A new federal law allows employees to avoid arbitration agreements with respect to sexual harassment or sexual assault claims.  The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 applies to pre-dispute arbitration agreements, such as those included in employment contracts or stand-alone arbitration agreements entered into at the time of hire.  Many employers have adopted arbitration agreements because such agreements can contain enforceable waivers of the right to bring collective or class actions.  They also avoid the risk of run-away jury verdicts.

Continue Reading New Law Lets Sexual Harassment Claimants Get Out of Arbitration Agreements

Here’s another entry in our occasional series of really bad behavior in the workplace – police officers who decided to continue playing Pokémon Go rather than respond to a robbery in progress! And then had the chutzpah to challenge their firing despite the fact that their gaming activity – and astonishing decision not to respond to the call for assistance with the robbery – was recorded by their in-car video-system!

Continue Reading Extraordinary Workplace Misconduct: No Pokémon Go While Policing!!

In our occasional series spotlighting outrageous workplace conduct, we have come across an incredible, albeit petty, means of payment: pennies. Rarely does the inconsequential piece of copper find itself in the headlines. But, one former employee likely saw enough pennies in one day to last him a lifetime.

Continue Reading Extraordinary Workplace Misconduct: Petty Pennies

On January 25, 2022, the Occupational Safety and Health Administration announced that it was withdrawing its beleaguered Emergency Temporary Standard that required employers with 100+ employees to mandate employees to be vaccinated or subject to weekly COVID-19 testing. With this action, the vax-or-test mandate is no more – for now. However, healthcare employers should be aware that, in addition to the Center for Medicare and Medicaid Services’ vaccine mandate that was recently allowed to take effect by the Supreme Court, they will soon be subject to a permanent standard replacing the healthcare ETS that OSHA previously withdrew in December 2021.  Continue Reading OSHA Withdraws Vax-or-Test ETS, Plans to Issue Permanent Healthcare Standard

[UPDATE – The DOL seems to have removed the fact sheet from its website – but we captured a printout. We also note that the fact sheet referenced the Vax-or-Test ETS as if it were still in existence; perhaps that’s why it was pulled. Be warned that the printout is NOT official and, according to the DOL, should NOT be relied upon! In other words, you won’t be able to cite to the guidance, but we believe the general FLSA principles will likely not change in any future guidance.]

For much of the past year or so, employers have struggled with the question of whether they must pay employees for the time spent getting vaccinated against or tested for COVID-19, particularly during off-duty hours. The U.S. Department of Labor has finally issued guidance on this issue under the Fair Labor Standards Act. Continue Reading The DOL (Finally!) Provides Guidance on Compensability of COVID Testing/Vaccination Time!

Determining pay based on gender is wrong. It’s also pernicious. The domino effect of an inappropriately depressed starting wage can impact pay for one’s lifetime. It’s also illegal under Federal and State anti-discrimination laws; pay decisions must be based on the job, not protected characteristics, including a person’s gender. Beyond these laws, which often address alleged violations after-the-fact, pay equity increasingly is being dealt with by State laws prohibiting inquiries about past salary and/or that require employers to provide applicants with salary ranges for the job they are seeking. The goal is to head off discrimination and stop the dominos from tumbling toward a lifetime of depressed wages. All of these laws are premised on the statistics that show women earn roughly 83 % of wages earned by men.

Continue Reading Pay Equity – What’s Good for the Gander is Good for the Goose?

As predicted by most legal observers, a split U.S. Supreme Court has stayed the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees to mandate vaccinations or weekly testing/face coverings for their workforce. However, it has lifted the partial stay of the Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule mandating vaccination of workers of most Medicare- and Medicaid-certified healthcare entities. Continue Reading Supreme Court Stays Vax-or-Test ETS But Allows CMS Vaccine Mandate – What Employers Need to Know

Throughout the pandemic, the guidance from the Centers for Disease Control and Prevention has been constantly evolving to reflect changing circumstances. The latest development is a reduction in quarantine and isolation periods under certain circumstances, which will allow employers to bring employees back to work sooner than before and make other adjustments to their COVID protocols. Continue Reading What the CDC’s Updated Isolation/Quarantine Guidance Means for Employers

OSHA Withdraws the Healthcare ETS. The Healthcare ETS, which was promulgated by the Occupational Safety and Health Administration (“OSHA”) on June 21, 2021, has been largely withdrawn by OSHA.  On December 27, 2021, OSHA announced its withdrawal of the non-recordkeeping components of the Healthcare ETS.  We previously described the requirements of the Healthcare ETS in our June 15, 2021 E-lert.

Continue Reading OSHA Scraps Its Healthcare ETS While CMS Moves Forward With the Vaccine Mandate in Half of the Country

In a decision that surprised many legal observers, the U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. This means that larger employers must now come into compliance with the requirements of the ETS, unless the U.S. Supreme Court steps in with another stay. In the meantime, the federal contractor vaccination mandate is currently stayed, while the Center for Medicare and Medicaid Services’ vaccination mandate for the employees of Medicare- and Medicaid-certified providers is partially stayed – although both stays have been appealed by the Biden Administration.

Continue Reading OSHA’s Vax-or-Test Emergency Temporary Standard For Larger Employers Is Back in Business – For Now