Friday, April 16, 2021

Amazon Workers Vote Down Union Organization Attempt, But Is That The Last Word?

Author: Brian Woolley

Late last week, the National Labor Relations Board(“NLRB”) finished counting the ballots in a highly-publicized attempt by the Retail, Wholesale and Department Store Union to organize an Amazon distribution center in Alabama. The votes were mailed in over a six-week period, a process the NLRB has used to replace in-person voting since the outset of the COVID-19 pandemic. It took several days to count over 3,000 ballots, a count which resulted in a rejection of the union by more than a 2 to 1 margin. 

Friday, April 9, 2021

EEOC FY2020 Statistics Released: Data Shows Fewer Charges Were Filed While Monetary Recoveries Surged

Author: Jill Waldman

The Equal Employment Opportunity Commission (“EEOC”) recently released its enforcement and litigation statistics for FY2020. In summary, the EEOC’s data shows that there were 67,448 charges of discrimination filed in FY2020, which represents 5,227 fewer charges that were filed in FY2019. Of those charges, retaliation continues to be the most frequently cited claim -- accounting for 55.85 percent of all charges filed in FY2020. Disability and color discrimination claims increased marginally while genetic information claims doubled from the prior year. The remaining categories all saw marginal decreases. The following is a breakdown of claims filed in FY2020 (some charges allege multiple categories, which make the percentages add up to more than 100 percent):

Friday, March 26, 2021

More COVID-19 Leave Legislation on the Books in California – FAQ

Author: Tammy Somogye

Here we go again… California has passed new legislation (Senate Bill 95) requiring a larger group of employers to provide paid leave for many more COVID-19-related reasons than previously allowed.

Q: Who must provide the SB 95 leave?

A: California employers (including public entities) with more than 25 employees nationally.

Q. Who is eligible for the SB 95 leave?

A. “Covered employees” is defined as California-based employees who are unable to work or telework for one of the qualifying reasons.[1]


Q. What reasons qualify for the SB 95 leave?
A. There are more qualifying reasons than required by previous legislation. Covered employees may take paid leave if they are unable to work or telework due to any of the following reasons:

Friday, March 19, 2021

New Dates for 2019 and 2020 EEO-1 Report Submissions

Author: Jack Rowe 

An EEO-1 Report must be submitted by all private sector employers with at least 100 employees, or federal contractors with 50 or more employees. This submission has been required for over a half century. Because of the pandemic, the due dates for the submission of the 2019 and 2020 EEO-1 Reports were suspended by the EEOC until March 31, 2021.

Earlier this year the EEOC announced that the EEOC’s collection site for the submission (the EEOC On Line Filing System) will open in April 2021 for an eligible employer’s submission of both the 2019 and 2020 EEO-1 Component 1 workforce demographics data. The precise date of the opening will be set by the EEOC by early April and will be found at the EEOC’s website (, and all eligible employer filers will also receive a notification letter

Friday, March 12, 2021

A Bajillion Dollars – What’s in it for Me (and my Employees)?!

Author: Bridget Romero

On Thursday, March 11, 2021, President Biden signed an historic $1.9 Trillion COVID-19 Relief Package known as the American Rescue Plan Act. You may be (rightfully) thinking, “wow, that’s a lot of money, what’s in it for me?!” In fact, many Americans will receive direct stimulus checks aimed at helping to offset widespread economic strain caused by the pandemic. Whether you use the money to pay overdue bills or towards a new car is up to you, and either way the economy will theoretically be improved. In addition to the personal funds the federal government is sending to millions of households, the stimulus package contains three provisions impacting employers and employees: 

1. Additional Extension of FFCRA Tax Credits

As you likely recall, The Families First Coronavirus Response Act (FFCRA) provided workers with COVID-19 related sick leave benefits (and employers with a corresponding tax credit), which expired on December 31, 2020. Although employers are no longer obligated to offer such leave, a prior stimulus package extended the tax credits for employers that voluntarily continued to offer the paid leave through March 31, 2021. The American Rescue Plan Act now extends those tax credits yet again, this time through September 30, 2021. Meaning, while providing employees with COVID-19 related sick leave is still not mandatory for employers, the dollar-for-dollar payroll tax credit incentive to do so voluntarily has been extended until the Fall. New with this stimulus package is the expansion of leave for which tax credits are permitted, to include for example, time off to obtain a COVID vaccine.

