Third Quarter 2020

 

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In This Issue:

Quick Hits

OSHA Issues New Guidance

Department of Labor Issues New Guidance

Supreme Court Declines to Weigh in on Salary Issue

Who Should Return to Work on Site?

Workplace Trends

The Business Landscape – A Drastic Shift, and Great Uncertainty

The Workplace - On Pins and Needles

Links of Note

Mental Health

Anti-Racism

Strangest Thing We've Heard of Late

No Shortage

Published or Quoted Elsewhere:

Timing Works Out Well for Goldstein

Wisconsin Law Journal

Concealed Carry Concerns

Ozaukee Press

Packing Heat: Local Businesses Torn on Concealed Carry Law

Fox Point Patch

Social Media and the Workplace

(SBDC Front Page)

Are Unpaid Internships Legal?

(Dime Crunch)

Loose Lips Sink Ships – Things That Can Get Educators in Legal Hot Water!

(Teachers.Net Gazette)

The Focus on Misclassification

(SBDC Front Page)

Hiring in the New Economy

(SBDC Front Page)

Understanding and Bridging
the Generational Gap>

(WORK Spring, 2009)

What is the Role of an
Attorney on the Board?

(Compasspoint Board Café - February 28, 2008)

Also published in Blueavocado.org - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

After a break from our traditional quarterly newsletter in favor of a series of COVID-19-related updates, we return to our usual format – still very much focused on the pandemic and related economic and workplace issues, and with great uncertainty about what lies ahead.

To that end, we would very much like to hear from you. How’s business? What are you seeing and experiencing? How are your employees and customers reacting to any changes you have made? And if you have encountered a positive case, how has your team responded? Please share a few thoughts in an email to adam@goldsteinsc.com. (Responses will be held in confidence).

Quick Hits

OSHA Issues New Guidance

OSHA has issued new guidance on returning to work. Among other things:

  • Employers must conduct a thorough hazard assessment that examines the potential COVID-19 exposures for each job category and identifies protective measures.
  • Employers may perform daily temperature checks and health assessments of employees, but temperature screening “may have limited utility on its own.” Further, those performing the checks must be protected from possible infection. Asking employees to self-check at home may be more efficient, especially when paired with sick-leave policies that encourage workers to stay home if they feel ill.
  • Face masks, face coverings, and face shields are recommended to prevent the spread of COVID-19 and may count as administrative controls for keeping the workplace safe. For those who require personal protective equipment (e.g., health care, construction, and other settings), please note that cloth face coverings do not qualify as personal protective equipment and may not be used as a substitute for N95 masks.
  • If personal protective equipment is required but not available and there are no other ways to safely do the job, "the work tasks must be discontinued."

Department of Labor Issues New Guidance

The Department of Labor has issued new guidance regarding the Families First Coronavirus Response Act (FFCRA), Emergency Paid Sick Leave (EPSL), and Expanded Family and Medical Leave (EFML) for summer camps and related activities. In short, "unlike schools and day care centers, many summer camps and programs closed in response to COVID-19 before any children began to attend and, in some cases, before they began to enroll. Such camps and programs therefore would not have been places of care [which would trigger EPSL or EFML coverage]." The new guidance is intended to resolve such issues.

Parents are also anxious about what will happen with their children's schools come fall and, if schools are closed, how they will balance it all. The FFCRA provides that, if the physical school is closed, parents qualify for pay via EPSL (2 weeks) and EFML (10 weeks), even if instruction is provided virtually. Remember that the employer receives a tax credit for these payments. Of course, other issues come into the balance – e.g., whether a spouse, partner, or other relative can cover childcare; whether telework is a possibility (and, if so, how to balance with childcare responsibilities); and whether the leave requested is full or intermittent.

Supreme Court Declines to Weigh in on Salary Issue

The United States Supreme Court declined to review a Ninth Circuit Court of Appeals case which held that "salary history" was not a job-related factor on which pay can be based (i.e., basing compensation on "salary history" was improper). Statutory exceptions to equal pay include: (1) seniority; (2) merit; (3) the quantity or quality of the employee’s work; and (4) any other factor other than sex. In addition to the requirements imposed by state equal pay laws, the Court of Appeals ruling serves as a reminder that discrepancies in pay must be bona fide and defensible.

Who Should Return to Work on Site?

Deciding who must return to work, and who may continue to work remotely, is a very delicate dance involving, among other factors, job duties, company culture, office and building layout, and an individual employee’s disability, susceptibility to infection, and/or anxiety. Do not hesitate to contact us at mark@goldsteinsc.com or 414-446-8800 relative to any such determinations.

Workplace Trends

The Business Landscape – A Drastic Shift, and Great Uncertainty

Close your eyes for just a moment and take a few deep breaths.

