Beginning July 27, 2020, Virginia will become one of the first states to implement comprehensive, mandatory safety regulations for employees returning to work during and post-COVID.  In a press release last week, Governor Ralph Northam announced that the Virginia Safety and Health Codes Board had voted to adopt an emergency temporary standard, §16VAC25-220, which is designed to “control, prevent, and mitigate the spread of” COVID-19.…

Most employers wrestling with COVID-19 related employment law issues aren’t paying much attention to the labor law issues arising out of the pandemic.  Indeed, because most U.S. employers are non-union, many operate under the mistaken belief that they fall outside the reach of the National Labor Relations Act (Act or NLRA) and don’t have to concern themselves with labor law compliance.  However, the NLRA protects almost all private sector employees regardless of whether they are union-represented or not.  Accordingly, except for those employing agricultural employees or workers covered by the Railway Labor Act, both unionized and union-free employers are subject…

Last August, we wrote about three important new rules that the National Labor Relations Board (Board or NLRB) was proposing to issue.  As proposed, the new rules reversed existing Board case handling practices and/or case law and essentially codified certain substantive changes in the Board’s law through the formal rulemaking process.  Because these changes were slated to be the subject of formal rulemaking, once enacted, they could neither be ignored by the Board nor reversed or modified in future Board case decisions.  Rather, in order to change or reverse them, the Agency would be required to go through the…

Last August, we wrote about three important new rules that the National Labor Relations Board (Board or NLRB) was proposing to issue.  As proposed, the new rules reversed existing Board case handling practices and/or case law and essentially codified certain substantive changes in the Board’s law through the formal rulemaking process.  Because these changes were slated to be the subject of formal rulemaking, once enacted, they could neither be ignored by the Board nor reversed or modified in future Board case decisions.  Rather, in order to change or reverse them, the Agency would be required to go through the…

Important Upcoming Registration Deadline:  California employers with more than 100 employees are required to register (or certify as exempt) with the CalSavers Retirement Savings Program (CalSavers) by September 30, 2020 (the original deadline of June 30, 2020 was extended due to the COVID-19 pandemic).  The registration deadline for California employers with 100 employees or fewer will be phased-in over the next two years.  California employers with 51 to 100 employees are required to register by June 30, 2021, and those with 5 to 50 employees are required to register by June 30, 2022.  Businesses located in California may begin to…

On July 3, 2020, San Francisco enacted a temporary emergency ordinance requiring businesses with more than 100 employees to offer reemployment to employees laid off due to the COVID-19 pandemic.  Known as the “Back to Work” emergency ordinance and aimed at mitigating the severe economic harm to individuals who have been unable to work due to the public health emergency caused by COVID-19, this enactment creates a right to reemployment for eligible laid-off workers if their prior covered employer resumes business operations and/or seeks to re-staff.  According to its terms, this statute will remain in effect for only…

On July 6, and after consulting with the Board’s Regional Directors (“RDs”) and other of the Agency’s internal stakeholders, the NLRB’s General Counsel (GC) issued Memorandum GC 20-10 offering suggested protocols for the RDs to follow as a way of returning to manual elections in light of the ongoing pandemic.  Before COVID-19, the overwhelming majority of National Labor Relations Board-conducted representation elections were done manually.  Board agents typically came to an employer’s place of business, set up a voting booth and employees were allowed to vote en masse on whether or not they wished to be represented by a union…

On June 23, the National Labor Relations Board’s (Board or NLRB) issued a decision in Mountaire Farms, Inc., 5-RD-256888 in which the Board granted review of a Regional Director’s decision applying the Board’s contract bar doctrine, finding that the case presented substantial issues warranting the NLRB’s review and announcing its intention to establish a schedule for the filing of briefs on review and inviting amicus briefs.  On July 7, the Board acted on that intention and issued a Notice and Invitation To File Briefs in the case (Notice).…

On July 8, 2020, the Supreme Court gave religious employers wide leeway to hire and fire employees whose duties include religious instruction without having to worry about employment discrimination suits. In a 7-to-2 decision, the Supreme Court ruled in Our Lady of Guadalupe School v. Morrissey-Berru that the “ministerial exception” – a legal doctrine that shields religious employers from anti-discrimination lawsuits – foreclosed the adjudication of two discrimination lawsuits brought by Catholic school teachers.…

On July 2, 2020, the federal Occupational Safety and Health Administration (“OSHA”) published an FAQ web page based on COVID-19 related inquiries that the agency received from the public.  The FAQ page provides a central location for information and links on a variety of topics related to best practices to ensure worker safety and protect workers’ rights during the ongoing pandemic.  Although the majority of the guidance contained in OSHA’s responses is not new, employers should review the FAQ page to ensure their health and safety policies and procedures follow OSHA’s recommendations.  This article lists the topics covered by the…

On July 1, 2020, as a result of rapid increases in the number of COVID-19 cases throughout California, and on the heels of the Fourth of July long weekend, Governor Gavin Newsom instructed businesses in 19 counties across the state to roll back their reopenings for at least the next three weeks.  The Governor’s instructions require the closure of: All indoor, in-person dining at restaurants (outdoor dining and takeout are still permitted, so long as social distancing protocols are followed); Indoor tasting rooms and wineries; Indoor museums, zoos, and aquariums; Indoor movie theaters and family entertainment centers; and Cardrooms and…

On June 18, 2020, the First Department issued Hosking v. Memorial Sloan-Kettering Cancer Ctr., 2020 N.Y. Slip Op. 03484 (1st Dept. June 18, 2020), a decision analyzing the more stringent requirements under the New York City Human Rights Law (“NYCHRL”) for employers to reasonably accommodate individuals with disabilities, compared to the requirements under the New York State Human Rights Law (“NYSHRL”) and the Americans with Disabilities Act (“ADA”). In Hosking, the First Department determined that plaintiff’s disability discrimination claims under the NYSHRL and NYCHRL properly survived summary judgment as issues of fact were raised about whether the defendant sufficiently…