Friday, May 29, 2020

New OSHA Guidance on Social Distancing

New OSHA alert: COVID-19 Guidance on Social Distancing at Work. Some tips for maintaining proper social distancing:
  • Encourage workers to stay home if they are sick. 
  • Isolate any worker who begins to exhibit symptoms until they can either go home or leave to seek medical care. 
  • Establish flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), if feasible. 
  • In workplaces where customers are present, mark six-foot distances with floor tape in areas where lines form, use drive-through windows or curbside pickup, and limit the number of customers allowed at one time.
  • Stagger breaks and rearrange seating in common break areas to maintain physical distance between workers. 
  • Move or reposition workstations to create more distance, and install plexiglass partitions. 
  • Encourage workers to bring any safety and health concerns to the employers’ attention.

Thursday, May 28, 2020

Third Circuit: Lateral transfer is not an adverse employment action for discrimination claim

Hardly groundbreaking stuff here, but it is an issue that pops up from time to time. A disparate treatment employment discrimination claim requires an adverse employment action. 

In Anderson v. The Mercer Cty. Sheriff Department, the Third Circuit held that a sheriff department employee who was transferred to criminal court security did not suffer an adverse employment action. It was a lateral transfer:
[I]t did not cause a significant change in her employment status. Approximately fifteen other officers were transferred at this same time, and Anderson does not allege that her responsibilities at the criminal courthouse were significantly different from the functions of other sheriffs.
She tried to bolster her claim by alleging that the courthouse was contaminated with asbestos, and she had a doctor's note that it would be detrimental to her health. No dice. The asbestos-related symptoms did not arise until 2012, about two years after the transfer.  

Wednesday, May 20, 2020

What are the OSHA recordkeeping requirements for COVID-19 in the workplace?

As we shift to the re-opening phase, check out this new enforcement guidance from OSHA: Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19). There's a lot for employers to take in - but, I'd like to highlight the guidance regarding recordkeeping. 

Employers are responsible for recording cases of COVID-19 if all of the following requirements are met: 
  • The case is a confirmed case of COVID-19, as defined by the CDC; 
  • The case is work-related, as defined by 29 CFR § 1904.5; and 
  • The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7 (e.g., medical treatment, days away from work).
Now, you're probably asking what in the heck those regulatory provisions mean. You can read 29 CFR § 1904.5 here. It's complicated but the general rule is that employers "must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness."

The recording criteria under 29 CFR § 1904.7 can be found here. Again. Complicated. But, the general rule is that employers "must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness [or] if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional."

Finally, they have an updated guidance memorandum on this issue: Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)

Monday, May 18, 2020

SCOPA: New analysis of independent contractor classification for unemployment compensation

Oh great, one of my favorite topics . . . the 30,000 different tests for employee versus independent contractor classification, each with a few hundred different factors. Okay, perhaps that's an exaggeration. But, seriously, take a look at the existing test for just unemployment compensation in Pennsylvania

Now, the Supreme Court of Pennsylvania (SCOPA) has made it a little more difficult to classify workers as independent contractors in a new case, A Special Touch v. UC Tax Services. The case involves people who worked at a salon, offering nail, skin, massage, and cosmetic services. As with all of these classification cases, the analysis is very fact intensive and not very conducive for succinct blog entries. 

The key takeaway here, however, is pretty simple. The PA UC statute requires in part that independent contractors be "customarily engaged in an independently established trade, occupation, profession or business." SCOPA held: 

