Category Archives: Employment Law
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Client Alert: New D.C. Law Narrows the Sweeping Ban on Non-Competes
Following harsh criticisms from the local business community, the D.C. Council has enacted an amendment to the near-total ban on non-competes that was set to go into effect. The amended law, which goes into effect October 1, 2022, prohibits D.C. employers from imposing non-compete provisions on individuals who are not highly-compensated employees. A more detailed look at the amendment is ... Read More
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Court Limits Retirement Benefits For Those Who Received Civil-Service Pay
David Babcock was a dual-status military technician, which meant he received both military pay and pension payments through his service with the National Guard, and also received civil-service pay from the Office of Personnel Management. After he retired, he applied for Social Security benefits. The Social Security Administration considered his civil-service pay to be a “windfall” and reduced his SSA ... Read More
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DC to Mandate Proof of Vaccination Status at Indoor Establishments- UPDATE
UPDATE: On Monday February 14, 2022, Mayor Bowser announced that, effective Tuesday February 15, 2022, DC will drop the requirement that patrons show proof of vaccination status before entering most businesses. On December 22, 2021, Mayor Muriel Bowser announced, via executive order, that the District of Columbia would join other major cities including Los Angeles, New York, Philadelphia, ... Read More
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Considerations for Employers Mandating Vaccines in a Post-EUA World
The FDA’s recent approval of the Pfizer-BioNTech COVID-19 vaccine has ushered in a new wave of employer vaccine mandates. Private employers had the right to impose such mandates even when the three vaccines available in the U.S. – Pfizer, Moderna, and Johnson & Johnson – were available only under emergency use authorization (EUA). This was made clear by a memorandum ... Read More
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On a Holiday: Juneteenth and Workplace Diversity & Inclusion
Every year the summer months bring the promise of warm weather, vacations, and the annual commemoration of America’s most important and nationally recognized holiday, Independence Day, July 4. While July 4 is always met with much media interest and news coverage, last year its equally important sister holiday, June 19 or Juneteenth, garnered widespread national attention. Set against the backdrop ... Read More
TAGGED: Employment Law, Diversity & Inclusion, Juneteenth
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Employer-Mandated COVID-19 Vaccines: Tips, Pitfalls, and Other Considerations
President Joe Biden recently announced that all adult Americans will be eligible for a COVID-19 vaccine by April 19. That day has arrived, and all 50 states now allow all adults age 16 and older to register for the vaccine. As the pace of vaccinations continues to accelerate, and case numbers appear to be stable in most regions of the ... Read More
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Client Alert: Sweeping Changes to Virginia’s Employment Laws
The Virginia legislature enacted a series of sweeping employment laws, all but one of which went into effect July 1. These changes affect employers and employees in many sectors of the economy, bringing about reforms that have long been sought by progressive activists and labor interests. A primer for Virginia employers is below: Non-Competes Following the lead of its more progressive sister ... Read More
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Face Coverings in the Workplace: 5 Lessons You Need to Know
As more businesses reopen and workers – many wearing face masks – return to in-person interactions with co-workers, customers and clients, here are five things that every worker should know about face masks in the workplace. What are the different types of face coverings and masks? Generally, there are three categories of face coverings and masks: cloth face coverings, surgical masks, ... Read More
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Client Alert: OSHA Changes Guidance for Reporting Cases of Coronavirus (COVID-19) in the Workplace
On May 19, the Occupational Safety and Health Administration announced changes to its previously issued guidance on reporting COVID-19 in the workplace, effectively reversing its six-week old policy which allowed a lesser standard of inquiry for employers outside the health care industry, emergency response organizations and correctional institutions. OSHA’s new guidance demands that all employers conduct investigations of all COVID-19 ... Read More
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Client Alert: OSHA Issues Guidance for Reporting Cases of Coronavirus (COVID-19) in the Workplace
Please Read: As of May 26, 2020, OSHA's revised enforcement guidance is in effect and the below information may be outdated. Please see Mr. Kelleher's detailed analysis of what has changed in the new guidance here. The Occupational Safety and Health Administration recently confirmed that COVID-19 in the workplace is a recordable illness and must be reported to the government ... Read More
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Welcome Back to Work! Here’s a Swab Test and a Questionnaire about Your Health (Gastrointestinal Issues Included)
As states begin easing COVID-19 restrictions and allowing employees to return to work, both employers and workers are reckoning with countless new concerns the return to normalcy presents. For employees, the questions focus largely on safety. What if I catch the virus from an asymptomatic coworker? Why is my coworker coughing? Do I still have to come in if I’m immunosuppressed? ... Read More
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Emergency COVID-19 Legislation Requires D.C. Employers to Comply with New FMLA and Sick Leave Requirements
While much attention has been paid to leave benefits made available under the federal Families First Coronavirus Response Act (“FFCRA”), the corresponding legislation enacted by the Council of the District of Columbia has gone largely unnoticed. However, the District’s orders contain a different set of requirements, and failure to comply could have serious implications for D.C. employers. D.C. employers should be ... Read More
