Six Months of Benefits on Furlough – Now What?

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Most businesses in this country (and the world, for that matter) remain hobbled as a result of the COVID-19 pandemic.  (Amazon is the exception.  Another notable exception is Peloton, the exercise bike maker, which is glowing in its 172% surge in total revenue, with gains in subscribers and demand for its fitness products.)  But employees in several industries, including travel, hospitality and entertainment, remain uncertain about their futures.

Many struggling but optimistic employers have continued to offer medical, dental and other benefits to employees on “furlough.”  Before the pandemic, furlough was a concept more familiar to European countries, with furlough provisions mandated by law, than to U.S. employers.  We’ve now settled on the concept that the employer has not severed the employment relationship of an employee on furlough (still active in the HR system) but the employee is not actively working and is not being paid except for the value of the benefits that the employer continues to provide.

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Labor & Employment-Related Laws from 2020 Florida Legislative Session

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The 2020 Legislative Session concluded in May and bills have been making their way to the Governor for signature. Although this has progressed more slowly than is ordinary due to the ongoing pandemic, several labor and employment-related bills have been signed into law nonetheless. Here are three particularly notable bills that went into effect on July 1st:

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Black Lives Matter Apparel At Work – Legal, Business and Social Considerations

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The Black Lives Matter (“BLM”) movement has sparked significant emotion in the past few months.  As the NBA restarts the season, TV viewers will see the phrase emblazoned on the courts and on some players’ jerseys.  What you won’t see on TV are the large employers which have faced significant backlash for attempting to prohibit employees from wearing BLM masks and other apparel.  For example, last week, several Whole Foods employees initiated a class action lawsuit claiming they have been subjected to racial discrimination and retaliation for wearing BLM masks and other clothing, even after Whole Foods reversed its initial prohibition on BLM masks.

Some employees assert that their right to free speech should allow them to wear whatever they please to work, not realizing that the First Amendment only protects them from unreasonable restrictions on speech by the government.  Legally, private employers may restrict speech as long as it does not violate other laws.

For example, if employees are engaged in concerted activity regarding the terms and conditions of their employment, the National Labor Relations Act (“NLRA”) may protect their conduct and speech.  Wearing a BLM mask could be permissible under the NLRA if employees were protesting workplace discrimination, but that’s not generally what we’ve been seeing.  Rather, employees want to express their support for the social movement that is embodied by the Black Lives Matter slogan.  Therefore, when considering restrictions on employee dress code, as with many other issues, employers must evaluate potential legal, social and business concerns all at once.

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Why Can’t We All Just Get Along?

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This sentiment is perfect for a Kenny Chesney summer concert.  Now it looks like the NLRB and the EEOC can “get along”, and at the same time make it easier for employers to appropriately discipline employees who engage in unacceptable behavior, even if that behavior occurs during otherwise “protected” activity.

The EEOC’s position uniformly has been that employers are required to discipline or terminate employees who use racial or sexual epithets at work.  Employers who do not take immediate corrective action can be held liable for discrimination and costly damage awards.  On the other hand, until this week, the NLRB took the position that taking adverse action against employees who made such comments while protesting working conditions violates the National Labor Relations Act (NLRA).  Thus, employers were often left between the proverbial rock and hard place.

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Hot Off the Presses: DOL Issues Revised FMLA Forms

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We are in the midst of a global pandemic, with many employers struggling financially to survive.  Yet, surprisingly, the biggest news from the U.S. Department of Labor (DOL) is not new safety rules intended to protect employees from the novel coronavirus.  Instead, last Friday, the DOL published revised optional-use forms to comply with the Family and Medical Leave Act (FMLA).

In early August 2019, the DOL had requested comments from the public on modifications to these forms.  Based on that feedback, the DOL has now published updated forms that employers can use to provide legally required notice to their employees and for employees to comply with their requirement to provide certification of their specific need for FMLA leave.  The updated forms are electronically fillable PDFs and can be saved electronically.

The newly revised forms include the following:

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Signing Your Life Away? – The COVID-19 Waiver

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Businesses often ask customers to sign a waiver before renting a Sea-Doo, zip-lining, tubing, or perhaps even so your child can bounce on a trampoline or in a bounce house.  But can a business use a waiver to avoid liability if a customer contracts COVID-19 after visiting the business?  Like the novel coronavirus, it is a novel legal issue.

Under Florida law, these kind of waivers are called exculpatory agreements and are frowned upon.  However, courts will enforce a waiver, even relieving a business owner from its own negligence provided the agreement is clear and understandable so that an ordinary and knowledgeable person would know what they are contracting away.  The better practice is to make it clear in the agreement that the signer is releasing the business even from its own negligence. Under these conditions, courts will enforce exculpatory contracts provided they do not violate public policy.