[This statutory language is] unambiguous in requiring a putative employer to show that an individual is actually involved in an independent trade, occupation, profession, or business in order to establish that the individual is self-employed . . . . We read nothing in the [statute] to signal that the phrase requires only that an individual be capable of being involved in an independently established trade, occupation, profession, or business.
 Now, you might be thinking that this requires the contractor to actually provide services for others . . . not so fast!
Thus, the analysis under this requirement does not simply turn on the extent to which an individual actually provides his or her services to either the putative employer or third parties, although these considerations are certainly relevant. Rather, the “customarily engaged” language can encompass more activity than actually providing services for others, so long as it is demonstrated that the individual is in some way actually involved in an independently established trade or business. In this respect, we agree with the Department that circumstances demonstrating that an individual is actively holding himself out to perform services for another, such as through the use of business cards or other forms of advertising, even if not actually performing those services during a particular time period at issue, are also relevant to the analysis.
The key takeaway here is to have your contractors print some business cards (I'm about half kidding). It mostly just further reinforces that the UC analysis requires the workers to be in business for themselves.  

First, COVID-19 shut down these salons - now, even when they can re-open, a lot of them will have an additional tax burden (and potentially other issues if the classification analysis carries over into other areas of the law). Definitely a tough few months for them. 

Monday, May 11, 2020

DOL publishes FAQs on Federal Pandemic Unemployment Compensation

The guidance on the COVID-19 response just keeps pouring in. DOL published this handy guide: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – FederalPandemic Unemployment Compensation (FPUC) Program Reporting Instructionsand Questions and Answers

I have always understood that people who are receiving partial UC still get the $600 weekly "bonus cash" - but it's still nice to see confirmation: 
4. Question: Is an individual who is working part-time, or has gone back to work part-time, and is collecting partial UC benefits for a week eligible for FPUC? 

Answer: Yes. An individual working part-time who otherwise meets state eligibility requirements for the underlying benefit is eligible to receive the FPUC payment.
Additional information and links are available on the press release here.  

USWNT discrimination case (mostly) dismissed

Things have been a little hectic lately, so I'm sorry it took me so long to get to this. 10 days ago, the district court mostly dismissed U.S. women's soccer team's equal pay act and Title VII lawsuit. You can read the opinion in Alex Morgan, et. v. United States Soccer Federation, Inc. here.  

I use this case as my go-to discussion topic for Equal Pay Act claims in my employment law classes. Ya know what argument no one has ever made in any of my classes? That the men's and women's teams actually get paid the same rate. And yet, per the opinion:
It is undisputed that, during the class period, the WNT played 111 total games ad made $24.5 million overall averaging $220,747 per game. By contrast, the MNT played 87 total games and made $18.5 overall, averaging $212,639 per game. 
 
Thus, the shocking conclusion was that the women actually made more on a per game basis. This allowed the Court to effectively duck the most contentious issues - do the USWNT and USMNT perform substantially equal work? If so, does a legitimate factor other than sex account for the difference? 

You can read criticism of this conclusion at Volokh here. The gist of which is that the women only earned equal (actually, slightly higher) compensation by winning a lot more games than the men, triggering myriad bonuses. In the context of an Equal Pay Act claim, I'm not sure this criticism is compelling - the EPA framework requires a showing of substantially equal work for lower pay. If the argument is that the women do much better work (i.e. win more games) and only make a little bit more . . . I mean, that just doesn't really align with the framework. 
Now, it could make a decent Title VII claim, and the women did have a Title VII claim too. The Court basically ignored the Title VII discriminatory compensation issue though, with a (paraphrase) "see EPA analysis above." Ultimately, the USWNT has a few surviving claims under Title VII based on:
(1) travel conditions (specifically, charter flights and hotel accommodations), and (2) personnel and support services (specifically, medical and training support). 
Frankly, the USWNT may have preferred to have the suit dismissed in its entirety to make it easier to appeal now. Anyway, I'm sure this issue is not going away any time soon, but we finally have a ruling from the trial court on the main claims.  

Friday, May 8, 2020

SCOTUS arguments go down the drain

A little lighthearted Friday afternoon fun. For the first time in its history, the Supreme Court heard oral arguments remotely. Overall, it went pretty well. But, the highlight was unquestionably the distinct sound of a toilet flushing in the middle of arguments. You know you want to hear it: Toilet Flush Heard During Supreme Court's Conference Call (NPR). Have a great weekend!