2. Extended Unemployment Benefits; Tax Break on Benefits Received in 2020

The relief package extends the federal enhancement of $300/week in unemployment benefits through Labor Day (September 6, 2021). As with a prior stimulus package, self-employed and “gig economy” workers will continue to be covered. And, added late in Congressional negotiations is a tax break provision likely to be of great interest to employees earning less than $150,000 per year. For those individuals, the first $10,200 received in unemployment benefits in 2020 will be free of federal income tax in 2021.

3. COBRA Subsidy

As we all know, terminated employees often forego electing COBRA coverage because it is cost prohibitive. That’s likely about to change. The relief package contains a provision which is new to the panoply of assistance measures our government has offered over the last year, and we expect it will be highly utilized by terminated employees (yet likely difficult to manage administratively for employers). In essence, a government subsidy will cover 100% of the premiums for any laid off employees who are eligible for continuing health coverage under COBRA for a six-month period beginning April 1, 2021 and ending September 30, 2021. The subsidy is not available for employees who voluntarily end employment. As a practical matter, employers will receive the subsidy and then “pass it along” to COBRA enrollees through a payroll tax credit against the employers’ quarterly taxes. Stay tuned for more details we expect to be forthcoming from the government on how exactly to implement the subsidy.

All in all, while nobody it getting a bajillion dollars, this latest behemoth of a stimulus package is sure to create lots of activity in both our personal and professional lives.

Friday, March 5, 2021

Despite a Contract Disclaimer, Could Parts of Your Employee Handbook Be Legally Binding?

Author: Neil Goldsmith

By now, we are all familiar with the routine employee handbook disclaimer: 

This Handbook is provided for informational purposes only and is not a contract between the Company and any employee. 

Even with such a disclaimer in place, though, employers should be thoughtful when drafting and implementing detailed policies, particularly wage-related policies, as highlighted by a recent case out of Minnesota. In Minnesota, courts have often refused to construe an employee handbook as a contract when it contains a conspicuous contract disclaimer. In Hall v. City of Plainview, though, the Minnesota Supreme Court recently held that a disclaimer in an employee handbook did not preclude a breach of contract claim over a Paid Time Off (PTO) policy within a handbook.

Friday, February 19, 2021

Biden Administration Halts Trump-Era Independent Contractor Rule

Author: Caitlin Gehlen

As we predicted in a blog post earlier this year, the Biden administration has placed a 60-day hold on the U.S. Department of Labor’s (“DOL”) final rule on determining when a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”) which was expected to take effect March 8, 2021. The Biden Administration issued a memorandum to various executive agencies, including the DOL, asking that they: (1) not propose or issue any rules until a department or agency head appointed or designated by the Biden Administration reviews and approves the rule; (2) withdraw any rules previously sent to the Office of the Federal Register for publication that have not yet been published; and (3) consider postponing the effective date of any published rules that have not yet taken effect by sixty days.

This development effectively means that employers are still subject to the FLSA contractor test used prior to the DOL’s Trump-era final rule. Under that test, multiple factors need to be assessed when considering whether a worker qualifies as an independent contractor, including:
  1. The extent to which the services rendered by the worker are an integral part of the employer's business.
  2. The permanency of the relationship.
  3. The amount of the worker’s investment in facilities and equipment.
  4. The nature and degree of control by the employer.
  5. The worker’s opportunities for profit and loss.
  6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the worker.
  7. The degree of independent business organization and operation.
We can, however, theorize how the Biden Administration will move forward on the independent contractor issue. While not certain, we predict that the Biden Administration will ask the DOL to revisit the Trump-era final rule and shift course. President Biden has previously expressed support for a nationwide “ABC” test, which employers in some states such as California, Illinois and New Jersey already use. The “ABC” Test, if adopted by the DOL, would make it much harder to classify workers as independent contractors under the FLSA. For example, under California's version of the more-stringent test, all three of the following factors must be met for a worker to be considered an independent contractor:
  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. The worker performs tasks that are outside the usual course of the hiring entity's business.
  3. The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.
Moving towards a nationwide “ABC” Test would be a significant shift for numerous employers and would likely require a review of existing independent contractor arrangements to ensure compliance. Alternatively, the DOL might leave in place the current pre-Trump administration rule or adopt some other approach.

We will continue to monitor any legislative or executive changes on the classification front and update accordingly.