DuBose Law Firm, PLLC

Main navigation

You are here: Home / Archives for Greg Lisemby

Greg Lisemby

Amazon Opting for the Courtroom Over Arbitration

By

courthouse over arbitration

Amazon opting for the courtroom over arbitration is a big change since many employees sign arbitration agreements as a requirement of employment. Such agreements typically require employees to resolve any disputes outside of the courtroom and instead seek justice through the arbitration process. Similarly, many consumer products are available for use only after a customer agrees to forego litigation as an option should a problem or dispute arise.

However Amazon, the Seattle-based multinational technology company has recently updated its terms of service in order to allow its customers to bring individual or class action lawsuits against it. According to the Wall Street Journal, Amazon made the change in response to more than 75,000 pending arbitration demands on behalf of Echo device users.

Why is Amazon opting for the courtroom?

Attorneys involved in the disputes told the Wall Street Journal that Amazon would have paid out tens of millions of dollars in filing fees in those cases. Instead, Amazon now faces several class actions, including one alleging that it illegally recorded conversations with its Echo Dot devices.

The updated Amazon conditions of use page now states that “any dispute or claim relating in any way to your use of any Amazon service will be adjudicated in the state or federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts.” The company’s previous terms of service included a requirement that customers agree to the Federal Arbitration Act to use any of its services.

Google made the change in 2019

Another tech giant, Google, previously ended arbitration requirements for employees in 2019. One factor in this trend reversal could be the recent practice of law firms pursuing arbitration on behalf of thousands of claimants as an alternative to bringing a single class action. For example, in response to DoorDash’s arbitration clause in contracts with its drivers, a law firm initiated over 5,000 separate arbitration claims on behalf of drivers who claimed that they were improperly classified as contractors. Such arbitration proceedings can result in significant arbitration fees that can far exceed court costs in the event that a large number of arbitration cases are brought individually (as opposed to a class action). 

Opting for the courtroom the new trend?

Although it is too early to tell whether these two large tech companies’ decisions to forgo arbitration will become the new trend in corporate America, the tide may well be turning in favor of the courtroom as a more efficient and perhaps less expensive means of resolving conflicts.

UPDATED COVID-19 GUIDANCE FOR EMPLOYERS AND WORKERS

By

COVID-19 work

On June 10, 2021, the U.S. Department of Labor updated COVID-19 guidance for employers and workers. These are for groups not covered by the Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Emergency Temporary Standard (ETS). This addresses the need to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk, and to help them take appropriate steps to prevent exposure and infection. The changes in guidance (1) focus protections on unvaccinated and otherwise at-risk workers, (2) encourage Covid-19 vaccination and (3) add links to guidance with the most up-to-date content.

The CDC’s Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, the CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. People are considered fully vaccinated for COVID-19 two weeks or more after they have completed their final dose of a COVID-19 vaccine authorized by the U.S. Food and Drug Administration in the United States. However, CDC suggests that people who are fully vaccinated but still at-risk due to immuno-compromising conditions should discuss the need for additional protections with their healthcare providers. CDC continues to recommend precautions for workers in certain transportation settings.

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at risk from COVID-19 exposure. This guidance focuses only on protecting unvaccinated or otherwise at-risk workers in their workplaces (or well-defined portions of workplaces).1

The guidance contains recommendations as well as descriptions of mandatory safety and health standards, the latter of which are clearly labeled throughout as “mandatory OSHA standards.” The recommendations are advisory in nature and informational in content, and are intended to assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

While the guidance addresses many workplaces, many healthcare workplace settings will be covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. Pursuant to the Occupational Safety and Health Act (the OSH Act or the Act), employers must comply with safety and health standards and regulations issued and enforced either by OSHA or by an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

What workers need to know about COVID-19 protections in the workplace

COVID-19 spreads mainly among unvaccinated people who are in close contact with one another especially in poorly ventilated spaces.

Vaccination is the key in a multi-layered approach to protect workers. Learn about and take advantage of opportunities that your employer may provide to take time off to get vaccinated. Vaccines authorized by the U.S. Food and Drug Administration are highly effective at protecting vaccinated people against symptomatic and severe COVID-19 illness. According to the CDC, a growing body of evidence suggests that fully vaccinated people are less likely to have symptomatic infection or transmit the virus to others. See CDC’s Guidance for Fully Vaccinated People.

If you are unvaccinated or otherwise at-risk (e.g., because of a prior transplant or other medical condition), you should follow recommended precautions and policies at your workplace. Many employers have established COVID-19 prevention programs that include a number of important steps to keep unvaccinated and otherwise at-risk workers safe. These COVID-19 prevention programs include measures such as telework and flexible schedules, enhanced cleaning programs with a focus on high-touch surfaces, engineering controls (e.g., ventilation), administrative policies (e.g., vaccination policies), personal protective equipment (PPE), face coverings, and physical distancing. Ask your employer about plans in your workplace. In addition, employees with disabilities who are at-risk may request reasonable accommodation under the ADA.

