National Labor Relations Board Gives Stamp of Approval to Mail Ballot Elections

Author: Brian Woolley

Prior to COVID-19, virtually all union representation elections were conducted through in-person voting, often at the workplace. In mid-April, however, the federal National Labor Relations Board (“NLRB”) empowered its Regional Directors to exercise their discretion to order mail ballot elections when circumstances warrant. Since then, virtually all such elections have been conducted by mail because of the pandemic. Many of these decisions were challenged, generally by employers arguing that in-person voting can be conducted safely, but those objections have not been successful. 

Guidance for Workplace Holiday Gatherings

Author: Jill Waldman 

With the holidays fast approaching and employers beginning to think about their employee holiday gatherings, the Centers for Disease Control (“CDC”) recently issued updated holiday guidance amid the COVID-19 pandemic. While the guidance is not targeted specifically to the workplace, it provides employers insight into the various factors they should consider when planning and hosting in-person company-sponsored events, which include the following:

• Check the COVID-19 infection rates in your area, which can be accomplished by consulting the applicable state and local health department websites. Based on the current status of the pandemic, consideration should be given as to whether it is safe to hold an in-person event. Given the surge in COVID-19 cases across the country, the CDC has noted that virtual gatherings are the safest and healthiest options for this year.

OSHA Updates Guidance on Reporting Work-Related Cases of the Coronavirus

Author: Beckie Yocum

The federal Occupational Safety and Health Administration (OSHA) recently published additional frequently asked questions and answers (FAQs) regarding the need to report employees’ in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus. These FAQs reverse OSHA’s previously issued guidance that, for cases of COVID-19, the work-related incident triggering reporting requirements was the employee’s positive diagnosis. Now, the triggering event is the employee’s exposure to the coronavirus at work.

Is Your Diversity & Inclusion Training Program in Peril?

Author: Bridget Romero

Many employers have implemented Diversity & Inclusion (“D&I”) programs over the last few years, often including training on topics such as implicit or unconscious bias. For some employers, those efforts may now be in peril. On September 22, 2020, the White House issued Executive Order 13950 entitled “On Combating Race and Sex Stereotyping” (“EO 13950 ” or “order”). The order’s stated purpose is “to combat offensive and anti-American race and sex stereotyping and scapegoating.” Private employers are not covered by EO 13950, but federal contractors and subcontractors (and recipients of federal grant monies) are prohibited from promoting “divisiveness” by using any workplace training that “inculcates in its employees any form of race or sex stereotyping or [ ] scapegoating.” According to the order, the following specific concepts are considered “divisive” and are therefore prohibited in workplace trainings:

• one race or sex is inherently superior to another race or sex;
• an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
• an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
• members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
• an individual’s moral character is necessarily determined by his or her race or sex;
• an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
• any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex; or
• meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
  
  

The Value of Unconscious Bias Training

Author: Rosalee McNamara

Whether we realize it or not, we all have unconscious biases - even scientists who are trained to overcome them. Events of the last year have riveted our attention not only on a global pandemic, but also on race relations. Addressing this topic is important to us all - in our businesses and beyond. Unconscious bias training helps us understand why we harbor biases, how to avoid bad decision-making associated with those biases and how to promote greater inclusivity. 

The problem with unconscious biases is we don't see them. As Henry Thoreau said, "Many an object is not seen, though it falls within the range of our visual ray, because it does not come within the range of our intellectual ray, i.e. we are not looking for it. So, in the largest sense, we find only the world we look for."

EEOC Updates Guidance on COVID-19 and Anti-Discrimination Laws

Author: Emily Mawer

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Many of the updates to the guidance document are consistent with the EEOC’s March webinar on COVID-19, but the updates also provide additional clarifying information regarding the Americans with Disabilities Act (“ADA”) and COVID-19 screening. The ADA continues to apply during the COVID-19 pandemic and requires that any employment disability-related inquiries or medical exams, including COVID-19 related inquiries and testing, be job related and consistent with business necessity. The EEOC guidance states, however, that the ADA does not prevent employers from following recommendations from the CDC or other public health authorities.

Preventing Wage and Hour Claims: Step One – Are You Paying for All Hours Worked?

Author: Dorrie Larison

A basic tenant of the Fair Labor Standards Act (FLSA) is that employers are required to pay their non-exempt employees for all hours worked. While this seems simple enough, sometimes employees do not record all of their work time. Under the FLSA, employers must pay for time worked if they know or have reason to believe that the work was performed. In other words, employers have a duty to make sure that work is not performed when they do not want it to be performed. Recently, in light of the pandemic, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) highlighting the requirement to track and pay for all hours worked by employees working remotely.