CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Employment Law Blog (US)’ Category

READY TO RE-OPEN? Be Aware of California’s New Right-of-Recall Law and Implications for Employers in the Hospitality, Event Center, Airport, Private Club, and Commercial Property Service Industries

Posted on: June 22nd, 2021

By: Mandy Hexom

On April 16, 2021, Governor Newson signed into law a right to notice and recall of certain employees in the hospitality, event center, airport, private club, and commercial property service industries who were laid off due to the effects of the COVID-19 pandemic. This new law is set forth in California Labor Code Section 2810.8, which became effective immediately and does not expire until December 31, 2024.

What businesses or employers must comply?

  1. Hotel Employers
  2. Event Center Employers
  3. Airport Service Providers
  4. Airport Hospitality Employers
  5. Private Club Employers
  6. Commercial Property Service Providers

What if the ownership, organization, or location of the business changed?

Even if the ownership or organization of the business changed, if the business still operates the same or similar operations as before the COVID-19 state of emergency, the business must comply with this new law. The same is true if the business moved offices or locations.

Requirements of the Right-to-Recall Law

  1. Covered Employees: This law applies to laid-off workers that performed at least two hours of work during a six month period (including leave and vacation time), in the 12 months preceding January 1, 2020, that were terminated or separated due to a reason related to the COVID-19 pandemic and not due to a disciplinary reason. The employee is qualified if the employee held the same or similar position at the time of the COVID-19 lay-off.
  2. Opening a Position and Notice: Within five business days of establishing a position, an employer shall offer its laid-off employees in writing (by personal service or by mail to last known address and by email and text message, if possible), all job positions that become available for which the employee is qualified. The employer must provide at least five business days’ notice to the employee to accept or reject the position.
  3. Multiple Employees for One Position: If more than one laid-off employee qualifies for an open position, the position should be simultaneously and conditionally offered to each qualified employee. The conditional offers should indicate that the employee with the longest length of service gets priority, if accepted.
  4. Written Notice When Laid-Off Employee Not Hired: An employer that does not recall a laid-off employee on the grounds of lack of qualifications and instead hires a non-laid-off employee, written notice must be provided within 30 days including the length of service of the employee hired and all reasons for the decision.
  5. Recordkeeping: Employers must retain records for at least three years of the employees (i) full legal name; (ii) job classification at time of lay-off; (iii) date of hire; (iv) last known residential address, email, and telephone number; and (v) copies of written notices and communications regarding the lay-off and offers of employment.

How is the Right-to-Recall Law Enforced?

Non-compliance with Labor Code Section 2810.8 will give the former employee a right to file a complaint with the Division of Labor Standards Enforcement. A private right of action to file a lawsuit in court is not permitted. An aggrieved employee can recover front pay, back pay, lost benefits, and/or reinstatement if the employee prevails.

Depending on how many employees are covered within the business, civil monetary penalties ($100) and liquidated damages ($500) per employee for each day the law is violated until the violation is cured can be enormous.

However, there may still be a right to file a lawsuit for certain aggrieved employees. Check your local ordinances as cities or counties in San Diego, Carlsbad, Los Angeles, Pasadena, Oakland, Santa Clara, and San Francisco have also passed similar local laws. These local versions of the Right-to-Recall may permit an aggrieved employee to file a lawsuit in court.

For covered employers, carefully read and follow the requirements of Labor Code Section 2810.8. Click the following link for the full text of Labor Code Section 2810.8: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2810.8.&nodeTreePath=4.2.3&lawCode=LAB

If you have any questions, please contact Mandy Hexom at [email protected] or 619-515-5403.

EEOC Issues Guidance on Mandatory COVID-19 Vaccine Programs and Permissible Vaccine Incentives-What Employers Need to Consider

Posted on: June 3rd, 2021

By: John Bennett and Doug Blatecky

Although many businesses have not mandated that their employees get a COVID-19 vaccine, the EEOC’s recently released guidance confirms that federal equal employment opportunity laws do not prevent an employer from requiring employees physically entering the workplace to be vaccinated. It remains unclear whether not businesses can require employees to continue to work remotely to receive the vaccine. 

Although employers may require vaccinations for returning employees, such mandates are still subject to reasonable accommodations required for individuals with disabilities or religious objections. In addition, employees who are not vaccinated because of pregnancy may be entitled to accommodations. The EEOC’s guidance provides several examples of reasonable accommodations, which might include maintaining social distance from other employees, wearing a mask, periodic testing, working an alternative schedule, or working remotely. It is important to have an interactive dialogue with employees who object on the basis of a disability, sincerely held religious belief, or pregnancy to determine what, if any, accommodation would be reasonable under the circumstances. The EEOC also reminded employers that to determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an individualized assessment of the individual’s present ability to safely perform the essential functions of the job must be undertaken.

