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Employee or Independent Contractor? DOL Issues Proposed Worker Classification Rule

Worker classification is a hot issue right now. The recent California law that classifies most workers as employees has completely upended the gig economy in that state, so it is no surprise that the law is being challenged by a number of business groups.

Under federal law, whether an employer classifies a worker as an employee or an independent contractor can have major economic consequences, especially if the worker is misclassified. For example, wrongly misclassifying an employee as an independent contractor can result in liability under the Fair Labor Standards Act (FLSA) for unpaid minimum wage and/or overtime compensation. Multiplied by two if the misclassification is considered a willful violation of the FLSA.

Today, the U.S. Department of Labor (DOL) announced a proposed rule offering what it claims to be clarity to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor.

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Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

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DOL Issues New Guidance: No FFCRA Paid Leave If School Is Open But Parent Chooses Remote Learning

Yesterday, the Department of Labor issued some new guidance on the paid leave provisions of the Families First Coronavirus Relief Act (FFCRA). The new guidance addresses the availability of paid leave to parents who are choosing to let their children go to school remotely.

By way of background, the FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from the effective date through December 31, 2020.

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Hey Georgia Businesses: Is Your COVID Warning Sign Compliant?

Hey Georgia Businesses: Is Your COVID Warning Sign Compliant?

As I discussed in an earlier blog post, this month, Georgia enacted a COVID immunity law. Georgia businesses will generally be protected from liability over COVID-19 exposure except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. In addition, Georgia businesses that post a warning sign will be entitled to additional protection from liability due to a rebuttable presumption of assumption of the risk by a claimant.

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Georgia Now Has A COVID Immunity Law

Georgia Now Has A COVID Immunity Law

Yesterday, Georgia Governor Brian Kemp signed into law S.B. 359, which will protect businesses and other organizations in Georgia from potential lawsuits over Covid-19 exposure. The law takes effect immediately.

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Maintaining the Confidentiality of Employee Health Information During the Pandemic

Maintaining the Confidentiality of Employee Health Information During the Pandemic

In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

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Home Alone: Current CDC Guidance on At-Home Isolation for Persons Infected with COVID-19

Home Alone: Current CDC Guidance on At-Home Isolation for Persons Infected with COVID-19

Many states continue to see rising numbers of persons with positive COVID-19 tests, which means that workplaces in those states are dealing with employees who are infected with COVID-19. The CDC recommends that employees who test positive for COVID-19 (using a viral test, not an antibody test) should be excluded from work and remain in isolation if they do not need to be hospitalized. But for how long?

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Handling Employees Who Refuse to Comply With a Workplace Mask Rule

Handling Employees Who Refuse to Comply With a Workplace Mask Rule

The CDC recommends the wearing of face masks as one way to slow the spread of the novel coronavirus, and 29 states and the District of Columbia have instituted or announced statewide orders requiring face coverings in public, with similar but varying requirements. Even states that do not have mask orders are strongly recommending that citizens wear masks in public to slow the spread of the coronavirus (Hello, Georgia).

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Let’s Talk About Employee Speech in the Workplace

Let’s Talk About Employee Speech in the Workplace

How much control can an employer exercise over employee speech in the workplace?

As an initial matter, let’s talk about the First Amendment of the U.S. Constitution. The First Amendment protects speech against interference by the government; it does not protect speech against interference by a private employer. So employees of private employers cannot properly invoke their “first amendment rights” against any employer restrictions on their speech.

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