How The Regulation Is Grappling With Free Expression, COVID-19, Range, And Extra – Employment and HR
Between COVID-19, last year’s racial justice demonstrations, and a new president, there are many legal issues that employers may need to consider or reconsider.
A quartet of Ward and Smith attorneys highlighted some changing and newly relevant areas of labor law for the Rapid Fire Legal Update Panel during the firm’s 2021 virtual labor law seminar.
They looked at the federal regulators’ new approach to certain safe employee behavior, the status of guidelines for independent contractors, COVID-19-related employment practices, and diversity, equity and inclusion in the workplace.
New sheriff in town
Grant Osborne, an employment law attorney who advises companies and handles litigation, opened the discussion by examining a new federal regulatory priority.
The General Counsel of the National Labor Relations Board (NRLB), the authority responsible for the enforcement of the National Labor Relations Act (NRLA), has issued a memorandum refocusing on Section 7 of the Act.
“While North Carolina is one of the lowest unionized workers in the country,” says Osborne, “this law applies to virtually everyone [private
§ 7 NEAT protects the right of employees to joint activities for the purpose of mutual help or protection. These activities, Osborne says, can include discussions, social media posts, and other forms of communication about employment conditions.
It effectively covers many potential areas of political and social expression related to the workplace, he says. For example, the law could cover discussions between employees – or with others – about “social issues”.
According to Osborne, this means that workers can campaign for an increase in the minimum wage or discuss their own employment experiences (good or bad) with journalists.
The agency says that “cases involving retaliation against concerted behavior by employees will be vigorously pursued,” Osborne quoted the memo as saying.
“The General Counsel’s NLRB office is essentially throwing down a gauntlet and saying, ‘We haven’t forgotten this doctrine of mutual help and protection,'” he says.
Independent contractor updates
The Independent Contractor Status Act has long been burdened on employers who could face additional liabilities if they mistakenly classify an employee as an independent contractor.
“They open up to all kinds of problems,” says Will Oden, an employment law attorney who litigates and advises clients. Misclassified employees are likely to be owed services that contractors are not and have additional legal rights.
For example, if a company incorrectly classifies an employee as an independent contractor, the company’s employee compensation fund will likely refuse to defend the company against claims for damages made if that employee is injured. In addition, the same misclassified worker injured on the job cannot be limited to only making an employee compensation claim against the company. In any event, this could result in significantly higher levels of commitment and liabilities for the company.
Oden told attendees about the fate of recent efforts to change federal guidelines and what future changes might be considered depending on the political winds in Washington. The Trump administration previously proposed changes to guidelines for determining independent contractor status. The changes were due to go into effect in March 2021, but the Biden administration suspended these efforts.
According to a press release from the Biden administration announcing the halt to proposed changes to the Trump administration, Oden quoted:[t]The division believes that the rule is inconsistent with the standards and purpose of the Fair Labor Standards Act and would have a confusing and disruptive impact on workers and businesses due to its departure from long-standing and judicial precedents.
So, at least for now, companies have yet to evaluate a long list of factors to determine whether an employee is truly an independent contractor. Ultimately, however, how much control the company has over the employee determines whether the employee should instead be classified as an employee.
However, that doesn’t mean these independent contractor guidelines won’t change at some point, says Oden. President Biden has stated that he supports the “ABC” test, which is already established in California. According to the California ABC rule, an employee is an employee unless they meet all three of the following standards:
- Be free from the control and direction of the employer.
- Completion of tasks outside the normal business operations of the hiring company.
- Usually active in an independently established trade, profession or business.
Categorizing a worker in California as a self-employed contractor is certainly “a more difficult burden,” Oden notes. But outside of California, it’s not yet the law of the country.
COVID complexities in labor law
Although many people have been vaccinated and many states have COVID-19 restrictions, such as
Hayley Wells, a labor law litigator, said many employers are considering vaccine mandates. Are they legal
Wells says, “The answer is yes, but …”
Employers need to consider what they will do if workers refuse to be vaccinated.