Employers that choose to implement a mandatory vaccine program should also be aware of the potential for claims that implementation of such a program has a disparate impact on employees within a certain protected group. Because some demographic groups may face greater barriers to receiving a COVID-19 vaccine than others, some employees may be more likely to be negatively impacted by a vaccination requirement. Thus, risk-averse employers may choose to encourage (rather than require) employees to get vaccinated and educate employees as to the benefits of vaccination.

The new EEOC guidance also expressly permits employers to provide incentives to employees for providing proof of vaccination. However, if the employer is sponsoring its own vaccination program for employees, incentives offered cannot be so substantial so as to be coercive. In addition, the Genetic Information Nondiscrimination Act prohibits employers from offering incentives to employees to have their family members vaccinated, but permits employers to extend the program to family members without incentive.

Finally, proof of vaccination is a protected medical record under the ADA and employers must take care to maintain its confidentiality, i.e., employers cannot generally share with the workforce the identity of who has or has not been vaccinated.

Guidance concerning the COVID-19 pandemic continues to evolve and leaves many employers with questions. If you have any questions or would like additional guidance, please contact our attorneys.  

For more information, please contact John Bennett at [email protected] or Doug Blatecky at [email protected].

Don’t Tell Me Where to Live! – New Jersey Public Employee Residency Requirements Deemed Unconstitutional

Posted on: May 19th, 2021

By: Stephanie Greenfield

A recent decision from the Superior Court of New Jersey held that the New Jersey First Act (“Act”) and its residency requirements are unconstitutional in their present form.

The Act, signed by Gov. Chris Christie in 2011, says nearly all public officers and employees must live within the state borders unless they are granted an exception for financial, health or other reasons. At the time, Christie and other supporters of the law said workers paid by New Jersey taxpayers should also be living in the state and paying state taxes. See N.J.S.A. 52:14-7. The limited exceptions apply to certain temporary or per-semester higher education teaching staff members and to those persons who are employed full-time by the State but spend a majority of their time working outside the State. For all other public employees required to maintain their principal place of residence in New Jersey, the Act contains a waiver provision, which provides in pertinent part that “[a]ny person may request an exemption from the provisions of this subsection on the basis of critical need or hardship from a five-member committee hereby established to consider applications for such exemptions.” N.J.S.A. 52:14-7.

In Somerville Bd. of Educ. v. Drake, Docket No. SOM-L-465-19 (decided Feb. 11, 2021), the Defendant Rebecca Drake (“Drake”), a tenured teacher in the Somerville School District (“District”), was terminated from employment because in or about August 2017, she moved from her principal residence in New Jersey to Pennsylvania.  Prior to moving to Pennsylvania, Drake sought a waiver, but her request was denied. She subsequently submitted a second waiver request (after she had already been living in Pennsylvania), which was ultimately granted. In or about March 2018, the District advised Drake that by her having moved to Pennsylvania prior to obtaining a waiver, she was in violation of the Act.  Drake was given the option to resign or the District would pursue legal action to separate her from employment.  Drake refused to submit a letter of resignation and, thus, in or about April 2018, the District filed suit against Drake to separate her from employment.

After responsive pleadings had been filed, Drake filed a motion to dismiss (or, in the alternative, a motion for summary judgment) and the District filed a cross-motion for same.

Many cities and local governments around the country have residency laws requiring police officers, firefighters and other public employees to live within their borders. However, Drake’s attorneys argued in court that New Jersey may be the only state in the nation to require all public employees, including teachers, to live in state.

Under the Act, the only exceptions are for workers who can prove a financial hardship, cite a health reason or provide a letter from their employer that they are “critical” in their workplace. In addition, any employee who was already living out of state when the law was signed in 2011 is grandfathered in and doesn’t need to move, according to the law.

On February 11, 2021, the Court issued an opinion granting Drake’s motion for summary judgment and dismissing the Complaint.  The Court held that The Act’s waiver provision does violate due process principles in that the standards applicable to waiver requests [are] unconstitutionally vague. The statutory standard of ‘critical need or hardship’ provides only a vague standard that is likely subject to a different interpretation by virtually every person who considers it.” 

The takeaway from this case is that public employers must be mindful of the Court’s holding in Drake prior to separating a public employee from employment because the employee violated the Act’s residency requirements.  The decision will also likely force lawmakers in New Jersey to revisit a decade-old law.

For more information, please contact Stephanie Greenfield at [email protected].