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Families First Coronavirus Response Act
On March 18, 2020, the 118th Congress of the United States signed into law the Families First Coronavirus Response Act, which will go into effect on April 2, 2020. The primary details of this newly enacted law are as follows: EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT (Section 3101) Applies to employers with fewer than 500 employees, but more than 25 ... Read More
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SCOTUS Opinion: No Pre-emption for States to Use Federal Immigration Information to Enforce State Identity Theft Law
Under federal law, employers must verify, through an I-9 form, that they have “verified” that each new employee “is not an unauthorized alien.” In Kansas v. Garcia, three persons who were living in the United States illegally used the same false Social Security number on their I-9 forms, as well as their tax withholding forms, and were prosecuted under ... Read More
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SCOTUS Opinion: Court Strictly Interprets “Actual Knowledge” For ERISA Limitations Period
Under the Employee Retirement Income Security Act of 1974, a person with “actual knowledge” of an alleged fiduciary breach by the administrator of a pension plan must file suit within three years of gaining such knowledge—otherwise, a six-year limitations period applies. In Intel Corp. Investment Policy Committee v. Sulyma, Intel argued that its former employee filed such a claim ... Read More
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SCOTUS Opinion: Court Enforces Removal Jurisdiction In Vacating Orders Against The Catholic Church
The case of Roman Catholic Archdiocese of San Yuan, Puerto Rico v. Feliciano concerned complaints filed by employees of Catholic schools in Puerto Rico alleging wrongful termination of their pension plan. Initially, the Puerto Rico trial court determined that the Roman Catholic and Apostolic Church in Puerto Rico was the proper entity that owed obligations to the plan, and ... Read More
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Employers Receive Additional Guidance with the New Department of Labor Rule, Making It Easier to Avoid Classification as a Joint-Employer
The Department of Labor issued a final rule on January 12, 2020 regarding the interpretation of joint employer status under the Fair Labor Standards Act (FLSA). The FLSA requires employers to pay employees the federal minimum wage for every hour worked and to pay overtime for every additional hour worked over 40 during a workweek. Liability for making such payments falls ... Read More
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SCOTUS Opinion: ERISA Case Remanded To Consider Alternative Arguments
Retirement Plans Committee of IBM v. Jander concerned a claim by Employee Retirement Income Security Act of 1974 (ERISA) plan beneficiaries that the fiduciaries in control breached their duty of prudence on the basis of insider information. The standard for stating such a claim had been previously set forth by the Court in Fifth Third Bancorp v. Dudenhoeffer, ... Read More
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SCOTUS Opinion: Court Holds Outer Continental Shelf Lands Act Preempts State Employment Law
Brian Newton worked on a drilling platform off the California coast, where his employer paid him for time on duty but not for his time on standby, when he could not leave the platform. He filed a class action in California state court, arguing that state law required the employer pay for standby time. The employer removed the case to ... Read More
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SCOTUS Opinion: Ambiguous Arbitration Provision Not Sufficient To Compel Class Arbitration
In a 2010 case, the U.S. Supreme Court ruled that a court could not compel class arbitration under the Federal Arbitration Act when the agreement was silent on that issue, since class arbitration was fundamentally different from “traditional individualized arbitration.” In Lamps Plus, Inc. v. Varela, the arbitration provision did not expressly state that the parties agreed to ... Read More
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Changes to Paid Leave Policy Go into Effect for District of Columbia Employers
Employers in Washington, D.C. have been waiting for the Universal Paid Leave Amendments Act of 2016 (the Act) to go into effect. Much to the chagrin of many small employers, that time is here. The Act creates a mandatory, employer-funded, paid leave program, which provides up to eight weeks of paid leave to covered employees working in the District of Columbia ... Read More
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Department of Labor Proposes New Overtime Rules
Employers will recall during the Obama administration that the salary threshold for determining overtime eligibility under the Fair Labor Standards Act was changed from $23,660 per year to $47,476.00 per year. Many employers modified their own employment policies to meet the new standard despite the federal regulations never being implemented due to a successful court challenge. The Trump administration has ... Read More
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SCOTUS Opinion: Lost Wages Awarded Under Railroad Retirement Tax Act Are Compensation Subject To IRS Taxation
Michael Loos was injured while working for BNSF Railway Company. He sued his employer, and after trial was awarded $85,000 in pain and suffering, $11,212.78 in medical expenses, and $30,000 in lost wages as a result of him not being able to work from the injury. BNSF then argued that the lost wages award was “compensation . . . for ... Read More
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Private Arbitration Agreements Preclude Employee Class Actions
In Epic Systems Corp. v. Lewis, employees sued their employer in a class action for violation of the Fair Labor Standards Act. Those employees each had signed an agreement to arbitrate employment disputes under the Federal Arbitration Act, and the employer invoked those agreements to preclude the class actions. The employees argued that the National Labor Relations Act triggered ... Read More