The New PRO Act Provides Insight into Labor Priorities

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Predictably, the pendulum of labor law will swing to the left over the next several years.  The first sign was the recent passage of the Protecting the Right to Organize (“PRO”) Act by the U.S. House of Representatives.  While this law has virtually no chance to pass the Senate without filibuster reform, it serves as good insight into the immediate goals of the labor movement.

If enacted, the PRO Act would represent one of the most dramatic changes to US labor law in decades.  The biggest change would be a provision allowing unions to override current “right-to-work” laws in 27 states by allowing contracts mandating the payment of union dues.   However, that is just one portion of the sweeping legislation.

The PRO Act would expand the current authority of the National Labor Relations Board (“NLRB”).  For example, it would allow for the NLRB to levy “meaningful” monetary penalties to companies and executives found to have violated workers’ rights, and expands the NLRB’s injunctive powers to allow for immediate worker reinstatement while a case is pending.  In addition, the PRO Act provides the NLRB with the power to enforce its own rulings without any ruling from the Court of Appeals.  The PRO Act also seeks to shift the balance in election outcomes by prohibiting employers from requiring employees to attend “captive audience meetings” prior to union elections, and giving independent contractors the right to collectively bargain as employees.  Finally, the PRO Act changes the nature of post-election labor negotiations by forcing employers to reach quick agreements on first contracts or face arbitration where even economic terms could be decided by a third-party.

In short, employers should not dismiss the passage of this legislation by the House simply because it is unlikely to become law.  The PRO Act clearly illustrates the goals organized labor will seek to achieve in the short term one way or another.

All In A Day’s Work – Correctly Paying Employees Who Are Working From Home

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It’s hard to believe that I’ve been working from home for an entire year. I almost cannot believe what I’m writing! And I know I’m not alone.

In the midst of the pandemic, so many of us are working from home. And not just working from home, but a good number of us are juggling virtual school for our children while we work at home. (Please send wine!) Although I do not have a crystal ball (I wish I did!), I think by the summer or fall we will all have some relief (fingers crossed!).

Until then, many parents are continuing to deal with child care issues and working from home. Because of this and for varying reasons, many employees are working more flexible schedules from home. For example, to assist with virtual school, an employee may be working between 6:00 a.m. and 9:00 a.m., between 3:00 p.m. and 6:00 p.m., and between 9:00 p.m. and 11:00 p.m.

The question that employers consistently face is: How do we correctly pay non-exempt employees working flexible schedules from home? Here’s the answer—at least for now:

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State tax withholding and other obligations for remote workers. What you don’t know CAN hurt you. (PART 1)

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A year into the pandemic, many employees have fled their home states to work remotely out-of-state.  These employees have been working “remotely” in states in which their employers have no operations. So what’s the problem?

State and local taxes and employment laws, of course.

This blog is part one of a two-part post and will look at some of the tax and employment law issues that can arise when employees “work from home” in different states. Today, let’s discuss taxes. Next week, we will look at how state employment laws apply to remote employees.

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Some Things in Life are Free: EEOC’s Miami ADR Mediation Unit Upcoming Zoom Presentation

Accompanying most U.S. Equal Employment Opportunity Commission (EEOC) charges of employment discrimination is an inquiry from the EEOC’s Alternative Dispute Resolution (ADR) unit regarding whether an employer would like an opportunity through mediation to resolve the charge with its former or current employee. If both the employer and employee agree, the EEOC ADR unit will have one of its mediators assigned to work with the parties.

If you have not participated in an EEOC mediation (or have) and would like more information, the EEOC ADR unit is presenting a Zoom Webinar without charge to employers and employees.  Marvin Frazier, head of the EEOC’s Miami District Office’s ADR unit, asked me to provide the following information:

EEOC’s ADR Mediations – An Effective Remedy for Employment Discrimination Charges Resolutions

When: Friday, March 26th at 11:30am ET

Who: Mediators from the EEOC Miami District

What: You will learn how and why mediation is an effective tool for resolving employment discrimination charges.

Also, a discussion on how the agency’s mediation process works, the selection process, the way mediations are currently conducted and how it will change post-COVID-19, various types of resolutions, and more.

Where: Zoom.  Click here to register for this free webinar!

The 2021 Florida Legislative Session – The Graveyard for Employment-Related Proposals?

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Each year Florida legislators meet for just 60 days to propose and pass new laws. The Legislature is now in session through the end of April 2021.  A number of employment-related bills have already been introduced – many are first proposed to lay the groundwork for possible passage years down the road and others are just wishes that may never be granted. In the rush of business, most proposed bills end up in the legislative graveyard. However, it is always interesting to see what proposals, if passed, would affect Florida’s workplaces.