“Consider what you will do in a situation where an employee cannot or refuses to receive a vaccine for a disability under the Americans with Disabilities Act (ADA), or because it is contrary to a genuine religious belief,” says they.
For an ADA application, employers must go through an interactive process to gather more information about the worker’s disability and to see if there is reasonable accommodation that would allow the individual to perform their essential work functions.
If work had been done remotely during the pandemic, teleworking would likely be considered a reasonable accommodation, even if a company prefers to have workers in the office.
“If an employer is now in a position where teleworking is no longer a viable option or where housing is no longer possible, it will likely be viewed as unreasonable,” Wells says.
For workers requesting a religious exemption, employers should try to accommodate them, as long as it does not constitute undue hardship. Housing that is too expensive would compromise workplace safety, compromise efficiency, or demand more than their fair share of other employees.
Wells says many employers choose to encourage their workers to get vaccinated, or even reward them, but don’t require them.
In contrast, some employees may fear returning to work due to COVID-19 concerns. In some cases, employers may be able to provide information about the steps they are taking to ensure safety and address these concerns. In other cases, anxiety could build to the point that an ADA review and potential adjustments are required.
Another option, Wells says, could be the Family and Sick Leave Act [FMLA] Vacation or even paid time off in some cases.
The case for DEI
The pandemic wasn’t the only major social event in 2020 that changed the relationship between workers and employers. Racial justice demonstrations sparked by several high-profile police killings of blacks have grown into a broader push for social justice, says labor and employment attorney Xavier Lightfoot.
Many companies have made public commitments to support this movement in their own organizations and in the communities in which they operate, he notes, with diversity, equity and inclusion (DEI) a priority.
Lightfoot started by defining each term.
“Diversity is a representation of different people in a group with different characteristics – age, education, religion, ethnicity, and other characteristics. However, equality is a process that recognizes individual needs and takes into account that not everyone with the same opportunities, resources and circumstances as barriers exist in all societies. ”
“Ultimately, inclusion is focused on creating an environment in your company that is collaborative, respectful, and supportive of this diverse mix of individuals, where everyone feels safe, valued, and welcomed to do their bit.”
There is a strong business case for diversity. Lightfoot cited studies by consulting firm McKinsey & Co. that found that companies with greater diversity financially outperform their competitors. Companies using DEI practices have benefits in employee retention, innovation, branding and other areas, according to Lightfoot.
“This provides a very compelling business case for companies to prioritize diversity, equity and inclusion efforts.”
For companies looking to step up their DEI efforts, Lightfoot – who also holds a Diversity and Inclusion Certificate from Cornell University and is the Diversity, Equity and Inclusion Chair of the North Carolina Society for Human Resource Management – suggested three steps.
First, evaluate and evaluate the culture and HR processes of your company. What is your company doing in terms of recruiting, hiring, retention and development? Are there inequalities in these processes?
Second, invest in DEI.
“It starts internally,” says Lightfoot, with “the commitment of decision makers.” Many companies set up internal committees to lead DEI initiatives.
“This inclusion council can also help you develop a successful plan that you can promote and implement across your organization,” says Lightfoot.
Finally, companies should encourage inclusive participation. This may include setting up employee resource groups and finding ways to recognize differences in the workforce. Some of these efforts can be as simple as spotlighting current events like Women’s History Month in March.
“Highlight the things that happen in society,” says Lightfoot. Employee newsletters, company bulletin boards, and intranets can provide employers with every opportunity to communicate about diversity, equity, and inclusion efforts.
Lightfoot notes that there are a lot of DEI trainings out there, but “a lot of them are rubbish”.
“To implement effective DEI strategies in your company, you want to deliver comprehensive training that reflects your culture and mission,” he says. “The training is only effective and effective if you are able to connect the WHY behind the DEI strategies with your culture and mission as an organization.”
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