Labor & Employment Law Blog

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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…
The summer season is normally a time the children are off to summer camps, enrichment programs, or summer school sessions.  This year, however, employees are finding themselves without available childcare in the wake of continued widespread COVID-19-related closures.  As state and local governments vacillate between easing and increasing restrictions, normal summer programs may be unavailable, or if open, may be operating at significantly reduced capacities.…
Court Decision On June 18, 2020, the U.S. Supreme Court ruled that the U.S. Department of Homeland Security (DHS) decision in 2017 to rescind the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative Procedures Act (APA) because it was implemented without the required Notice and Comment and without publication of a final rule that articulates the reasonable basis for the agency’s actions.  As such, the Court ruled that DHS’s action was arbitrary and capricious.…
On June 17, 2020, the federal Occupational Safety and Health Administration (“OSHA”) issued its “Guidance on Returning to Work.”  This new guidance is intended to supplement the previous “Guidance on Preparing Workplaces for COVID-19” that OSHA published in March.  Most non-essential businesses throughout the country have already reopened and returned at least some portion of their workforce to the workplace.  However, with the risk of occupational exposure to COVID-19 still present, employers must continue to monitor and follow new and evolving federal, state, and local guidance aimed at protecting the safety and health of employees.  OSHA’s…
Presidential Proclamation On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories.…
As we previously discussed earlier this month, District Court Judge Ketanji Brown Jackson issued an Order in American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board, Civil Case No. 2020-0675, invalidating five of the National Labor Relations Board’s (NLRB or Board) soon-to-be implemented new elections rules (2019 rules).  Issued in haste on May 30 to head off the Board’s May 31 implementation of the new rules, Judge Jackson’s Order offered little explanation for her decision except to say that she found each of the challenged new election procedure rules unlawful and set them aside because…
On June 17, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) issued new guidance to employers forbidding the administration of COVID-19 antibody tests under the Americans with Disabilities Act (“ADA”). EEOC COVID-19 Technical Assistance A.7. Though the ADA mainly protects disabled individuals from workplace and public discrimination, some parts of the Act apply universally. One such section prohibits employers from compelling workers to submit to medical examinations that are not “job-related and consistent with business necessity.” 29 CFR § 1630.14(c).…
On June 10, the National Labor Relations Board (NLRB or Board) issued Bethany College, 369 NLRB No. 98, in which it held that it does not have jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions.  Bona fide religious educational institutions are those who (1) hold themselves out to students, faculty and the community as providing a religious educational environment; (2) are nonprofit organizations; and (3) are affiliated with, or owned, operated or controlled by a recognized religious organization or with an entity, membership of which is determined, at least in part, with reference to…
At the beginning of this year, New Jersey Governor Phil Murphy signed a package of legislation aimed at protecting the rights of workers who have been misclassified as independent contractors.  One of these new laws, Assembly Bill 5843, requires employers to post notices regarding employee misclassification.  The New Jersey Department of Labor and Workforce Development has now published the required posting in two different sizes (11 x 17 and 8.5 x 11).…
Our proximity and “close contact” with other humans is on the front lines in the war against coronavirus.  Yet tracking 6 feet of distance from every human we encounter for a 14 day period is nearly impossible without the help of technology like contact-tracing apps.  Although many privacy and employment laws designed to protect employee rights have been temporarily relaxed during the pandemic, employers must consider and resolve employee privacy issues created by contact-tracing apps.  As businesses forge roadmaps to reopen, these apps offer innovative solutions to meet legal requirements imposed by OSHA and Centers for Disease Control.…
Last December, we addressed the National Labor Relations Board’s (NLRB or Board) new rules applicable to all NLRB-conducted elections.  As then reported, these new rules partially reversed election rules implemented in 2014 and were designed to address many of the concerns raised by the Board’s 2014 rules changes.  Specifically, the Trump Board has repeatedly expressed concern that the timeframe prior to a pre-election hearing was too truncated to allow the parties to adequately prepare for hearing and meet their many regulatory obligations.  Originally scheduled to take effect April 16, 2020, implementation was later postponed and rescheduled to take effect on…
On Wednesday, May 27, 2020, the Centers for Disease Control and Prevention (“CDC”) issued new guidance (available here) detailing how employers can safely reopen offices following months of closure amid the ongoing COVID-19 pandemic. The CDC guidance provides a step-by-step checklist for employers to follow to ensure that their office spaces are physically prepared for workers to return to work as they proceed with life beyond the pandemic. When employees do return, offices are going to look a lot different from when they left. The CDC recommendations range from technical advice on ventilation systems to the abolition of the…
The COVID-19 pandemic has highlighted the central role local and long haul trucking companies and drivers play in the overall U.S. economy and specifically our public health infrastructure.  Now, as states and businesses around the country gradually reopen and truck deliveries begin to ramp up, employers in the commercial trucking industry should be aware of recent changes to Hours of Service regulations as well as COVID-19-related guidance on keeping employees and the general public healthy and safe.  By updating their policies and procedures and enacting responsible safety measures, motor carriers will be in the best position to weather the storm…