Aspiring employment lawyers ask questions of their mentors. Try this one: Did you ever go to trial on a wage and hour class action?
The answers—ranging from “no” to “almost but …” and “rarely” to “once”—reveal an important truth: Employment lawyers handling class actions better know the inner workings of getting class settlements approved.
Writing for Law360, McDermott partner Christopher Braham examines how approval triggers play a role in employment class actions.
The Department of Labor (DOL) made inflation adjustments to a wide range of penalties for Employee Retirement Income Security Act (ERISA) violations by employee benefit plans and plan sponsors. The new penalty amounts that apply in 2021 are included herein.
Businesses strive to draw the line correctly on who is an employee versus who is an independent contractor. New regulations issued by the Department of Labor (DOL) in early January promised to help. See, 29 CFR §§795.100. But by late January, those regulations under the Fair Labor Standards Act (FLSA) were frozen.
Unlike laws passed by Congress, administrative regulations are far more easily altered when a new president takes office. The regulations published by President Trump’s DOL in January had an effective date of March 8, 2021. Now, President Biden’s DOL will have an additional 60 days beyond that effective date to announce what will happen next.
Those new regulations provided a much simpler test for classifying workers. While including five factors, the results turned on two of those factors: (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit/loss based on personal initiative or investment. Most significantly, those regulations focused on the actual practices, rather than what may be possible.
This same issue may also arise under other federal statutes as well as state laws, including those governing on whom unemployment insurance taxes must be paid. With multiple statutes (each with its own distinctive test), drawing the line between independent contractors and employees correctly turns not only on meeting whatever the ultimate FLSA test turns out to be.
The most difficult is the so-called ABC test:
That is the test that is embedded in proposed federal legislation: the Protecting the Right to Organize (PRO) Act. That is also now the official test for most jobs under most California laws.
The patchwork of teleworking guidance issued by states during the COVID-19 pandemic is creating withholding challenges for employers that could be unconstitutional, according to tax practitioners.
In a recent article in Tax Notes, McDermott partner Alysse McLoughlin outlined employer tax concerns amid an increasingly remote workforce.
Last year ended as an unprecedented and historic year, with far-reaching effects across diversity, equity and inclusion, employment practices and workplace standards. In a recent article for International Law Office, partners from McDermott’s Employment group highlight what changes are expected in 2021 and how these may affect employers and employees.
Can employers make COVID-19 vaccination mandatory?
Yes, with some exceptions. Experts say employers can require employees to take safety measures, including vaccination. That doesn’t necessarily mean an employee would get fired if they refuse, but they might need to sign a waiver or agree to work under specific conditions to limit risk.
With vaccine rollout underway in the United States, McDermott partner Michelle Strowhiro outlines considerations for employers in a recent article for The Associated Press.
In September, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into effect in the United Kingdom. The Regulations, together with earlier updates from the Government of the United Kingdom, require office workers who can work “effectively” from home to do so over the winter. What’s more, potential criminal liability attaches to any employer failure to comply with the Regulations.
California’s Division of Occupational Safety and Health (Cal/OSHA) adopted emergency temporary standards on COVID-19 prevention in the workforce, effective as of November 30, 2020, following approval by the Office of Administrative Law. These temporary standards require most Californian employers to implement a written COVID-19 prevention program meeting certain criteria. While many employers have already followed Cal/OSHA guidance to minimize employees’ exposure to COVID-19, the new requirements warrant an immediate review of current policies to ensure compliance. For any companies that have not yet created a written plan, the rules require implementation of a written policy.
Writing for International Law Office, McDermott partners Ellen Bronchetti and Michelle Strowhiro break down the details of Cal/OSHA’s new standards.
As the first doses of the COVID-19 vaccine are administered in the United States, employers have much to consider with regard to mandating the vaccine for their employees.
The freelance space, one of the few sectors to thrive as a result of the COVID-19 public health crisis, has seen a surge of openings, especially with the shift to remote work. But the blurred new reality can be bad for freelancers: An employer can have two workers doing essentially the same job, and sometimes what differentiates them is not what they turn in or the gains they make for the company but rather their earnings and insurance status, potentially putting a contractor in a disadvantaged position.
In a recent article from Durrelliot, McDermott partner Michelle Strowhiro explains the importance of establishing clear boundaries for freelancers and employees alike in the era of “working from home.”
Subscribe