Massachusetts Appeals Court Holds Massachusetts Commission Against Discrimination Failed to Put Employer on Notice of Claims Tried in Public Hearing

Posted on: May 18th, 2021

By: Victoria Fuller and Matthew Schwartz

In 15 LaGrange Street Corporation v. MCAD, Civ. A. No. 20-P-726, the Massachusetts Appeals Court partially vacated a judgment entered by the Massachusetts Commission Against Discrimination (the “Commission”) against an employer to the extent it was based on the Hearing Officer’s finding that the complainant-employee was unlawfully terminated on the basis of race.  The Appeals Court held that the Commission failed to provide sufficient notice of the “substance and nature of the grounds” of the claim against the employer, in violation of the employer’s due process rights and the Massachusetts Administrative Procedures Act. 

In 15 LaGrange Street, the employee had filed a complaint with the Commission alleging that he was terminated for reporting discriminatory and illegal practices occurring at the workplace.  The investigating commissioner issued a probable cause determination and certified the case to a public hearing.  The employee’s complaint was attached to the certification, but the certification failed to identify the specific claims to be tried.  The investigating commissioner waived the certification conference and instructed the parties to raise issues at the prehearing conference with the hearing officer.  The employer contested the investigator’s waiver of the certification conference.  Nevertheless, no certification conference was held, and the Commission did not issue a complaint in its own name or identify the issues to be certified.

The Public Hearing proceeded.  The hearing officer determined that the employee failed to show his termination was retaliatory as pleaded.  The hearing officer found, instead, that the complainant’s termination was discriminatory on the basis of race – a claim that had not been previously identified by the complainant or Commission. The employer exhausted its administrative appeals with the Commission without success.

In its decision, the Appeals Court itemized each missed opportunity the Commission and the complainant had to put the employer on notice of the claim: the complaint did not allege that complainant was terminated because of his race; the complainant and Commission failed to cure the defective pleading through amendment; the complainant’s counsel failed to reference the claim in a statement given at the commencement of the Public Hearing; and the investigating commissioner failed to hold a certification conference or issue an order identifying the complainant’s claims certified to the Public Hearing.

Importantly, the Court held that “[w]hile the commission ‘is allowed to relax the application of the regulations where necessary in the interests of justice’ it must not do so where it would ‘prejudice the substantial rights of a party.’”

It is also worth noting that the Appeals Court upheld the Commission’s finding that the complainant had been submitted to a hostile work environment.  Importantly, the Appeals Court rejected the employer’s argument that it could not be liable because the former employee was able to get his work done despite the harassment.

The takeaway from 15 LaGrange is that employers defending against a complaint in the MCAD need to vigorously defend their right to a fair proceeding. They must also keep their eye on the long game.  Indeed, like in 15 LaGrange, employers may need to pursue several rounds of appeals after a Public Hearing.

For more information, please contact R. Victoria Fuller at [email protected] or Matthew Schwartz at [email protected].

Eligible Employers Have Until Monday, July 19, 2021 to Submit Their EEO-1 Component 1 Data Collection for the 2019 and 2020 Year

Posted on: May 12th, 2021

By: Hannah-Kate Gosch

On April 26, 2021, the Equal Employment Opportunity Commission (“EEOC”) announced that it was opening the 2019 and 2020 EEO-1 Component 1 data collection on its recently relaunched data collection website. Eligible employers have until Monday, July 19, 2021 to submit their 2019 and 2020 EEO-1 Component 1 data, which breaks down an eligible employer’s employees by job category, race, sex, and ethnicity.

Pursuant to Title VII of the Civil Rights Act of 1967, the EEO-1 report requires all eligible employers, such as private sector employers with 100 or more employees, and federal contractors with 50 or more employees awarded a contract of $50,000 or more, to report employee demographics by job category, gender, race, and ethnicity each year. This includes non-profits and not for profit organizations. However, federal contractors with 1-49 employees, other private employers with 1-99 employees, state and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes and tax-exempt private membership clubs other than labor organizations are exempt from the EEO-1 report requirement.

Eligible employers can file their 2019 and 2020 EEO-1 reports entirely online via: (1) the online form (available beginning Monday, April 26, 2021) or (2) a data file upload (available Wednesday, May 26, 2021). To complete the report, eligible employers will need: their company ID and passcode (provided via U.S. mail for previous filers or at registration for new filers); company EIN, NAICS codes, and DUNS number; address and EINs of all established locations; count of all full and part-time employees during the workforce snapshot pay period selected by the employer; sex and race/ethnicity of all employees; and job categories of all employees. To select the workforce snapshot pay period, an eligible employer must select one pay period in October, November, or December of the data collection year; eligible employers may select different workforce snapshot pay periods for the 2019 and 2020 data collections. For more information, visit the EEOC’s frequently asked questions page, fact sheets, or the filer support assistance page.

If you have any questions or would like more information, please contact Hannah-Kate Gosch at [email protected].