On October 16^th, 2020, the Occupational Safety and Health Administration (OSHA) announced a total in proposed penalties for coronavirus violations. Since the start of the pandemic through October 8^th, 2020, the agency has cited 85 establishments for related violations. These proposed penalties total $1,222,156.

Overview of Violations

OSHA inspections have resulted in the agency citing employers for violations, including failures to:

• Implement a written respiratory protection program;
• Provide a medical evaluation, respirator fit test, training on the proper uses of respirators and personal protective equipment;
• Report an injury, illness, or fatality;
• Record an injury or illness on OSHA recordkeeping forms; and
• Comply with the General Duty Clause of the Occupational Safety and Health Act of 1970.

OSHA had already announced citations relating to 62 establishments. As of the date of this blog post, an additional 23 establishments received coronavirus-related citations. OSHA’s Establishment Search website, which is periodically updated, contains more information about individual citations. The agency has also created a website with a full list of standards cited for each establishment.

OSHA COVID-19 Resources

Recently, OSHA announced the publication of additional COVID-19-related frequently asked questions and answers (FAQs). The new FAQs discuss the need to report employees’ in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus. As reported in October, OSHA has been updating these FAQs with new information since the beginning of the global pandemic.

This release was OSHA’s latest effort to offer information on how it enforces standards and regulations during the pandemic. OSHA has also previously published revised enforcement guidance detailing how OSHA enforces recordkeeping requirements for coronavirus illnesses. For more COVID-19-related information, employers can visit OSHA’s COVID-19 webpage.

Employer Takeaways

Under the Occupational Safety and Health Act of 1970 (OSH Act), employers are responsible for providing safe workplaces for employees. Since the beginning of the pandemic, OSHA has stated that employers have a responsibility to handle workplace COVID-19-related issues. This could include creating new policies, reporting and recording cases of COVID-19-related injuries or illness, and implementing proper training. By complying with the OSH Act, employers can keep employees safe and healthy and avoid possible fines and penalties.

Under new Small Business Administration (SBA) guidance, certain Paycheck Protection Program (PPP) borrowers might face new requirements. The SBA Procedural Notice (Notice) provides information concerning changes of ownership transactions for entities that received PPP funding. Notably, the Notice addresses a change in ownership interest of the PPP borrower (borrower) itself. It does not specifically address changes in ownership at the level of the borrower’s possible affiliates.

Released on October 2nd, 2020, the Notice establishes categories of transactions, some that may require prior approval of the SBA. The contents of the Notice are effective for transactions that close on or after the date of the Notice’s release.

Overview of the Procedural Notice

According to the Notice, “change of ownership” occurs when:

• the borrower sells or transfers at least 20% percent of the common stock or other ownership interest;
• the borrower sells or otherwise transfers at least 50% of its assets; or
• a borrower merges with or into another entity.

Prior to any change of ownership closing, a borrower must notify its PPP lender (lender) of the transaction. The borrower must also provide the lender any proposed agreements or documentation that would affect the transaction.

Borrowers must also provide notice and obtain the SBA’s consent prior to the change of ownership transaction unless:

• the PPP loan has been fully satisfied through repayment;
• the sale or transfer is 50% or less of the common stock or other ownership interest of the borrower; or
• the borrower has completed a forgiveness application reflecting use of the PPP loan (loan) and established an interest-bearing escrow account. The escrow account would include the full amount of the balance of the loan.

Regardless of any change of ownership, the original borrower remains responsible for:

• the performance of all obligations under the loan,
• the accuracy of the certifications made in connection with the PPP loan application, including the certification of economic necessity; and
• compliance with all other applicable PPP requirements.

Additionally, the borrower must obtain, prepare, and retain all required PPP forms and supporting documentation. The borrower must also provide those documents to the lender or the SBA upon request.

