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Summary of Answers at 8 on September 30, 2020

Recent Legal Updates: 

The DOL’s Joint Employer Rule Struck Down

  • Earlier this year, the DOL attempted to narrow the standards for a joint employer. This rule was overturned (although the DOL may appeal).
  • This means employers with temporary agency staff and franchisees should revert to previous decisions.
  • 2015 case law provided that a joint employer’s right to control terms and conditions of employment, even if not exercised, may deem a company a joint employer.
  • Joint employment can affect responsibilities on the part of multiple employers for protecting worker safety, responding to and protecting employees from discrimination and harassment, complying with FMLA, and other legal requirements. In some cases, it may require that a joint employer be involved with bargaining with labor unions, which is what happened in 2015 in the Browning-Ferris case.

New Executive Order on Discrimination Training

  • Trump’s Executive Order on Combating Race and Sex Stereotyping focuses on “race or sex scapegoating” in diversity training by or for federal contractors or subcontractors.
  • Assigning blame for discrimination against women solely to men would be an example of an off-limit concept (most diversity training assigns blame to systems versus a particular gender/race which seems to be acceptable in the language).
  • There are eight specific training concepts that should be reviewed in contractor training (see link above). Some examples are the concepts that “someone by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously”; and that “meritocracy or traits such as a hard-work ethic are racist or sexist, or were created by a particular race to oppress another race.”

Unemployment: 

Length of Unemployment Benefits Decreasing:

  • Due to the overall unemployment rate decreasing, the federal “extended benefits” will reduce to six instead of 9.6 weeks.
  • This also means that the PUA (Pandemic Unemployment Assistance) program will have a maximum duration of 39 weeks.
  • We will be updating our Unemployment FAQ in the coming days to reflect this change.

Weekly increase through HB 1105 (NC) will be processed late October.

  • Review: Governor Cooper signed House Bill 1105, increasing the UI maximum weekly benefit (from $350 to $400) and the benefit amount by $50.00 for weeks on/after September 5th until December 26th or until the week after funding is exhausted.
  • The DES is in the process of integrating this addition into their system, so the increased amounts will be retroactive, but will not be seen until late October.
  • This is in addition to the extra $300 weekly benefit grants from FEMA.

Other topics covered in this week’s Answers at 8:

Expense Reimbursement

For many employers, a short-term fix is turning into a long-term way of doing business. If you haven’t reviewed your expense policies, it’s time to take a look:

  • State laws vary – you may be required to reimburse ANY expenses incurred from a remote worker as a “reasonable and necessary part” of the discharge of their duties…even if they lose their receipt!
  • Under North Carolina and federal law, it is important not to allow the employee to incur expenses that take them below minimum wage.
  • A blanket reimbursement will be taxed as wages.
  • To avoid employment taxes, estimate reimbursement accurately and require receipts if possible.

Promoting Candidates Versus Encouraging Voting

The presidential election is upcoming – bear in mind these tips:

  • Encouraging voting is a positive step that employers can take; you can also provider websites and information. Many employers are allowing time off or time off with pay.
  • Some states (not North Carolina) require you to pay or at least permit leave for voting, so do not put out a blanket statement without checking state law.
  • While political views are not a protected EEOC category, they may be for certain federal, state or local government employees or other public sector employers.
  • If you are a religious organization, your tax-exempt status requires you to avoid promoting parties or candidates.
  • From an employee relations perspective, avoid promoting a particular party or candidate. If you must advocate, focus on laws and influencing lawmakers’ judgments on particular topics.

COVID-19 Updates:

NLRA (National Labor Relations Act)

While the NLRA is especially relevant to unionized organizations, it also applies to ALL employers. Concerns about safety, wages, benefits and other areas may be protected speech.

  • NLRA protects rights of employees (not supervisors) to engage in “concerted activity” – acting together for their mutual aid/protection.
  • In COVID times, this may mean concerns related to safety, telework, leave or other benefits.
  • This activity may be in-person or online, and if an employee is acting concertedly (versus complaining specifically about their own personal grievances unrelated to others), companies should call CAI before taking any kind of negative employment action which could be seen as retaliation.

Lawsuits Related to COVID-19

The number of lawsuits has steadily risen across the US. The most common claims alleged are:

  • retaliation
  • unsafe workplace
  • disability discrimination
  • wage & hour
  • denial of leave
  • wrongful discharge
  • race/national origin discrimination
  • age discrimination
  • RIFs/WARN Act

In North Carolina, so far there are only three cases—in the construction and retail industries—and all related to FFCRA/FMLA leave:

  • Failure to provide paid sick leave under FFCRA or state law
  • Interference with FFCRA/FMLA leave
  • Retaliation for requesting/using FFCRA/FMLA leave
  • Breach of contract

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