pepper (Troutman Pepper Hamilton Sanders LLP), a national law firm of 1,100 attorneys in 23 U.S. offices. Our new firm offers clients greater resources and bench strength, enhanced practices, and expanded geographical reach.
We are now one of the 50 largest law firms in the country, with offices in eight of the 10 largest U.S. markets. Our attorneys support some of the country’s biggest industry sectors, including health sciences, energy, real estate, insurance, finance, private equity, construction, and technology.
While we have grown, our mission remains the same: to provide a higher commitment to client care. The merger brings expanded capabilities to our Labor and Employment and Employee Benefits and Executive Compensation teams, which now include 50 attorneys in 11 offices across the country, and we are excited for our clients to experience the increased benefits and services.
Please continue to follow our HiringToFiring.Law blog to receive the latest news, analysis and commentary on your industry. You can read more about Troutman Pepper and our hallmark focus on client care.
Q. I understand that the United States Supreme Court came out with a new decision extending Title VII protections. What are the details?
A. Delivering a historic victory for the LGBTQ community, the U.S. Supreme Court issued a 6-3 landmark decision on June 15, ruling that Title VII of the Civil Rights Act of 1964 prohibits terminating an employee based on the employee’s gender identity or sexual orientation. In Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), the Court held “that employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Justice Neil Gorsuch wrote the majority opinion, in which Chief Justice Roberts and the four liberal justices joined. Justice Alito wrote a 107-page dissent, in which Justice Thomas joined, and Justice Kavanaugh dissented separately. Continue Reading Supreme Court Rules Title VII Protects Gay and Transgender Employees
Q. What is the standard for determining whether an individual is an independent contractor under Pennsylvania’s unemployment compensation law?
A. Following a recent decision from the Pennsylvania Supreme Court, businesses now face a tougher standard under the state’s unemployment compensation law for demonstrating that a worker is an independent contractor and not an employee. In A Special Touch v. Commonwealth of PA, the Court held that, to claim the exemption from tax liability for a self-employed worker, the employer must show that the individual in question is involved in an independent trade or business “in actuality,” rather than “having the mere ability to be so involved.” Continue Reading Pennsylvania Supreme Court Clarifies Independent Contractor Standard For Purposes of Unemployment Compensation Taxes
Q. What is the new deadline to file an EEO-1 report?
A. The Equal Employment Opportunity Commission (EEOC) announced in a press release on May 7, 2020 that it will postpone its annual collection of EEO-1 demographic data until 2021, in light of the circumstances surrounding the novel coronavirus outbreak. This comes at a time when many employers were already waiting for a determination as to when the EEOC would begin collecting reports from 2019. Continue Reading EEOC Delays EEO-1 Data Reporting Deadline to 2021 Due to COVID-19
On Wednesday, April 15, Pennsylvania Governor Tom Wolf, in conjunction with the state’s Department of Health, announced an Order requiring businesses to implement new safety measures in response to the coronavirus pandemic. The Order details a litany of new “social distancing, mitigation, and cleaning protocols” that businesses must observe with respect to both employees and customers. Effective immediately, the Order applies to “life-sustaining businesses” authorized to maintain operations during the crisis under a prior order issued in March, including grocery stores and pharmacies. The Governor has directed a number of state agencies to enforce the new requirements, including the Department of Labor & Industry, the Department of Health, and the Pennsylvania State Police. Continue Reading Employers Should Act Now in Response to New Order from the Pennsylvania Department of Health
Q: My Company’s standard employment settlement agreement includes a no-rehire provision. Can I continue to include that provision for California employees?
A: If the agreement settles an employment dispute with an “aggrieved person,” you may no longer include a no re-hire provision in the agreement for California employees. Assembly Bill No. 749 (“AB 749”), which amends the California Code of Civil Procedure, became effective January 1, 2020 and provides that if an unlawful no-rehire provision is included in a settlement agreement, the provision is void as a matter of law. An “aggrieved person” is defined as a person who has filed a claim against the employer in court, before an administrative agency, in an alternative dispute forum, or through the employer’s internal complaint process. Continue Reading California Now Prohibits No-Rehire Provisions in Certain Employee Settlement Agreements
Q. What should my company be doing to prepare for the spread of the coronavirus?
A. With the number of coronavirus cases topping 90,000 worldwide, resulting in more than 3,000 deaths across 65 countries, it is only a matter of time before the disease has some impact on normal business operations. However, as the virus continues its march around the globe, there are certain actions companies can take today to mitigate potential disruptions and calm employee nerves.
Communication is key. Employees want concrete answers to questions about employer expectations in the event that the crisis reaches their door. If you haven’t done so already, it would be helpful to issue a policy with, at a minimum, some common sense advice about handwashing, coughing and sneezing etiquette, and sanitizing common areas. Employees should be told to leave work and stay home if they have respiratory symptoms or a fever and companies should communicate this directive to staffing agencies that supply the workplace with temporary or contract workers. Consider placing hand sanitizers in strategic locations and suggesting that employees avoid handshakes.