 Employer Takeaways

Although the guidance clarifies when a change in ownership requires SBA approval, borrowers remain subject to all PPP loan obligations. The guidance states that the SBA reserves all remedies available for fraud, false statements, and unauthorized uses of prior funding. Before moving forward with change of ownership transactions, employers should consult with legal or financial authorities to verify proper compliance.

 Last Updated on October 13^th, 2020

On November 3^rd, 2020, U.S. registered voters will participate in one of the most important elections in the nation’s history. On this and all future Election Days, employers need to make sure they are following applicable employee voting rights laws. Failure to comply with such requirements could lead to criminal or civil penalties.

General State Employee Voting Leave Laws

In most situations, employee voting laws vary by state. For example, in some states, employers have to provide paid time off for early voting or absentee ballot submission. Other states allow such time to be unpaid. The laws also differ usually by state in:

• the amount of time provided; and
• what hours the employer can dictate employees to take off for voting.

States may also have specific notice requirements advising employees of their voting leave rights. In addition, some locations order that employers provide time off to those who serve as election officials.

Specific State Employee Voting Leave Laws

As of the publication of this post, 30 states have some form of voting leave laws. To help employers follow these laws,  the National Law Review has published a list of specific voting leave requirements. Included in this blog post is a sampling of that list and only includes two states: California and New York. Of note to New York employers: the state’s voting leave requirements are recent and became effective this year.

California (California Election Code § 14000)

Employees receive an amount of time off to vote that, when added to the voting time otherwise available to the employee outside of working hours, will enable the employee to vote. An employee with sufficient non-working time to vote is not entitled to additional time off to vote.

• • Employees must give two working days’ advance notice prior to the election.
  • Employees can take time only at the beginning or end of the work shift. This time needs to allow the greatest amount of possible free time for voting. The time frame also needs to allow the least time off from work, unless otherwise mutually agreed upon.
  • Paid: No more than 2 hours of the time taken off for voting may be without loss of pay.
  • Posting Requirement: Employers must post a notice of voting time requirements at least 10 days before an election. Employers can satisfy this requirement by posting a copy of the California “Time Off to Vote”

New York (New York Election Law § 3-110)

The law states that a registered voter who does not have 4 consecutive non-working hours to vote while the polls are open may take time off. The voter may take as much working time as needed to vote and be paid for up to 2 hours.

• • The employee must provide notice of leave at least 2 working days prior to the election.
  • The employer may specify the hours. Employees must take it at the beginning or end of the work shift. The employer can designate what time can be taken, unless otherwise agreed upon.
  • Not more than 2 hours may be without loss of pay.
  • Posting Requirement. Employers must conspicuously post a notice about the law at least 10 working days before every election. The notice needs to remain posted until the close of the polls on Election Day.

Employer Takeaways

Employers should review existing policies and practices immediately to ensure compliance with applicable laws. Also, employers should address any employee requests for time off prior to Election Day. Additionally, during the COVID-19 pandemic, employers should consider the impact of voting time off for remote employees. This would include having to address the technical aspects of posting any required state or local notices.

Last Updated on October 13^th, 2020

On September 28^th, 2020, the U.S. Department of Labor (DOL) issued a hotline in response to two Executive Orders. Under the direction of the Office of Federal Contract Compliance Programs (OFCCP), a new email address was also issued. These communication methods are to receive and investigate complaints under existing Executive Order (EO) 11246 and the recent EO 13950. Both EO’s cover federal contractors. The new OFCCP Complaint Hotline is available at (202) 343-2008 or via email at OFCCPComplaintHotline@dol.gov.

After the hotline launched, the OFCCP created a Frequently Asked Questions (FAQ) webpage dedicated to EO 13950. The contents of the FAQ (created on October 7^th, 2020) include:

• Examples of race or sex stereotyping and scapegoating;
• Unlawful stereotyping and scapegoating in training programs; and
• How to file a complaint under EO 13950.

Background of Executive Order 13950

Issued on September 22^nd, 2020, EO 13950:

• promotes economy and efficiency in federal contracting;
• promotes unity in the federal workforce; and
• combats offensive and anti-American race and sex stereotyping and scapegoating.

