Join SEPA SHRM for a live presentation on Tuesday, April 26, 2022 with Brian Pedrow, Esq. of Ballard Spahr LLP on the Year in Review – Legal Update.  Brian Pedrow is part of Ballard Spahr’s Labor and Employment Group and serves on the Board of SEPA SHRM.  This presentation will reflect on the Labor and Employment developments of the last year, with discussion of key legislative, regulatory and judicial developments.  This program is useful to in-house counsel, as well as business leaders and HR professionals.  Click here to register, and here to view the 2022 program schedule.

A quick update on key legal developments for employers with employees in New York.

  • Whistleblower Protections. Expanded whistleblower protections under New York Labor Law Section 740 are now in place. Effective January 26, 2022, the amendments to Section 740 expand private-sector whistleblower protections beyond reports of public health and safety concerns and health care fraud. As amended, the law’s protections extend to individuals (including former employees and independent contractors) who report, or threaten to report, any activity they reasonably believe is a violation of law, rule, or regulation or a substantial and specific danger to public health and safety. In addition, the amendments extended the statute of limitations for a New York whistleblower claim from one to two years, and expanded the definition of retaliatory action, among other changes.
  • HERO Act. The HERO Act has been extended through March 17, 2022. Due to continued transmission of COVID-19, New York extended the HERO Act, which requires employers to adopt an industry specific workplace health and safety plan to protect employees against exposure from COVID-19.
  • Employee Monitoring. Effective May, 7, 2022, New York employers that monitor employee electronic activity must notify employees of that electronic monitoring. Employers that electronically monitor phones, emails, and/or internet usage (among other sources) will be required to give written notice of that monitoring to new employees upon hiring, obtain written acknowledgement of that notice, and must post a notice of those monitoring efforts in the workplace in a “conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.” For purposes of this notice, employees must be advised that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”
  • Publishing Salary Ranges. As of May 15, 2022, employers employing four or more workers must include a good faith salary range (i.e., the minimum and maximum salary for any position) in any advertisements for a job, promotion, or transfer opportunity performed in NYC.
  • State Paid Family Leave Expanded. As of January 1, 2023, New York State’s Paid Family Leave will permit employees to take leave to care for a sibling with a serious health condition.

Ballard Spahr’s Labor and Employment attorneys are here to provide guidance and answer questions about issues facing employers with employees in New York.

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released several pieces of guidance aimed at addressing discrimination against caregivers, including:

  • A technical assistance document entitled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law”;
  • Updated COVID-19 guidance, entitled “What You Should Know,” which explains what may constitute discrimination against employees and job seekers with family caregiving responsibilities; and
  • A short video explaining caregiver discrimination in both English and Spanish.

The technical assistance, available here, explains that discrimination against people with caregiving responsibilities may be unlawful under federal employment discrimination laws, depending upon the relevant facts and circumstances, and provides related examples.  In a question-and-answer format leaning on real-world scenarios, the EEOC provides guidance on how and when discrimination against applicants or employees with caregiving responsibilities violates the law, as well as explanations regarding required accommodations.

The EEOC’s COVID-19 “What You Should Know” page, available here, also has been updated to include a section titled “Caregivers/Family Responsibilities.”  This information explains how unlawful caregiver discrimination might arise and addresses considerations related to sex discrimination and other pandemic-related caregiver discrimination issues.

This new guidance from the EEOC underscores the need for employers to continue to be vigilant in how they address pandemic-related requests for caregiver accommodations, even as other COVID-19 precautions relax.  Ballard Spahr counsels employers to ensure that their positions with respect to hiring and workplace accommodations are consistent and in compliance with the EEOC’s guidance as well as federal, state and local laws.

In response to dropping cases of COVID-19 in the City, on March 2, 2022, Philadelphia announced that it has moved into the “All Clear COVID Response Level,” and, as a result, will no longer enforce its indoor mask mandate.  The change is effective immediately for businesses and institutions.  The Philadelphia Department of Public Health also stressed that businesses may still require masks, and that the City may reinstate the mask mandate if COVID-19 cases rise, or a new variant develops.  In addition, masks will still be required in certain higher risk settings, health care institutions, congregate settings, and on public transportation.  In addition, the School Board of Philadelphia announced that mandatory masking in Philadelphia schools ended on March 9, 2022.  However, masking will still be required for pre-kindergarten classes, and masks will be required for one week after spring break to avoid a post-break surge in cases.  City buildings continued to require masking until March 7, and now, masks are optional for visitors and fully vaccinated staff, while unvaccinated staff are still required to wear two masks while indoors and around others.

President Biden has signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which we previously discussed here. During the signing ceremony, President Biden celebrated the legislation, stating it was a “momentous day for justice and fairness in the workplace.”

What still remains to be seen is how this law will be interpreted and applied. Many commentators have questioned how lawsuits that include more than one claim – just one of which is sexual harassment or assault– will be treated under this law. Specifically, would such cases be divided by claim, and subject to arbitration and litigation simultaneously?  And who decides how the case will proceed – the arbitrator or the court?  Time will tell.

The U.S. Equal Employment Opportunity Commission (“EEOC”) has applauded the new law, stating that it expects more workplace sexual harassment claims to be investigated by the government, and then litigated against employers.  The EEOC noted that in 2020, more than 6,500 private sector sexual harassment charges were filed with that Agency.

Given the EEOC’s outreach regarding this new law and wide media publicity, and the research showing that most workplace sexual harassment is not reported, we recommend that employers work with their counsel to update any employee arbitration and alternative dispute resolution agreements and policies to ensure compliance with the law.  Ballard Spahr regularly works with its clients to update their policies and to take other preventative steps, such as training and prompt investigation of claims to avoid and address sexual harassment claims.

