On August 3, 2020, the US District Court for the Southern District of New York struck down four parts of the US Department of Labor’s (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA). A copy of the court’s ruling is available here. The FFCRA provides COVID-19-related sick leave and family leave to employees of businesses with fewer than 500 employees.
One round of layoffs is bad enough for rank-and-file morale. Subsequent layoffs can be even tougher on remaining employees, who may mourn the loss of their colleagues and wonder if they will be next. Employers can take steps to limit the damage and avert potential liability problems before and during the layoff process. Open communications before and after layoffs, to the extent possible, can help workers come to terms with the layoffs.
Under the Older Workers Benefit Protection Act, employees who are 40 years old or older are guaranteed time to think about whether or not to sign a release—21 days if only one person is being laid off, 45 days if two or more are laid off. After signing, they have another seven days to revoke the acceptance of the agreement.
When the release is signed in exchange for a severance package, the separation agreement must list the job titles and ages of all employees in the organizational unit, showing which are being laid off and which are not, explained Neil Capobianco, a McDermott partner in New York City, in a recent article by the Society for Human Resource Management (SHRM).
Employers in Spain are contending with the ongoing effects of the coronavirus pandemic, which continues to raise health and safety concerns. A resurgence of COVID-19 cases in July prompted some parts of the country to re-implement restrictions that had been lifted earlier.
“Spain was among the countries hit hardest by the coronavirus,” said Brian Cousin, head of the employment practice group at McDermott Will & Emery, in a recent article by the Society for Human Resource Management (SHRM). Employers and HR professionals in Spain should monitor news about national and local restrictions and regulations, as well as new guidance issued by local health authorities, the Spanish Health Ministry and the World Health Organization, according to Cousin. “Local and regional requirements can change on a daily basis,” he said.
The employment and business decisions made by employers under the specter of the unprecedented COVID-19 pandemic are now being tested by plaintiffs’ lawyers. Employers of all sizes should expect a flood of employment litigation alongside ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communication – both internally and externally. This article outlines the types of claim that are emerging and are expected to increase as a result of COVID-19.
The COVID-19 Global Guide for Business provides employers with the latest information on returning to work. Nations around the world are struggling to reopen amid the coronavirus pandemic, and government responses to COVID-19 differ significantly based on local laws, culture, politics and the severity of the outbreak. Legal professionals in 50+ countries contributed to this complimentary guide, which now has two volumes: Responding to the Pandemic and Returning to Work. Both are designed for C-level executives, HR professionals and in-house counsel.
Employers considering President Trump’s plan to allow deferred payment of payroll taxes face a series of costs, uncertainties and headaches. The president wants employers to stop collecting the 6.2% levy that is the employee share of Social Security taxes for many workers, starting September 1 and going through the end of the year. The president’s plan doesn’t change how much tax employees and employers actually owe. Only Congress can do that.
In a recent article by The Wall Street Journal, David Fuller, a tax lawyer at McDermott in Washington, DC, said, “We’re looking at a crystal ball not knowing what we’re going to see.”
Some essential workers are refusing to go to work out of fear of contracting COVID-19. Their employers must weigh the employees’ legal rights and understandable health concerns with the organizations’ business needs. It can be a tough balancing act.
In a recent article, McDermott Partner Pankit Doshi said employers may relax documentation requirements due to the difficulty some employees could have obtaining access to medical providers during the pandemic and to encourage ill employees to stay away from work.
In Germany, a Corona Alert App has been deployed. If a user tests positive for COVID-19, it’s entirely up to the user to share the test result via the app. Employees are at liberty to use the app voluntarily on their personal devices, but employers cannot oblige employees to use it on a private or company mobile phone outside of working hours.
Class action litigation brought under the Fair Credit Reporting Act (FCRA) is on the rise—particularly in California—after the US Court of Appeals for the Ninth Circuit issued a 2017 decision applying a hypertechnical approach to the FCRA’s disclosure requirements. Background checks are an integral part of the hiring process, but they open employers up to lawsuits for noncompliance with disclosure or adverse action requirements. Plaintiffs’ firms are turning their attention to these cases because of the potential for statutory and actual damages, punitive damages, costs and attorneys’ fees.
Please join us for a complimentary webinar Thursday, July 30 as we discuss strategies to help employers avoid and defend these claims.
Complying with the federal WARN Act, a layoff or shutdown notification law, and its state counterparts is more than just crunching numbers. In a recent Bloomberg Law article, McDermott Will & Emery’s Kate De La Cruz examines five “alarms” companies should consider to ensure compliance.
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