The order also enables employees to file complaints against a federal contractor using training in violation of EO 13950. Effective immediately, the EO applies to contractors who enter into federal contracts on or after November 21st, 2020.

Connection Between Executive Orders 11246 and 13950

Training programs prohibited by EO 13950, however, might violate training obligations under the existing EO 11246. EO 11246 prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin. It also prohibits inquiring about, discussing, or disclosing personal compensation or the compensation of others. An employee may file a complaint regarding training they believe to be in violation via the OFCCP’s website at https://www.dol.gov/agencies/ofccp/contact/file-complaint. The OFCCP can also send copies of the complaint form by email or regular mail.

Additional Laws Enforced by the OFCCP

The OFCCP also enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act. These laws make it illegal for federal government contractors and subcontractors to discriminate in employment on certain characteristics. These traits are race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.

In addition, applicants or employees cannot experience discrimination because they have discussed their compensation or the compensation of others. Contractors and subcontractors also can not retaliate against applicants or employees for engaging in protected activities. These laws also require that federal contractors provide equal employment opportunity through affirmative action. For more information, individuals can call OFCCP’s toll-free helpline at (800) 397-6251 or visit https://www.dol.gov/ofccp/.

Employer Takeaways

Although the Executive Orders mentioned in this blog cover federal contractors, all employers need to take anti-discrimination training seriously. If your workplace has 15 or more employees, Title VII of the Civil Rights Act explicitly prohibits discrimination in the workplace on the basis of race, religion, national origin, and sex. Many states and local governments, however, also have anti-discrimination training laws in place for employers with fewer employees. Employers need to investigate which, if any, state-specific anti-discrimination laws they need to follow, and make sure that all employees are fully trained on the workplace’s discrimination prevention policies and procedures.

On October 6^th, 2020, the U.S. Department of Labor (DOL) issued an Interim Final Rule (IFR) amending prevailing wage regulations. Specifically, the final rule helps protect wages and job opportunities by reforming the methodology used in several foreign worker programs.

 Overview of the Interim Final Rule

The IFR is the result of an extensive review of the DOL’s Permanent Employment Certification, H-1B, H-1B1, and E-3 Visa programs. After the review, the DOL determined that the existing prevailing wage methodology under the programs could lead to potential abuses. In some cases, these abuses could undermine the wages and job opportunities of U.S. workers. Put simply, many employers could hire foreign workers at a far lesser rate than domestic workers. The agency was also concerned that the effects of COVID-19 on the U.S. labor market would increase these events.

According to the DOL, the IFR improves the accuracy of prevailing wages paid to foreign workers by doing the following:

• Brings the prevailing wages paid to foreign workers more in line with wages paid to similarly employed U.S. workers; and
• Removes economic incentives currently in place to hire foreign workers on a permanent or temporary basis over American workers.

Requirements Under the Interim Final Rule

Under the IFR, there are some rules that employers must follow. When hiring a worker under an H-1B, H-1B1, or E-3 visa, employers must attest that they will:

• pay nonimmigrant workers the higher of the prevailing wage; or
• pay the actual wage currently paid to other employees with similar experience and qualifications.

If an employer seeks to hire an immigrant under an EB-2 or EB-3 classification, they must follow additional specific rules. Firstly, employers would need to try and recruit U.S. workers for the position using the DOL prevailing wage.  Secondly, if there are no willing, available, and qualified workers, employers must pay any hired foreign workers the same prevailing wage.

The rule went into effect on October 8^th, 2020. Enforcement falls under the DOL’s Employment and Training Administration. This IFR comes after other guidance was recently released by the DOL on various subject matters. Those topics include new OSHA workplace guidance on COVID-19 and revisions to Family and Medical Leave Act notices and forms.