Over the past months, we have grappled with government directives (e.g., Wisconsin’s Safer at Home Order), initiatives (e.g., FFCRA, PPP loans, expansion of unemployment), and mixed messages. While most businesses have survived, many have not (e.g., as many as 2,400 businesses in Chicago have already announced they will not reopen). Some industries have been hit harder than others. For instance, a recent Yelp Report indicates 15,770 restaurants across the United States have permanently closed, along with 2,429 bar and nightlife businesses (as of July 10, 2020).

The future for business is all about uncertainty (which is, in and of itself, terrible for business). While some of us have thrived (e.g., Amazon and other online businesses, as well as manufacturers of PPE and other essential goods, including some local manufacturers), others of us have looked to government programs for support (e.g., PPP, the revised work-share program). For those of us who have been lucky enough to see a rebound of sorts, we remain unsure as to whether "it’s for real or not."

As of this writing, questions remain regarding what shape further government programs might take, and if and when they might pass into law. While we have now heard several proposals from Congress (e.g., HEROES and HEALS Acts)—including potential changes to Unemployment Insurance, a second stimulus check, and additional PPP loans—still nothing is for certain. At the same time, COVID-19 trends have left many coming to terms with mask mandates and wondering whether there will be further restrictive measures. Reports of worsening numbers and negative economic predictions raise the stakes even higher.

Business Takeaway: Many businesses have not had the time or resources to do any long-term planning as they are simply trying to stay afloat. Are you looking ahead and, if so, how far? Please respond to corey@goldsteinsc.com. (Responses will be held in confidence).

The Workplace - On Pins and Needles

"It depends." The two words clients hate to hear from legal counsel. But that’s precisely where we are at.

Needless to say, COVID-19 has created a plethora of workplace issues and obstacles. Stories such as the immediate issues around Major League Baseball's restart, morale concerns at REI relative to a positive test, Kiltie’s staying open despite five positive tests, and some businesses’ insistence on signed waivers, have eroded both employee trust and consumer confidence. Meanwhile, videos of "mask meltdowns" and other concerning customer interactions are simply unnerving. And, make no mistake, MLB players are themselves extremely anxious.

Beyond COVID-19, tension around issues of racial equality continue to surge. A variety of stories on race, discrimination, and intolerance instantly went viral—from Amy Cooper's Central Park outburst regarding Christian Cooper to Nick Cannon’s inflammatory podcast statements and the implosion of HolyLand relative to five-year-old tweets by the founder’s daughter.

Whether discussing COVID-19 or matters of race relations, when it comes to the workplace, one common question is, "When is termination justified?" Hasty reactions to such incidents are nothing new, but they continue to fuel the arguments around freedom of speech (and especially relative to off-duty speech and conduct). Suffice it to say, there is little room for error here. For instance, Emmanuel Cafferty lost his job after he was "wrongly accused of being a white supremacist." As argued by Christian Cooper, the victim of Amy Cooper’s Central Park outburst, prosecuting Amy Cooper may fail to resolve the legitimate underlying issues.

Business Takeaway: For business owners, it is all about exercising good judgment in the moment, which is almost always really hard and, often times, counterintuitive. Ultimately, you do not want to be perceived as reactionary, nor do you want to be viewed as someone who does not take such matters seriously. Do your employees know what you stand for on these issues, and where the bright lines are? The best approach allows for open communication on difficult topics, bona fide investigations of alleged violations, and appropriate discipline (including up to, but not necessarily, discharge). Employees want to feel heard and know that they will be supported, even when raising difficult topics. On the other hand, that does not mean that you will see it the same as them every time or handle it to their complete satisfaction. Again, do not hesitate to reach out to us at mark@goldsteinsc.com or 414-446-8800 should you encounter any such issues.

Links of Note

Mental Health

An often-underappreciated aspect of COVID-19 is its effect on mental health. Yale psychology professor, Dr. Laurie Santos, provides valuable insights for those looking to prioritize mental well-being.

Anti-Racism

Is not supporting racism enough—or must companies adopt an anti-racist stance? Are companies simply making statements for publicity, or will real action be taken? Many companies are being pushed to new places by societal movements and their own employees. How are you deciding where to plant your flag? And how are you communicating the change?

Strangest Thing We've Heard of Late

No Shortage

In such "strange times," there is no shortage of such stories—from Chuck Woolery’s bizarre Twitter tirade (and its fallout), or the Washington Redskins change of its name (after years of resistance, and so quickly that the new name is not yet decided upon). But it’s hard to beat the St. Louis couple dangerously brandishing weapons from their front patio at civil rights protesters. While they have now been charged criminally, the Missouri Attorney General and Governor have vowed to intervene on their behalf. Strange times indeed.