Here are just a sampling of some of the employment-related bills currently pending in Tallahassee:

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Pre-Season Predictions: Labor and Employment Under the Incoming Biden Administration

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The champagne was still flowing in the Alabama locker room on Monday night following their thumping of Ohio State in the College Football National Championship Game when sports media outlets began to publish their “Way Too Early” Top 25 polls for next season. It is a stark reminder that it is never too soon to look ahead. As the country gets set to swear in a new president next week, it is the perfect time to make some “pre-season” predictions about the changes the incoming administration might make to the labor and employment landscape.

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Florida’s New E-Verify Law: Hidden Surprise for Private Employers

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On January 1, Section 448.095 of the Florida Statutes took effect.  Much of the attention on the new statute has focused on the requirement that public employers and contractors and subcontractors enroll in and use the federal government’s E-Verify system.  However, the statute also imposes an obligation on private employers that goes beyond the federal regulations governing the Form I-9 process.

The E-Verify Requirement

Beginning January 1, 2021, every public employer, contractor, and subcontractor must register with and use E-Verify to verify the work authorization of all newly hired employees.  A contractor is a person or entity that has entered into or is attempting to enter into a contract with a public employer to provide labor, supplies, or services to the public employer in exchange for salary, wages, or other remuneration.  A public employer includes any state, regional, county, local or municipal government, public school, community college, or state university.

The Statute’s Impact on Private Employers

Beginning January 1, 2021, private employers must verify the employment authorization of any newly hired employee.  The private employer must verify employment eligibility either (1) using the E-Verify system or (2) requiring the person to provide the same documentation required by the Form I-9 process and retain a copy of the documentation for three years.

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Families First Coronavirus Response Act: We Hardly Knew Ye!

The Families First Coronavirus Response Act (“FFCRA”) became federal law on April 1, 2020. (For a detailed discussion on FFCRA coverage see our blog post dated March 20, 2020). The FFCRA was the first federal legislation mandating nationwide paid leave for employees. Unlike many other federal employment laws, the FFCRA contained a “use by” date of December 31, 2020. So, after tomorrow, it expires.

The most recent Congressional action failed to extend either the FFCRA’s Emergency Paid Sick Leave and Emergency Family and Medical Leave Act provisions into the New Year. Instead, Congress greenlit those covered employers who wish to voluntarily continue to provide FFCRA paid sick leave with a tax credit incentive up to March 31, 2021. If there are any lingering issues, the U.S. Department of Labor is expected to give additional guidance.

However, private employers may need to consider whether to continue to provide paid time off to sick employees, those seeking testing, caring for other family members or those testing positive for COVID-19 even beyond tomorrow in light of the continuing COVID crisis. Does any employer really want infected employees returning to work prematurely because they cannot afford to stay home? Or employees leaving minor children alone at home because of a school closure?

Even as they say “auf weidersehen” to the FFCRA, Florida employers need to remember that employees are still entitled to unpaid traditional FMLA leave if they are sick with COVID (and meets the test for a serious health condition) or are caring for a covered family member with a serious health condition.

But wait, that’s not the end of the story. The FFCRA will continue to be a zombie law, since it allows employees to file suit up to two years after the alleged violation of the FFCRA and for willful violations of the FFCRA for up to three years afterwards.

As we look to 2021, now that the U.S. has dipped its toes into paid leave, query whether Congress and the Biden administration will revisit the need for paid leave for those who need to care for themselves or covered family members as the pandemic continues or for other health-related reasons after the present crisis ends.

All I Want for the Holidays is a COVID-19 Vaccine!

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Finally, there is a light at the end of this tunnel.  COVID-19 vaccines have been approved for use and are currently being shipped nationwide.

COVID-19 vaccinations are a polarizing topic.  Well-regarded medical professionals report that the vaccines are between 94-95% effective, have minimal side effects (which do not include getting the virus) and represent our best chance at getting back to normal. Despite this, it is predicted that between 30 and 50% of Americans would decline to take a COVID-19 vaccine, even if free, based on concerns about side effects, the development process, and the effectiveness of the vaccine.

While it is still not clear when everyone will have access, it’s not too soon for employers to start planning.   As the vaccines become available, employers have one simple question “Can we require our employees to get vaccinated?”

In true lawyer fashion, the answer is “yes, but…”

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DHS Extends Temporary Protected Status and Work Authorization

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On December 9, the Department of Homeland Security (DHS) again extended Temporary Protected Status (TPS) for beneficiaries from El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal.  DHS also extended the work authorization of qualifying individuals through October 4, 2021.

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