 Employer Takeaways

When hiring foreign workers, employers need to follow the prevailing wages dictated by the DOL for specific positions. Those who employ foreign workers should consult with appropriate legal counsel to determine if the company’s hiring policy complies with the rule. Failure to comply with the new IFR could lead to possible hefty fines and lawsuits as dictated by the DOL.

On September 30^th, 2020, the U.S. Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA) announced the publication of additional COVID-19-related frequently asked questions and answers (FAQs). The new FAQs discuss the need to report employees’ in-patient hospitalizations and fatalities resulting from work-related cases of the coronavirus. As reported in June, OSHA has been updating these FAQs with new information since the beginning of the global pandemic.

Contents of the New FAQs

The FAQs provide information to help employers apply existing injury and illness recording and reporting requirements to the current pandemic. In particular, the FAQs provide guidance on how to calculate reporting deadlines for in-patient hospitalizations and fatalities. The FAQs also clarify the meaning of the term “incident” as it relates to work-related coronavirus in-patient hospitalizations and fatalities.

The following questions are in the new addition:

• How do I report the fatality or in-patient hospitalization of an employee with a confirmed, work-related case of COVID-19?
• An employee was previously hospitalized with a work-related, confirmed case of COVID-19. Do I need to report this to OSHA?
• An employee has died of a work-related, confirmed case of COVID-19. Do I need to report this fatality to OSHA?

This information is OSHA’s latest effort to more information on how it enforces standards and regulations during the pandemic. OSHA has also previously published revised enforcement guidance detailing how OSHA enforces recordkeeping requirements for coronavirus illnesses. For more COVID-19-related information, employers can visit OSHA’s COVID-19 webpage.

Employer Takeaways

Under the Occupational Safety and Health Act of 1970 (OSH Act), employers are responsible for providing safe workplaces for employees. Under this latest guidance from OSHA, employers have the responsibility of properly reporting work-related case of COVID-19 to the agency. According to OSHA, this will help keep workers safe from the possibility of infection and injury. By following these guidelines, employers will be in compliance with OSHA injury recordkeeping requirements and avoid possible fines and penalties.

September 30^th, 2020, was the last day that California Governor Gavin Newson could sign bills passed by the state legislature. On that day, Newsom signed two diversity bills into effect addressing state racial injustice. These bills closed a busy California legislative season that saw more than 30 employment-related laws also signed by the governor. Previously signed bills include those addressing independent contractor designations, expanded paid sick leave, and COVID-19-related employment laws.

Diversifying Company Boards of Directors

Assembly Bill (AB) 979 requires publicly-held California corporations to diversify their boards of directors with “directors from underrepresented communities.” This needs to take place by December 31st, 2021. AB 979 is similar to California Senate Bill (SB) 826, signed into law in 2018. SB 826 requires publicly-held corporations headquartered in California to include women on their boards.

 Under AB 979, a “director from an underrepresented community” is an individual who self-identifies as:

• Black,
• African American,
• Hispanic,
• Latino,
• Asian,
• Pacific Islander,
• Native American,
• Native Hawaiian, or
• Alaska Native.

Those who self-identify as gay, lesbian, bisexual, or transgender are also included in the definition.

Foreign and domestic publicly-held corporations with executive offices in California also must comply with AB 979. Those companies must have at least one director from an underrepresented community on their boards by December 31st, 2021.  Similarly, by December 31st, 2022:

• Boards with nine or more directors must have a minimum of three directors from underrepresented communities.
• Boards with more than four but less than nine directors must have a minimum of two directors from underrepresented communities.

Corporations may increase the number of directors on their boards to comply with the requirements listed above.

Starting March 1st, 2022, the California Secretary of State will publish annual reports documenting compliance with these diversification requirements. Companies that fail to comply are subject to fines of $100,000 for the first violation and $300,000 for subsequent violations.

Pay Data Reporting

In an attempt to reduce gender and racial pay gaps, SB 973 was also signed into law. Beginning in 2021, certain California employers have to collect information on employee pay data by gender, race, and ethnicity. The information is then submitted annually to the California Department of Fair Employment and Housing (DFEH).

