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Employers Increasingly Have To Deal with Walkouts and Other Protests Over Pandemic and Racial Issues

Off-duty issues and activities, and their impact at the workplace, seem to be growing today.  Social media protests have increased since the Black Lives Matter movement has intensified, and pandemic issues are not abating.  Often, both as a practical and legal matter, these issues cannot be kept out of the workplace.Off-duty issues and activities, and their impact at the workplace, seem to be growing today.  Social media protests have increased since the Black Lives Matter movement has intensified, and pandemic issues are not abating.  Often, both as a practical and legal matter, these issues cannot be kept out of the workplace.

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High Court Expands Religious Rights in Various Ways

A trilogy of U.S. Supreme Court rulings have expanded religious rights, with one of the rulings pertaining to most private employers.  In Little Sisters of the Poor v. Pennsylvania, the Court ruled that the Trump Administration had the right to exempt employers that raised religious or moral objections to the Affordable Care Act (ACA) prior requirements that health-insurance plans cover contraceptives.  Justice Thomas wrote for the Court that the ACA gives administrators "broad exception" to carve out religious and moral exemptions, under a law that expressly deals with requiring cost-free "preventive care and screenings" and leaving it to the federal agency to determine what is included.  Justice Thomas wrote that: "It was Congress, not the Department, that declined to expressly require that contraceptive coverage in the ACA itself." 

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Supreme Court Rejects Efforts to Discontinue DACA Program

The issue of undocumented immigrants brought into this country as children has long been a controversial one.  Although technically unauthorized, President Obama during his term implemented the Deferred Action for Childhood Arrivals Program (DACA), which in essence indicated that the government would not enforce laws against persons brought into this country illegally as children.  The Trump Administration rescinded the non-enforcement policy of the Obama Administration, and the subsequent litigation went all the way to the U.S. Supreme Court.  Department of Homeland Security v. Regents of the University of California, 18-587. 

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New Rule for Calculating OVERTIME for Fluctuating Workweeks

We all know (or learn) that not everything in life can be carefully planned.  For example, some weeks an employer may need a worker for just 30 hours, but in another week may need them to put in 50 hours.  The Fair Labor Standards Act (FLSA) has long provided employers with the option to pay nonexempt employees whose hours vary on a salary basis, but at times has offered inconsistent guidance on the impact of bonuses and commissions, or how to calculate overtime.  When courts got involved, sometimes there were conflicting rulings.

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Federal Appeals Court Finds Lawful Discharge of an Employee Bringing Baseless Harassment Claim

According to the Sixth Circuit Court of Appeals, the U.S. Army's decision to fire a civilian employee because it found her repeated complaints of harassment baseless, does not violate the federal discrimination laws.  Carrethers v. McCarthy, 2020 BL 198271 (5/28/20).  The employer had assigned an investigator, who concluded that it was "extremely clear" that the plaintiff was fabricating her complaints.  All of the 14 witnesses the plaintiff identified to the investigator contradicted her claims.  Thus, the employer had reason to believe the harassment complaints were not made in good faith.  Also, even if they were, the employer still had a legitimate basis for firing the employee.  The judge cited published rulings by the Fourth, Fifth, Eighth and Eleventh Circuits in support of the conclusion.

Editor's Note:  It is extremely controversial, even if legitimate, to fire an employee for making baseless harassment complaints.  Such actions should only be taken with advice of counsel.

Defenses to Employers from Employee Claiming Infection of the Coronavirus on the Job

Employers, along with other establishments all across the country, fear operating under circumstances where employees may claim they became sick with COVID-19 by contracting the Coronavirus at work.  In most states, outside of certain healthcare workers, the federal and state executive orders do not grant any immunity to employers from such claims. 

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EEOC Postpones Collection of EEO-1 Data for 2019

On May 7, 2020, the Equal Employment Opportunity Commission (EEOC) announced that it was postponing the collection of EEO-1 data due to the Coronavirus.  The EEO-1 report, which normally applies to employers with at least 100 employees, would have been required to be filed by March 2020, for the 2019 report.  The 2019 report is now not due until March of 2021.

Lessons in Applying The Pregnancy Act to Light Duty Jobs

Many employers limit light duty jobs to workers who have suffered work-related injuries.  However, a new case out of the Eleventh Circuit tells us that the employer that fails to offer these light duty jobs to pregnant employees with medical restrictions risks being liable for discrimination.  Durham v. Rural/Metro Corp., 18-14687 (11th Cir., 4/17/20). 

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Plaintiff's Attorney AVENATTI Convicted of Extortion

While an employer may state publicly or privately that the plaintiff's demands were "extortion," it is extremely rare for a plaintiff's attorney to be convicted of such an offense.  Well, this just happened to a plaintiff's attorney, a high-profile one at that, Michael Avenatti, who rose to national prominence as the attorney for adult-film actress Stormy Daniels, who had apparently settled a claim involving President Trump.  On February 14, 2020, a jury found that Avenatti tried to extort $20 million from Nike by threatening to expose damaging information about the company.  In the negotiation session with Nike's attorneys, the defense attorneys secretly tape recorded the negotiations in which Avenatti allegedly threatened to expose corruption by Nike in connection with high school basketball players if Nike did not pay Avenatti's client a significant amount of money and hire him to conduct an internal investigation at Nike.  Avenatti's defense was that he was just using tough negotiating tactics and wasn't trying to extort the company.  U.S. attorneys saw the situation differently, calling Avenatti's approach "an old-fashioned shakedown."  Avenatti apparently had threatened to expose the alleged payments to high school basketball players at a news conference.

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Traps to Avoid in Obtaining Paycheck Protection Program (PPP) Loan Forgiveness

The PPP allows certain employers (primarily those with less than 500 employees) to obtain low cost (1% interest), short-term (2 years) financing from the federal government for certain operating expenses consisting of payroll costs, interest on certain loans (not principal), rent on real and personal property, and certain utilities.

The limitation on the use of the loan proceeds means that employers cannot use the money to pay suppliers, contractors, or insurers.

In addition, recent regulations impose a requirement that is not in the statute--75% of the loan proceeds must be spent on certain payroll costs to qualify for forgiveness. This requirement ignores the fact that many businesses in normal times do not spend 75% of their revenue on payroll costs and those businesses may not survive if other obligations are not paid.

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