President Biden’s vaccination mandate for federal contractors remains under a nationwide injunction.  In September 2021, President Biden issued Executive Order 14042, which directed federal agencies to require certain federal contractors and subcontractors to implement a vaccine mandate and COVID-19 workplace safety measures.  On December 7, 2021, the Southern District of Georgia enjoined the Executive Order nation-wide, and the injunction was later upheld by the US Court of Appeals for the Eleventh Circuit.

The federal government appealed the Eleventh Circuit’s decision, and briefs were submitted by the parties in January 2022.  Oral argument currently is scheduled for April 8, 2022 before the appellate court.

In addition, the Southern District of Georgia issued a subsequent order on January 21, 2022, stating that the ruling on the injunction expressly covered the vaccine mandate only.  The court explained that the other aspects of the Executive Order remain in effect, including the health and safety protocols contained in subsequent guidance, such as masking, social distancing, and designation of COVID-19 safety coordinators.

Confusion remains as to whether these other aspects are in effect, particularly in light of the fact that other federal courts have enjoined Executive Order 14042, but only in certain states including Alaska, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, and Wyoming.

While the legal status of the Executive Order’s remaining COVID-19 safety rules is unclear, the Office of Management and Budget issued guidance stating the Government will take no action to enforce any clause implementing Executive Order 14042.  In addition, the Department of Defense issued a memorandum on December 9, 2021 stating that its contracting officers will not enforce clauses implementing the Executive Order.  The Department of Defense also instructed all contracting officers not to include clauses required by the Executive Order in existing contracts, task orders, and delivery orders.

We will monitor the upcoming oral argument and other developments regarding the federal contractor vaccine mandate.  Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance.

On the latest episode of our podcast, Business Better, our Ballard lawyers provide an update on the current status of the federal COVID-19 vaccine mandate, and the steps employers should be taking as a result of the recent changes.

Leading this discussion is Lila Sevener, an Associate in Ballard’s Philadelphia office. With Lila are Brian Pedrow and Shannon Farmer, both of whom are Partners in Ballard’s Philadelphia office. Lila, Brian and Shannon all focus on representing employers in labor and employment litigation and investigations and counselling them on employment policies and practices.

On February 7, 2022, the Task Force on Worker Organizing and Empowerment publicly released its report to President Joe Biden, offering nearly 70 recommendations to promote pro-union policies and practices in the public and private sectors. The Task Force, chaired by Vice President Kamala Harris, embodies President Biden’s vow to be the “most pro-union President” in United States history. All employers – including those who are already dealing with unions, and those who do not have unionized workers, will want to digest this report because it previews actions to come by unions and the federal government that will impact the workplace.

The report offers recommendations to promote worker organizing and collective bargaining for government employees and contractors. It also recommends increasing access for all workers to information about their rights to join or organize a union and aggressively enforcing existing labor laws. Ballard Spahr’s legal alert, which digests these recommendations is linked here.

The U.S. Senate passed a bipartisan bill aimed at preventing employers from requiring workers to arbitrate sexual harassment and assault claims. The bill will now go to President Biden for his expected signature.

The bill, known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, will amend the Federal Arbitration Act to prohibit enforcement of contract clauses that require arbitration of workplace sexual harassment or assault claims. For purposes of this bill, sexual assault means a nonconsensual sexual act or contact, as defined under federal law, or applicable tribal or state law, including when the victim lacks capacity to consent. Sexual harassment is defined by applicable federal, tribal or state law. As a result, employees would be free to pursue such claims in court, although they would still be allowed to pursue arbitration, at their option.  Notably, other civil rights claims, including gender or race discrimination, are not covered by this bill, and can still be included in mandatory arbitration provisions. This bill also would not alter existing requirements that claims under Title VII be exhausted through initial filing with the EEOC or applicable state or local agency.

Support for this bill was widespread in the wake of the #MeToo movement, which brought sexual harassment and assault in the workplace to light.  Many employee advocates have claimed that many victims of workplace sexual harassment could not have their rights fully vindicated, including public airing of their claims, due to agreements requiring private arbitration. Some states have already imposed restrictions on arbitration of sexual harassment and sexual assault claims as a result.  To date, these efforts, like this bill, generally have not expanded to prohibiting arbitration of other employment claims, including gender discrimination claims that do not involve allegations of sexual harassment and sexual assault.

Once the bill takes effect, employers should revise any arbitration provisions in their employment agreements, arbitration agreements and other contracts to ensure that claims of workplace harassment and assault are carved out of any mandatory arbitration provisions.

On February 1, 2022 National Labor Relations Board General Counsel Jennifer Abruzzo announced an initiative to seek injunctions under Section 10(j) of the National Labor Relations Act in cases “where workers have been subject to threats or other coercive conduct during an organizing campaign.”  According to her memo, Abruzzo opines that, “because threats or other coercion have a well-recognized inhibitive effect on employees, there is a likelihood of immediate harm to employee organizing efforts.”

The General Counsel stated that injunctive relief would prevent employer escalations from threats to unlawful actions. The initiative will bar employer interference earlier in the unionizing process and would allow unionizing employees to take their employers to court before they can be fired. The memo was issued amidst highly publicized efforts by e-commerce and retail company employees and others in non-traditional industries to unionize, and illustrates the decidedly more pro-union stance of the Biden administration.

From a practical standpoint, employers are advised to communicate cautiously with employees during any union organizing campaigns. The legal rules in these situations are complex and nuanced, and the NLRB now is especially focused on punishing employers who commit unfair labor practices while attempting to stop union organizing with unlawful threats or other coercive behavior.

Ballard Spahr’s Labor and Employment Group advises employers regularly on how to navigate communication and negotiation with their employees in the context of organizing campaigns and the shifting rules that apply thereto.