Specifically, the new law covers:

• Employers with 100 or more employees; and
• Employers that must file an annual Employer Information Report (EEO-1) under federal law.

The annual report submitted to the DFEH must include the number of employees (and the hours they worked):

• By race, ethnicity, and sex;
• In each of the Job Categories in the federal EEO-1 Report; and
• Whose annual earnings fall within the pay bands used by the U.S. Bureau of Labor Statistics.

Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees. The first report is due on March 31st, 2021.

Employer Takeaways

Even though the laws discussed are specific to California, employers in all states should be familiar with possible diversity and anti-discrimination laws affecting them. California employers covered by these laws should review and revise their policies on diversity and inclusion, if needed. Employers should also address any questions stemming from these new laws with their legal counsel.

During the global COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) has issued guidance to keep workers safe. On September 22^nd, 2020, the CDC released an update to previous guidance on reopening closed buildings.

Overview of the Update

As the CDC explains, the shutdown of a building can create hazards for returning occupants. Many of the issues are due to the reduction of previous normal water use in the workplace. When water is stagnant in pipes for a prolonged period, hazardous material can begin to form. The previous version of the guidance discussed the potential hazards created by Legionella in water systems. In the new release, the CDC has added information on addressing lead and copper that could be in water systems. Lead and copper contamination can occur in pipes that are not coated to prevent metal leaching into water. Depending on the water system, “prolonged period” could mean weeks or months, or potentially even days of reduced usage.

Examples of ways to reduce lead and copper in drinking water, according to the CDC, include:

• Testing water for lead;
• Cleaning sink faucet screens; and
• Using lead filters properly.

The CDC guidance also includes information on:

• mold awareness, monitoring, and remediation during and after prolonged building shutdowns;
• updates to the Legionella guidance for people with weakened immune systems; and
• recommendations for the use of respiratory protection when flushing out water systems.

In order to keep employees safe, the CDC also recommends that employers have possible hazards examined prior to reopening.

Employer Takeaways

In pipes that are not used for a prolonged time, lead, copper, mold, and Legionella can begin to form. The use of stagnant and infected water can seriously harm individuals, perhaps even leading to death. Under the Occupational Safety and Health Act’s General Duty Clause, employers need to provide workplaces that are free of hazards. Prior to reopening any previously closed businesses, employers should consult with building owners to have the water supply tested. If levels of lead, copper, mold, or Legionella are high, employers need to address the hazards before reopening occurs.

On September 23^rd, 2020, the White House released Executive Order (EO) 13950. Signed the day prior, the EO (“Combating Race and Sex Stereotyping”) covers government contractors and certain grant recipients. The legislation limits diversity, inclusion, sexual harassment, and related equal employment opportunity (EEO) training that contractors provide to employees. This EO comes a little over a month after President Donald J. Trump signed four COVID-19 related EO’s into effect.

Overview of Executive Order 13950

As mentioned, EO 13950 covers all federal contractors and subcontractors. According to the National Law Review, the order requires contracting agencies to insert a clause in any new contracts (beginning November 21^st, 2020) for training purposes. This clause requires that workplace training does not “inculcate[s] in its employees” with any form of race or sex stereotyping or any form of race or sex “scapegoating.” Examples of this stereotyping includes that:

• One race or sex is inherently superior to another race or sex;
• An individual is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
• An individual should discriminate against another or give adverse treatment because of their race or sex
• Members of one race or sex should not attempt to treat others without respect to race or sex;
• An individual’s moral character is necessarily determined by their race or sex;
• An individual bears responsibility for actions committed in the past by other members of the same race or sex;
• Any individual should feel discomfort or any other form of psychological distress on account of their race or sex; or
• Traits such as a hard work ethic are racist or sexist, created to oppress specific races.

Notice Requirements and Enforcement

EO 13950 also requires that contractors and subcontractors post a notice (provided by contracting agencies), directed to employees and applicants. This notice would dictate the contractor’s commitments under the EO. Any labor union with which the contractor has a collective bargaining agreement must also receive the notice.