Even if your employer does not have a COVID-19 prevention program, if you are unvaccinated or otherwise at-risk, you can help protect yourself by following the steps listed below:

  • Identify opportunities to get vaccinated. Ask your employer about opportunities for paid leave, if necessary, to get vaccinated and recover from any side effects.
  • Properly wear a face covering over your nose and mouth. Face coverings are simple barriers worn over the face, nose and chin. They work to help prevent your respiratory droplets or large particles from reaching others. If they are of high enough quality, they also provide a measure of protection to the people wearing them. CDC provides general guidance on masks. If you are working outdoors you may opt not to wear face coverings in many circumstances; however, you should be supported in safely continuing face covering use if you choose, especially if you work closely with other people.
  • Stay far enough away from other people so that you are not breathing in particles produced by them – generally at least 6 feet (about 2 arm lengths), although this approach by itself is not a guarantee that you will avoid infection, especially in enclosed or poorly ventilated spaces. Ask your employer about possible telework and flexible schedule options at your workplace, and take advantage of such policies if possible. Perform work tasks, hold meetings, and take breaks outdoors when possible.
  • Participate in any training offered by your employer/building manager to learn how rooms are ventilated effectively and notify the building manager if you see vents that are clogged, dirty, or blocked by furniture or equipment.
  • Practice good personal hygiene and wash your hands often. Always cover your mouth and nose with a tissue, or the inside of your elbow, when you cough or sneeze, and do not spit. Monitor your health daily and be alert for COVID-19 symptoms (e.g., fever, cough, or shortness of breath). See CDC’s Personal & Social Activities Guidance for Unvaccinated People.

COVID-19 vaccines are highly effective at keeping you from getting COVID-19. If you are not yet fully vaccinated, or are otherwise at risk, optimum protection is provided by using multiple layers of other interventions that prevent exposure and infection.

The role of employers and workers in responding to COVID-19

Under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm.

CDC’s Interim Public Health Recommendations for Fully Vaccinated People are directed at individuals and explains that fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. See CDC’s Exceptions to COVID-19 Recommended Precautions for Fully Vaccinated People.

Except for workplace settings covered by OSHA’s ETS and mask requirements for public transportation, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.2

Employers should engage with workers and their representatives to determine how to implement multi-layered interventions to protect unvaccinated or otherwise at-risk workers and mitigate the spread of COVID-19, including:

  1. Grant paid time off for employees to get vaccinated.
  2. Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19.
  3. Implement physical distancing for unvaccinated and otherwise at-risk workers in all communal work areas.
  4. Provide unvaccinated and otherwise at-risk workers with face coverings or surgical masks, unless their work task requires a respirator or other PPE.
  5. Educate and train workers on your COVID-19 policies and procedures using accessible formats and in language they understand.
  6. Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments, if there are unvaccinated or otherwise at-risk workers in the workplace who are likely to interact with these customers, visitors, or guests.
  7. Maintain Ventilation Systems.
  8. Perform routine cleaning and disinfection.
  9. Record and report COVID-19 infections and deaths.
  10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  11. Follow other applicable mandatory OSHA standards.

Additional steps employers should take

According to the guidance, Employers should take additional steps to mitigate the spread of COVID-19 for unvaccinated and otherwise at-risk workers in workplaces where there is heightened risk due to the following types of factors:

  • Close contact– where unvaccinated or otherwise at-risk workers are working close to one another, for example, on production or assembly lines. Such workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
  • Duration of contact – where unvaccinated or otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for 8–12 hours per shift). Continued contact with potentially infectious individuals increases the risk of SARS-CoV-2 transmission.
  • Type of contact – unvaccinated or otherwise at-risk workers who may be exposed to the infectious virus through respiratory droplets in the air—for example, when unvaccinated or otherwise at-risk workers in a manufacturing or factory setting who have the virus cough or sneeze. It is also possible that exposure could occur from contact with contaminated surfaces or objects, such as tools, workstations, or break room tables. Shared spaces such as break rooms, locker rooms, and entrances/exits to the facility may contribute to their risk.
  • Other distinctive factors that may increase risk among these unvaccinated or otherwise at-risk workers include:
    • A common practice at some workplaces of sharing employer-provided transportation such as ride-share vans or shuttle vehicles;
    • Frequent contact with other unvaccinated or otherwise at-risk individuals in community settings in areas where there is elevated community transmission; and
    • Communal housing or living quarters onboard vessels with other unvaccinated or otherwise at-risk individuals.

