U.S. Department of Labor Issues Final Rule on Independent Contractor Status

Author: Dorrie Larison

On January 7, 2021, the U.S. Department of Labor (DOL) published its final rule (“Final Rule”) setting new standards for determining when a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule takes effect sixty days from its publication in the Federal Register and is, therefore, scheduled to take effect on March 8, 2021. The DOL notes that the Final Rule reaffirms the “economic reality” test; however, the new test changes the analysis to be used when applying the test.

COVID-19 Vaccinations and the Workplace: What You Need to Know Right Now

Author: Dion Farganis

With two COVID-19 vaccines already authorized for emergency use in the United States and more likely forthcoming soon, employers are asking whether they can — and should — require employees to get vaccinated. This alert identifies some of the major issues that employers are likely to face when rolling out policies related to vaccinations. 

Can Employers Require Employees to Get Vaccinated?

Recently released guidance from the federal Equal Employment Opportunity Commission (EEOC) strongly suggests that employers can require employees to get vaccinated. Although the guidance does not explicitly state that employer-mandated vaccinations are lawful, it addresses a range of issues confronting employers who have adopted a vaccination requirement policy. This suggests that the EEOC presumes mandatory vaccination policies can be lawful if administered properly.

Back to the Salt Mine: Executives’ Social Media and the NLRA

Author: Elizabeth Duff Mendoza

The National Labor Relations Board (NLRB) recently affirmed the decision of an administrative law judge that FDRLST Media, LLC (“FDRLST”) violated the National Labor Relations Act in June of 2019 when Ben Domenech, publisher of the Federalist, published the following tweet on his personal Twitter handle: “FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine.” Domenech’s tweet was posted in response to the news of Vox Media Inc. employees walking off the job after demanding a new collective bargaining agreement. FDRLST contended that Domenech’s tweet was clearly intended as a joke and submitted affidavits from Federalist employees attesting that they viewed it as such. FDRLST further argued that the tweet was posted from Domenech’s private Twitter handle and was not a communication on behalf of FDRLST, that the individual who filed the complaint was not even a FDRLST employee and that a reasonable FDRLST employee would not take Domenech’s tweet as a threat of reprisal with loss of employment or other benefits.

OSHA Citations Reinforce Need to Stay Vigilant With Worker Safety

Author: Tammy Somogye

With COVID-19 cases surging, employers should take the time to review the federal Occupational Safety & Health Administration’s recent guidance document, which was generated based on a review of “data from citations issued, many of which were the result of complaints, referrals and fatalities in industries such as hospitals and healthcare, nursing homes and long-term care facilities, and meat/poultry processing plants.” OSHA News Release (11/7/2020).

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.