It is the public policy proviso that may stand in the way of an enforceable COVID-19 waiver.  A business that fails to take adequate steps to protect the public and its employees from the novel coronavirus may have a hard time convincing a court to relieve it of liability – assuming the plaintiff can prove that the business was the source of infection.  With respect to employees, it is highly unlikely that the business can waive away its duty to provide a safe workplace.  Also, although it is unclear whether Florida’s workers’ compensation law will cover a “work-related” novel coronavirus exposure, Florida law prohibits waivers of work-related injuries.

Waivers may be of little value to protect a business against claims from its employees.  The waivers may be more effective to protect a business from customers’ claims.  The best approach is to follow federal, state, and local guidelines and requirements to try to reduce the spread of COVID-19, thereby maximizing the likelihood that a court will enforce your waiver agreement.

Top Takeaways from Our Back to Work Virtual Chat

Earlier this week, we hosted a “Back to Work Virtual Chat.” As businesses begin to re-open and adjust to the “new normal”, we hoped to provide employers, big or small, with guidance to help navigate through these unprecedented times. Our goal was to provide practical information (not legal advice)  to help organizations address the various steps needed to implement back-to-work processes.

We had just under 500 folks join us and we received many good questions. Thank you to all who joined us! To our clients, if you have questions or need advice or guidance on any specific issue or workplace situation, do not hesitate to contact us. We also encourage others to contact their attorneys for additional information and guidance.

For those of you who need a refresher or weren’t able to join us, we’ve included our top takeaways below!

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Preparing for a Hurricane Amid the Pandemic

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While we are all busy thinking about ways to safeguard ourselves, our families, and our businesses during the coronavirus pandemic, let us not forget that hurricane season is just around the corner. It runs from June 1 through November 30. Unfortunately, NOAA has predicted a busy 2020 Atlantic hurricane season with a forecast of 13 to 19 named storms. There is no time like the present to get prepared.

A comprehensive hurricane plan to protect your business is always a good start. Your plan should be reviewed annually for needed changes and improvements. Prior to a storm you should consider your risks – can your business operate without computers, copiers, files, electric, water or internet? How will you make payroll? Will employees be able to get to work? Next, develop a plan to address the risks and to safeguard your employees, business and equipment. Remember to order storm equipment and supplies early, such as batteries, water, file boxes (waterproof?), plastic sheeting, extra garbage bags, and duct tape. Don’t forget to update current employee, client, customer and vendor contact information and to print copies in case you cannot access these electronically. You may be forced to use cell phones and personal email addresses to communicate during and after a storm. Designate an emergency response team and provide each team member with a list of employees for whom he or she is responsible for contacting after the storm has passed. Provide information on the company’s voicemail system and website so that employees can check the status of the business’s operations and receive updates.

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COVID-19: A Turning Point For the Standard 9-5 Work Week?

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Where did the 8 hour, 5 day work week come from? Ford Motor Company in 1914, but it was a long time coming.  Before that, factories were open around-the-clock with employees working long days and 100 hour weeks. In the late 1880s, a labor movement started using a slogan like “eight hours for work, eight hours for play and eight hours for rest”.  After that, it took almost 20 years until Ford reduced employees’ regular work week to 5 days consisting of eight hour days. The company also doubled employee pay, causing shockwaves throughout the industry. By doing this, Ford saw employee productivity increase and profit margins double. The thinking was that if the company was going to make any money, employees needed time off to buy things.  Seeing the success of Ford, other companies naturally implemented the eight hour day, which soon became the working standard.  So there it is, the reason the 8 hour, 5 day work week exists in our country for over a century is nothing more than an old effective factory work schedule.

Where is the 8 hour, 5 day work week going? No one really knows, but times they are a changing and the days of factory workers fighting for shorter days and benefits are behind us.

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Register Now for Our Back to Work Virtual Chat – June 1

Trying to juggle work and home? Wish you had a crystal ball to see the future “new normal” workplace? Wouldn’t you welcome some guidance on return to work issues?

Problem solved – we know how to juggle and we have a crystal ball! We also can provide guidance on important workplace issues that HR and in-house counsel will be facing as businesses reopen and employees return to work.

Register Here for our Back to Work Virtual Chat on Monday, June 1, 2020 from 10:00am – 12:00pm.

Moderated by Bob Turk, we will discuss the following topics as they relate to COVID-19 and your business:

If you have specific questions on these topics that you would like for us to try to address, please email us by Thursday, May 28.

BONUS: All attendees will receive Lisa Berg’s Guide to Return to Work along with other materials referenced in the chat.

The program is pending HRCI, SHRM, and The Florida Bar CLE credit confirmation.  Once approved, credit information will be sent to all registrants.

Note: The program is only available to the first 500 registrants.