In these types of higher-risk workplaces – which include manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing – this Appendix provides best practices to protect unvaccinated or otherwise at-risk workers. Please note that these recommendations are in addition to those in the general precautions described above, including isolation of infected or possibly infected workers, and other precautions.

In all higher-risk workplaces where there are unvaccinated or otherwise at-risk workers:

  • Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.
  • Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
  • Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
  • Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.

In workplaces (or well-defined work areas) with processing or assembly lines where there are unvaccinated or otherwise at-risk workers:

  • Working on food processing or assembly lines can result in virus exposure because these workplaces have often been designed for a number of workers to stand next to or across from each other to maximize productivity. Proper spacing of unvaccinated or otherwise at-risk workers (or if not possible, appropriate use of barriers) can help reduce the risks for such workers.

In retail workplaces (or well-defined work areas within retail) where there are unvaccinated or otherwise at-risk workers:

  • Suggest masks for unvaccinated (or unknown-status) customers and other visitors.
  • Consider means for physical distancing from other people who are not known to be fully vaccinated. If distancing is not possible, consider the use of barriers between work stations used by unvaccinated or otherwise at-risk workers and the locations customers will stand, with pass-through openings at the bottom, if possible.
  • Move the electronic payment terminal/credit card reader farther away from any unvaccinated or otherwise at-risk workers in order to increase the distance between customers and such workers, if possible.
  • Shift primary stocking activities of unvaccinated or otherwise at-risk workers to off-peak or after hours when possible to reduce contact between unvaccinated or otherwise at-risk workers and customers.

For additional information on the Department of Labor’s guidance and regulations, visit https://www.dol.gov/ .

1 CDC recommends that fully vaccinated people should nonetheless:

2 The DOL recommends that schools should continue to follow applicable CDC guidance.

Can Employers Require Workers to Get Vaccinated against Covid-19?

By

Can employers require workers to get vaccinated against Covid-19? It is not simply a Yes or No answer. As of last Friday, the percentage of fully vaccinated US citizens stood at 39.6%, a stark contrast to the 5% of the worldwide population that are fully vaccinated. Despite this remarkable achievement, six out of ten Americans remain unvaccinated against Covid-19.

According to law, can employers require workers to get vaccinated

Under the law, an employer can generally require its workers to be vaccinated and can also fire an employee who refuses to do so. Some notable exceptions, however, exist to the general rule. For example, if a work force is unionized, the collective bargaining agreement may require negotiating with the union before an employer can implement a vaccine requirement.

Anti-discrimination laws also provide some protections to workers that are disabled. Under the Americans with Disabilities Act (the ADA), workers who do not want to be vaccinated for specific medical reasons are eligible to request an exemption. In this case, an employer may need to provide reasonable accommodation, such as allowing the employee to work remotely. Another exception exists under Title VII of the Civil Rights Act of 1964. Under Title VII, if taking the vaccine would conflict with a sincerely held religious belief, a worker may be able to opt out of a vaccine requirement.

Emergency use authorization

Before the pandemic, the general position of the relevant federal agencies, such as the FDA and the CDC, was that vaccines provided under emergency use authorization cannot be mandated. But that guidance was not binding. When confronted with pandemic realities, the federal government took the position that “[w]hether an employer may require or mandate Covid-19 vaccination is a matter of state or other applicable law.” And in most states, employees are “at will,” meaning they can be terminated for any reason that is not explicitly illegal.

According to a recent article authored by law professors at UC Hastings and Harvard, those arguing that the emergency use authorization statute prohibits mandates by at-will employers are claiming that this federal law is changing existing state employment law on the topic by mere implication. Such a broad prohibition covering all employers and universities in the U.S. is not, however, in the statute. Such a blanket preemption, conclude these law professors, would require clearer language, and the status of authorization (whether full or emergency) is a red herring when it comes to the mandating of Covid-19 vaccinations.

Independent Contractor Status under the Fair Labor Standards Act (Update)

By

The U.S. Department of Labor (DOL) is officially withdrawing the prior administration’s independent contractor rule, which would have made it easier for businesses to classify workers as independent contractors rather than employees.

New Rule to be Withdrawn

On May 5, the DOL issued an announcement, stating, “The department believes that the rule is inconsistent with the [Fair Labor Standards Act’s] text and purpose and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.”

Under the FLSA, employees are entitled to minimum wage, overtime pay and other benefits. Independent contractors are not entitled to such benefits, but they generally have more flexibility to set their own schedules and work for multiple companies.

Return to the Norm for Now

Workers shouldn’t expect a new independent-contractor rule any time soon. According to Jessica Looman, principal deputy administrator for the DOL Wage and Hour Division, “We are going back to the decades-old analysis and we really feel that this is the space where we can best protect workers.”

Although the DOL doesn’t plan to issue a new rule in the near future, President Joe Biden has supported an “ABC” test similar to California’s independent-contractor rule. With some exceptions, California requires all three of the following factors to be met for a worker to be classified as an independent contractor:

  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work.
  • The worker performs tasks that are outside the usual course of the hiring entity’s business.
  • The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.