The Office of Federal Contract Compliance Programs (OFCCP), which would be the enforcement agency for these new requirements, will publish a request for information (RFI) by October 22^nd, 2020.  The RFI would seek information from federal contractors and subcontractors regarding any related training provided to employees. The EO, however, does not discuss what the OFCCP needs to do once it collects the information.

Employer Takeaways

If EO 13950 is fully implemented, it would mean significant changes in the content of race and sex training. Many of these topics, including diversity, inclusion, etc. have become common training subjects for many employers. In fact, some federal or state laws require some of the subject matter that has been “banned” in the EO. Due to that, legal challenges to this Executive Order are likely. Affected employers need to stay informed over the next couple of months for any changes to the status or content of Executive Order 13950 and adjust their training programs accordingly.

In response to the continuing global coronavirus pandemic, National Labor Relations Board (NLRB) General Council Peter Robb released guidance on the NLRB’s current stance on labor law violations. Issued on September 18^th, 2020, General Council Memo 20-14 summarizes the types of COVID-related complaints that the agency has pursued since March 2020. In the vast majority of these cases, the NLRB makes it clear that traditional National Labor Relations Act (NLRA) rules apply, even during COVID-19. This guidance is similar to a September 2020 release from the Occupational Safety and Health Administration (OSHA). In that release, OSHA reported that they are citing employers for COVID-19 related safety complaints and violations.

Protected Concerted Activity

If employees express concerns about workplace safety with or on behalf of co-workers, protected concerted activity is in practice. Section 7 of the NLRA covers this topic. Memo 20-14 references two matters when employees spoke up about the employer’s response to COVID-19 and subsequently faced adverse action. Section 7 includes the following concept: if employees present concerns about terms and conditions of employment, it is unlawful for the employer to discipline them because of that activity. This includes circumstances related to COVID-19. It is also unlawful to coerce or threaten employees into ceasing such conduct. Requiring employees to discuss their concerns “one-on-one” rather than as a group is also in violation of the NLRA. Employers also need to remember that Section 7 applies in both union and non-union environments.

Discretionary Staffing Decisions

Memo 20-14 also includes two cases where the NLRB believes the employer used COVID-19-related layoffs to hide anti-union feelings. In one case, the employer laid off both members of a two-person bargaining unit, purportedly because of the pandemic. Other evidence, however, suggests the employer wanted to eliminate the unit. In another case, the employer recalled a portion of its previously laid off staff. The employer then appeared to grant preferential treatment to employees who did not support the union. If proven, the allegations in either case would violate the NLRA’s anti-discrimination provisions.

Collective Bargaining

The NLRB has stated that certain emergency situations may suspend or alter an employer’s duty to bargain with a union.  In Memo 20-14, however, the General Council discusses cases where government orders and economic stressors do not relieve bargaining obligations.

• In one matter, a school operations employer switched to remote learning without bargaining because of a state order. The NLRB determined that initial change was appropriate. They also found that the employer had a duty to bargain over the decision within a reasonable period of time.
• In another case, the General Counsel recommended allegations against an employer for eliminating employee health insurance and vacation leave balances. This was because, according to the employer, of uncertainty caused by the pandemic. The employer was also operating at a monthly loss and lost about 60% of its revenue. The General Council, however, still determined the employer had a duty to bargain over the changes.
• Finally, in another case, an employer stopped bargaining over a collective bargaining agreement because of COVID-19. The memo suggested that the pandemic did not privilege the employer to stop bargaining. This includes situations when the sessions are on teleconference rather than in-person.

Employer Takeaways

Even though Memo 20-14 does not establish new laws, it is a good reminder of employer obligations during the pandemic. All affected employers should operate under the correct premise that COVID-19 has not changed any aspect of the NLRA. If an employer has questions regarding possible COVID-19 related compliance issues, they should consult legal counsel.