In addition, employers should ensure that their policies on sick leave are compliant with federal, state and local leave laws. Companies should review these policies with workers so that employees are aware of the consequences, if any, if they are unable to come to work due to their own illness or if they are needed to tend to a sick family member. Companies also need to make sure the appropriate personnel are aware of their obligations to maintain confidentiality under the Americans With Disabilities Act with regard to employees who are sick while working with public health officials to notify employees who may have been exposed to the virus.
There may come a time when the virus reduces the ability of even healthy employees to get to work if, for example, schools and public transportation are impacted. Employers should consider and communicate whether and which employees are permitted to work from home under such circumstances and ensure that employees have the tools they need to telecommute. Companies also should set expectations around such work-from-home arrangements and communicate whether they plan to pay workers who are not able to perform their jobs remotely. In that regard, employers need to keep in mind the rules regarding pay for exempt and non-exempt workers.
In terms of business continuity, employers will want to cross-train employees to perform critical job functions in the event that certain staff members fall ill. Companies with multiple facilities also will want to cross-train individuals to take over key business functions in the event that one location is impacted more severely than others. Employers also should have a plan in place to identify alternative sources of supply and services required to maintain business operations in the event of increased absenteeism, supply chain interruptions and shortages of raw materials.
Employers also should consider implementing rules around travel, both business and personal. Some companies already have replaced meetings with videoconferences and advised employees to avoid nonessential business travel to high risk areas. Make sure that employees know that they should notify a supervisor or human resources if they become sick while traveling. With spring break fast approaching, some employees may be planning trips domestically and abroad. Many companies are asking employees to disclose their travel plans and imposing a 14-day ban on entering the workplace after an employee has traveled to a high-risk region.
Preparation rather than panic should be your company motto. Thinking through these important issues and memorializing them in a written disease outbreak response plan will help companies protect their workplaces and ensure continuity of operations to the greatest extent possible.
For assistance in drafting a disease response plan, please contact us.
– Tracey E. Diamond
Q. I heard that job postings which impose a maximum experience requirement for external applicants may not violate certain provisions of the ADEA, at least in certain Circuits. Is that true?
A. The United States Supreme Court recently declined to review an en banc Seventh Circuit decision in Kleber v. CareFusion Corporation, which ruled that the Age Discrimination in Employment Act (“ADEA”) does not apply to external job applicants who allege that a neutral hiring policy adversely impacted older workers.
Dale Kleber, then 58 years old, applied for an in-house Senior Counsel position in CareFusion’s legal department. The job description provided that applicants must have “3 to 7 years (no more than 7 years) of relevant legal experience.” At the time, Kleber had accrued more than seven years of relevant experience. The company ultimately did not offer Kleber the job and instead hired a 29-year-old applicant who met but did not exceed the job description’s experience requirement. Kleber filed a lawsuit against CareFusion under the ADEA, which prohibits discrimination against those age 40 or older. One of his main arguments was that, although the company’s maximum experience requirement may have appeared neutral on its face, such requirement had a disparate impact on him as an older attorney.
The Seventh Circuit held that the disparate impact provision of the ADEA only applies to “employees,” and not outside job applicants seeking employment such as Kleber. Section 4(a)(2) of the ADEA, which applies to disparate impact claims, makes it unlawful for an employer “to limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” The court found that the plain language of this provision only protects those who have a “status as an employee,” and that Kleber did not have such status, since he was an outside applicant. The court also contrasted the disparate impact section with other portions of the ADEA which expressly cover both employees and job applicants, such as the provision which guides disparate treatment claims (i.e. a company intentionally refusing to hire an applicant because of his or her age). A final issue that the Seventh Circuit addressed was whether the ADEA’s text was similar enough to the text of Title VII that it should follow the same interpretation, as Title VII permits applicants to bring disparate impact claims. The court found that the two statutes are distinguishable.
Given the Supreme Court’s decision declining review, the Seventh Circuit’s ruling continues to remain enforceable and provides employers, at least in Indiana, Illinois and Wisconsin, with a sufficient defense to external applicants’ disparate impact claims under the ADEA. The Eleventh Circuit, which covers Alabama, Florida and Georgia, also has ruled in a manner consistent with the Seventh Circuit, refusing to extend the ADEA’s language on disparate impact to outside applicants. No other Circuit has addressed this issue yet.
One note: While employers may be able to successfully escape ADEA disparate impact claims from outside applicants, state and local anti-discrimination laws may extend to protections for outside applicants. In addition, the decisions of the Seventh and Eleventh Circuits have no effect on ADEA disparate impact claims brought by internal applicants already employed within the company. Furthermore, both internal and external job applicants remain protected under the disparate treatment sections of the ADEA. The Seventh and Eleventh Circuit decisions are therefore limited in nature, and employers across the country should continue to regularly monitor their job postings and hiring practices to comply with federal and state anti-discrimination laws.