Other states, such as Illinois, Massachusetts and New Jersey, apply a similarly stringent independent-contractor test.

Protecting the Right to Organize Act – PRO Act

By

The Protecting the Right to Organize Act, or PRO Act, is a proposed United States law that would amend previous labor laws such as the National Labor Relations Act, for the purpose of expanding labor protections related to employees’ rights to organize and collectively bargain in the workplace. It would prevent employers from holding mandatory meetings for the purpose of counteracting labor organization, and it would strengthen the legal right of employees to join a labor union. The PRO Act would weaken “right-to-work” laws, which exist in 27 U.S. states. It would allow the National Labor Relations Board to fine employers for violations of labor law and would provide compensation to employees involved in such cases.

Background

The Protecting the Right to Organize Act, also known as the PRO Act, follows a series of past legislation passed by Congress concerning labor rights. A number of landmark bills were passed during the New Deal period, including the Fair Labor Standards Act of 1938, which President Franklin D. Roosevelt considered one of the most important Acts of Congress at the time.

Following the New Deal, a number of bills were passed which restricted the activities of labor unions. Among these was the Labor Management Relations Act of 1947 (commonly known as the Taft-Hartley Act), which among other things prohibited secondary boycotts and closed shops.

In 2009, the Employee Free Choice Act, another bill which would have amended the National Labor Relations Act, failed to pass.

In the State of California, following the passage of California Assembly Bill 5, Proposition 22 was passed in 2020. Proposition 22 was intended to classify so-called gig workers for app-based companies (such as Lyft, Uber, DoorDash and Postmates) as “independent contractors” rather than full employees.

Content of the PRO Act

The PRO Act would amend the National Labor Relations Act of 1935 (also known as the Wagner Act), the Taft-Hartley Act, and the Labor-Management Reporting and Disclosure Act of 1959 (also known as the Landrum–Griffin Act).

According to the summary text of the PRO Act, it revises definitions under labor law, permits labor unions to encourage participation in secondary strikes, and prohibits employers from litigating against unions which conduct such secondary strikes:

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The PRO Act would prevent employees seeking to join a labor union from being fired. It would also allow unions to override “right-to-work laws”, allowing labor unions to collect dues from all employees in a workplace, regardless of whether or not they are a member of a labor union. Right-to-work laws exist in 27 U.S. states, and the PRO Act would weaken these laws in favor of workers. It would also make illegal company-sponsored mandatory meetings used to counteract and discourage attempts at labor organization. The PRO Act would classify some workers who are classified now as “independent contractors”, instead as “employees”. The bill would amend the National Labor Relations Act to define an employee as:

“An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless—

(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;

(B) the service is performed outside the usual course of the business of the employer; and

(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

This definitional amendment would allow for certain workers, such as those working in the gig economy, to attain the right to form a labor union or to bargain collectively. This would potentially include those who work for app-based companies such as Uber, DoorDash, or Lyft, and overall could include hundreds of thousands or millions of workers. The bill would allow for workers to sue employers and would make it easier for employees to join a union.

Support for the PRO Act

A letter signed by over 100 labor unions, advocacy organizations, churches, and political groups supported the PRO Act. This included but not limited to the AFL-CIO, EPI, Public Citizen, AFT, Sunrise Movement, CPD, SEIU, PFAW, CWA, FoEI, HRW, USW, IWPR, GBCS, IFPTE, NETWORK, Patriotic Millionaires, and Oxfam. Richard Trumka of the AFL-CIO said, “If you really want to correct inequality in this country … passing the PRO Act is absolutely essential to doing that.” The bill has received backing from the Labor Caucus and The Leadership Conference on Civil and Human Rights. Joe Biden endorsed the PRO Act, and has called labor law reform one of the top priorities of his administration.

Legislative Activity

On February 4, 2021, Rep. Bobby Scott (D-VA-03) introduced the Protecting the Right to Organize Act of 2021 in the House of Representatives. Of the bill’s 213 cosponsors, 3 – Brian Fitzpatrick (PA-01), Jeff Van Drew (NJ-02), and Chris Smith (NJ-04) – were Republicans; the other 210 were Democrats.

The bill passed in the House of Representatives by a vote of 225 to 206 on March 9, 2021. Five House Republicans (Brian Fitzpatrick, John Katko, Chris Smith, Jeff Van Drew, and Don Young) joined the House Democrats in voting for it, while one Democrat (Henry Cuellar) voted against it. The bill now advances to the U.S. Senate; however, the bill is unlikely to pass as it would require universal Democratic support and 10 Republican crossover votes to pass in case of a filibuster.

Photo by Thibault Penin on Unsplash