The Department of Labor (“DOL”) issued revisions to its Temporary Rule implementing the Families First Coronavirus Response Act (“FFCRA”) on Friday, September 11, 2020 (the “Revised Temporary Rule”). The Revised Temporary Rule was issued in response to the decision by U.S. District Judge J. Paul Oetken of the Southern District of New York on August 3, 2020 (the “District Court Decision”), which had vacated portions of the DOL Temporary Regulations under the FFCRA (“The Original…

Accurately tracking hours worked by non-exempt employees for purposes of overtime pay has always been an area of potential risk for employers.  The issue is thorny one because of how the federal Fair Labor Standards Act (FLSA) defines what constitutes compensable hours worked for minimum wage and overtime pay purposes.  The risk is magnified significantly when non-exempt employees work remotely and/or have access to their work e-mail and network resources outside their scheduled work hours.…

On Monday, August 3, 2020, U.S District Judge J. Paul Oetken of the Southern District of New York issued a Decision and Order striking down portions of the Department of Labor (“DOL”) regulations implementing the Families First Coronavirus Response Act (“FFCRA”). Particularly, the order vacated the following portions of the DOL regulations: The requirement that work is available to the employee as a condition of eligibility for FFCRA leave; the definition of “health care provider”;…

The National Labor Relations Board has restored a prior standard, one that had stood for about 80 years before being overturned in 2016, which governs an employer’s duty to bargain over employee discipline during the time period between when a new union is certified and a first contract is negotiated.  In 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), the Board reinstated the rule that employers…

The National Labor Relations Board has traditionally applied separate tests to evaluate whether employee discipline violated the National Labor Relations Act, depending on the context of the underlying misconduct. This has resulted in heightened protection for employee misconduct that takes place during the course of protected activity, such as strikes.  However, in General Motors LLC, the Board abandoned the context specific analysis to apply one consistent standard. Historically, the Board’s Wright Line standard is…

On July 16, 2020, the U.S. Department of Labor (“DOL”) released a series of new forms that can be used by employers and leave administrators related to the Family and Medical Leave Act (“FMLA”).  The DOL claims the new forms are simpler and easier to understand for employers, healthcare providers, and employees. Some of the more significant updates include the replacement of questions that require written responses with statements that can be completed by checking…

On July 8, 2020, in the consolidated cases of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania et al. and Donald J. Trump, President of the United States, et al. v. Pennsylvania et al., the U.S. Supreme Court ruled that employers can exclude coverage for birth control from their health care plans if they oppose contraception on moral or religious grounds. The Women’s Health Amendment to the Patient Protection and Affordable…