Seyfarth Policy Matters Newsletter - July 2020 #4

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NLRB Decision Gives Employers More Leeway to Discipline Employees for Offensive Speech.  Traditionally, the National Labor Relations Act protected offensive or even abusive speech by employees when the worker is involved in “concerted activity,” or activity that "concerns employees' interests as employees." In a decision issued Tuesday in General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the NLRB ruled that employers can discipline workers for making profane, abusive, or offensive statements so long as the employer’s action was not based on specific anti-union animus, reinstating the Wright Line analysis, which provides employers a useable guidepost to know when disciplinary actions can be taken in this traditionally confusing area. According to NLRB chairman John Ring, for too long, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision . . . eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”  Seyfarth, in conjunction with the Society for Human Resource Management, made the same argument in an amicus brief filed with the NLRB.

WARNing: New York’s WARN Requirements May Expand as Measure Moves Through Legislature.  As discussed previously, the NYS Assembly met this week to review an extensive array of bills as it nears the end of the 2019-2020 legislative session. One bill that we have been following closely, Bill No. A10674, introduced by Steven Otis in late June, was passed nearly unanimously by the Assembly on Wednesday. The bill requires employers with WARN Act notice obligations to notify affected communities and school districts, in addition to other WARN obligations, to ensure that these communities are aware of mass layoffs, plant closings, and major relocations. As we discussed, the genesis of the bill lay in the problems caused by the sudden closure of the Doral Arrowwood resort in Westchester County, NY. The surrounding communities, which were financially tied to the resort, were blindsided when they learned of the closure in the press. This past Monday, the bill unanimously passed the Senate Labor Committee. Stay tuned for updates.

Details on Next COVID-19 Stimulus Package Remain Scant — McConnell Promises a Clearer Picture Next Week.  Almost every major news outlet is reporting on the promised next package of COVID-19 stimulus, with particular focus on what Capitol Hill is going do about federal unemployment enhancements that sunset next week. The biggest hurdle at this moment is not between Republicans and Democrats, but rather between the GOP and the White House. Indeed, as Seyfarth explained here, the House passed its own stimulus package two months ago. The nation was expecting details on the Senate’s stimulus proposal this week, but we will all have to hold tight until next week for those additional details. While we won’t see the contents of the next stimulus package until next week, we at least know that (1) the White House has dropped its demand for a payroll tax cut, (2) there will be some kind of supplement to unemployment insurance, and (3) the Senate proposal will include some fashion of lability protections for businesses. For a primer on liability shields generally, see Seyfarth’s piece on the same here.

I’m Sorry, You’ve Been Exposed: NYS Assembly Passes Bill Requiring Employers to Notify Employees if They’ve Been Exposed to COVID-19.  On Tuesday, the NYS Assembly unanimously passed Bill No. A10353a, which we highlighted last week. The bill would amend the Labor Code and add Section 202-n, requiring employers to notify employees if they’ve come into contact with other employees who have been diagnosed with COVID-19, or in the bill’s words, a “disease outbreak causing a public health emergency.” The scenario outlined in the bill is in-person contact between the employees after which the employer gains “reasonable knowledge” that one of the employees has been diagnosed with the disease. See Bill at §1. The bill then requires the employer to inform, not the entire workforce, but merely “each employee who has had contact with the diagnosed employee within twenty-four hours of such knowledge.” The bill also bill exempts employers with ten or fewer employees. The Assembly sent the bill to the Senate on Tuesday where it was referred to the Rules Committee. Stay tuned to this space for updates.

If You Like Federal Agency Guidance, 2020 is Your Jam.  As we have noted throughout the pandemic, numerous federal agencies have issued numerous guidance documents purporting to address COVID-19. Those agencies are not slowing down now.  Recently, OSHA issued updated FAQs addressing when employers governed by the federal agency must report work-related cases of COVID-19. Under the new FAQ, an employer must report COVID-19-related hospitalizations when the employer has knowledge that (1) the employee has been hospitalized (2) as a result of COVID-19. This upends OSHA’s traditional recordkeeping procedures — employers must now report all COVID-19 cases regardless of time passed since the employee was exposed at work. Look for this new requirement to be challenged on APA grounds. The NLRB recently issued 16 advice memos, many of them specifically directed at the COVID-19 response. Generally, the pandemic-related advice memos addressed issues of COVID-19-related layoffs and temporary assignment offers to conduct testing or contact tracing; reasonable access during the pandemic; discharge following a request to work remotely due to COVID-19; and unilateral work-from-home and attendance policy changes related to the pandemic emergency. This week, the DOL’s Wage and Hour division released much-needed guidance on complying with the plethora of Federal Employment laws during pandemic. Seyfarth issued a helpful summary here.

More Than 60% of States Now Covered Under New York’s Quarantine Order.  New York, New Jersey and Connecticut announced on Tuesday (CuomoMurphyLamont) that they’ve added travelers from ten additional states, bringing the original list of eight states included in the joint incoming Travel Advisory to 31, representing more than 60% of the states in the Union. Alaska, Delaware, Indiana, Maryland, Missouri, Montana, Nebraska, North Dakota, Virginia and Washington State were added as they have met the metrics to qualify for the Travel Advisory, while Minnesota has been removed. Travelers from the 31 effected states will have to isolate for 14 days upon arriving in the three northeastern states. Earlier this month, New York State’s health department issued FAQs concerning the travel restrictions. While most are consistent with the initial understanding of the quarantine rules, Seyfarth recently highlighted several noteworthy points (e.g. no paid sick leave for voluntary travelers). Additionally, as discussed more fully in another of Seyfarth’s Legal Updates — published this week — the prospects for enforcement continue to differ among the three states.

New Jersey Confronts Vestige from Reconstruction Era: Formally Banning Slavery.  Earlier this year, two New Jersey Democratic State Senators introduced SCR 96, a Resolution proposing to amend the New Jersey Constitution (“Constitution”) by adding a new paragraph officially banning the practice of slavery and involuntary servitude, or in the language of the Resolution: “No person shall be held in slavery or involuntary servitude in this State, including as a penalty or a punishment for a crime.” On Wednesday, the State Government, Wagering, Tourism & Historic Preservation Committee voted unanimously to approve the measure, issuing this Statement. The inclusion of the proscription against servitude as a punishment for a crime goes beyond Amendment XIII of the US Constitution (which permits it), and is meant to include prisoners within its ambit. “This amendment ensures that no prisoner in this State would be involuntarily forced into labor, even if the labor performed by the prisoner would be compensated.” The measure must ultimately be voted on by the citizenry of New Jersey, but in order for it to get on the ballot, both houses must either pass it twice in consecutive years with simple majorities, or once with a three-fifths majority. See Constitution, Art. IX, Sec. 1. Justifying the bill, Ronald Rice, the Resolution’s co-sponsor, noted, “[w]e’re really fed up with laws on the books that should have been eradicated a long time ago.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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