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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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New 2022 California Employment Laws: How Businesses Can Protect Themselves

COVID-19 has permanently changed the workplace we once knew. Employers needed to adapt to new legislation meant to deal with the unprecedented impact of the pandemic. Expansion of the California Family Rights Act, mandatory paid sick leave for COVID-related illness, extended workplace safety protections, and workers’ compensation coverage for employees based on the rebuttable presumption they contracted COVID-19 at the workplace were just some of the laws enacted to expand and enhance employee benefits in response to the pandemic.

In 2021, California lawmakers continued to focus their efforts on resolving the negative effects of COVID-19, placing even greater responsibility on employers. Mandatory paid sick leave was extended through September 30, 2021. Job protection has also been enhanced to the point of shielding employees from termination due to poor performance. Various state agencies have been given additional authority to enforce the new laws and impose stiffer penalties for non-compliance. Although it is not yet illegal to be an employer in California, it is becoming increasingly more difficult to comply with the myriad of evolving regulations and also stay in business. 

The following are summaries of the new laws most impacting California employers, with recommendations on what employers should do to avoid potential liability. Read More ›

OSHA Releases Highly Anticipated Vaccine Mandate ETS

Nearly two months after President Biden unveiled his COVID-19 Action Plan, the federal Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) that requires all employers with at least 100 employees to establish, implement, and enforce a written policy mandating that each employee either be fully vaccinated against COVID-19 or submit to weekly COVID-19 testing and wear face coverings indoors. OSHA clarifies that the ETS is meant to strongly encourage employers to stipulate that its employees must be fully vaccinated against COVID-19, but includes a narrow testing and face covering exception—at least for now. Read More ›

Dilemma for Texas Employers: Require Vaccinations or Not?

Texas employers who have tried to adopt “best practices” with respect to the health and safety of their employees and customers during the past 18 months have faced quite a challenge. Disagreements between officials at the local, state, and national levels, and the healthcare professionals supporting those officials, have resulted in a variety of guidance, executive orders, and laws often imposing contradictory requirements with respect to operating limitations and requirements, masking requirements, social distancing, and, now, vaccination requirements. While many may differ on their political, religious, philosophical, or other bases for supporting or opposing such requirements, most employers have gotten to the point that they simply want to know what they need to do to keep the doors open while keeping employees and customers safe. However, the answer to the issue of whether vaccinations can be required of employees just got more difficult for Texas employers. Read More ›

To Vax or Not to Vax: No Longer a Question for Larger Private Employers Under Biden’s Vaccine Mandate

On Thursday, September 9, 2021, President Biden announced his administration’s latest plan to increase the number of Americans who are vaccinated to combat the spread of COVID-19. For private employers, the most significant portion of the plan is President Biden’s direction to the Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate vaccinations for their employees or require their employees to produce a negative COVID-19 test result on at least a weekly basis. This ETS is expected to cover approximately 80 million workers. Read More ›

The Window Is Closing for Employers to Notify Individuals About the Expiring ARPA COBRA Subsidy

The American Rescue Plan Act of 2021 (“ARPA”) provides a premium subsidy for continuing coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for employees who lost their health insurance coverage as a result of an involuntary termination (other than gross misconduct) or a reduction of hours, known as Assistance Eligible Individuals (“AEIs”). This COBRA premium subsidy generally is available between April 1, 2021, and September 30, 2021, unless it ends earlier for AEIs who become entitled to other group health coverage or Medicare. Read More ›

Reminder to Texas Employers: Update Your Harassment Policies and Training

As we reported in June, the Texas Labor Code was amended effective September 1 to expand liability for employers as to employee claims of sexual harassment. Specifically, the amendments to the Labor Code:

  • Impose liability for sexual harassment claims on more employers, by expanding the protections of the Labor Code to employers with as few as one (1) employee;
  • Open the door for potential individual liability by owners, supervisors, and managers for claims of sexual harassment;
  • Require an employer to take “immediate” and appropriate corrective action in response to a claim of sexual harassment, potentially accelerating an employer’s need under federal law to take “prompt” remedial action; and
  • Increase the Charge-filing period for those claiming sexual harassment from 180 days to 300 days.
 Read More ›

DOL Rescinds Trump-Era Joint Employer Rule: Employers Beware!

On July 29, the Department of Labor (DOL) announced a final rule rescinding the Trump Administration’s Joint Employer rule. This move clearly reestablishes the DOL’s quest to broaden the scope of potential liability for businesses under the Fair Labor Standards Act (FLSA) for the wrongs of their subcontractors, franchisees and other entities. This move is consistent with the Biden Administration’s trend to reinstate the measures taken under the FLSA by the Obama Administration, including those taken to broaden the scope of who could be deemed joint employers under the FLSA. The rule promulgated by the Trump Administration had replaced an Administrator’s Guidance issued by the Wage and Hour Administrator of the Obama Administration, David Weil. Consistent with this trend, David Weil has been nominated to serve the current administration in the same role he held during the Obama Administration. Read More ›

Lessening Liability for Unpaid Overtime Pay Claims: The Best Defense is a Good Offense

The Problem

The Biden DOL is primed to aggressively pursue errors made with respect to the payment of overtime compensation as required by the Fair Labor Standards Act (FLSA). While doing so, it’s also primed to assert claims for liquidated damages whenever it finds errors, even for errors that were inadvertent, and even for those that may seem nominal. These liquidated damages are equal to the amount of unpaid overtime its investigators deem due. Read More ›

Insights & Updates — Minimum Wage and Overtime

In today’s Insights & Updates chat, Robert Boonin, from Dykema’s Labor & Employment Group, and James Brandell, a Government Policy Advisor from Dykema’s Washington, D.C., office, discuss what is on the Biden Administration’s agenda in terms of redirecting wage and hour law. Read More ›

Insights & Updates – Independent Contractor Changes

In this episode of Insights & Updates, Robert Boonin, from Dykema’s Labor & Employment Group, and James Brandell, a Government Policy Advisor in Dykema’s Washington, D.C., office, discuss the evolving legal standards for determining who are “independent contractors” versus “employees” in the eyes of the courts, the Department of Labor (DOL), and the National Labor Relations Board (NLRB). This is critical due to the Biden Administration’s apparent view being that many independent contractors are really misclassified employees, and such misclassifications expose employers to substantial liability. Read More ›