Author Archives: Mary Gemeinhardt

NEW NON-COMPETE LAW COMING TO ILLINOIS

By:       Sally A. Piefer

June 21, 2021

Non-compete and non-solicitation agreements are relatively commonplace. However, these agreements have been under increasing attack by legislatures across the country. President Biden has also expressed that one of the items on his regulatory agenda is to eliminate all non-compete agreements except for those necessary to protect trade secrets.

The Illinois legislature recently unanimously passed legislation changing the non-compete and non-solicitation agreement landscape. The Illinois Governor is expected to sign this legislation which will go into effect on January 1, 2022, and will impact agreements entered into after that date.

The Illinois legislation implements the following changes to non-compete and non-solicitation agreements:

Compensation Thresholds

The legislation voids all non-compete provisions with an employee if the employee has expected earnings below $75,000. The legislation also voids all non-solicitation provisions with an employee if the employee has expected earnings below $45,000.

The expected earnings levels include not only compensation reported on an employee’s W-2, but also elective deferrals such as employee contributions to a 401(k), FSA or HSA. The current earnings thresholds for non-competes will increase by $5,000 every 3 years through 2037 (e.g., on January 1, 2027, the earnings levels increase to $80,000). For non-solicitation provisions, the earnings levels increase by $2,500 every 3 years (e.g., $47,500 on January 1, 2027).

Adequate Consideration

The legislation requires an employer to provide adequate consideration in exchange for signing the agreement and specifically states that 2 years of employment is adequate consideration, but so is a period of employment plus additional professional or financial benefits, or merely professional or financial benefits, such as a signing bonus. Employers should ensure that the consideration being offered is specifically identified in the agreement.

Notice to Employee

Employers must give the agreement to a new employee at least 14 days before the employee starts employment. If an employer misses that window of opportunity, the employee must then be provided 14 days from receipt to sign and return. The employee can sign earlier, but cannot be forced or coerced to do so. The agreement must also advise the employee that he/she may consult with an attorney before signing. An agreement which fails to incorporate these provisions is considered illegal and invalid.

Restrictions on Enforcement

The Illinois legislature has placed several restrictions on enforcing a non-compete or non-solicit provision. For example, an employer cannot enforce a non-compete or non-solicitation clause where the employee is terminated, furloughed or laid off as a result of “business circumstances” or governmental orders relating to COVID 19 or similar circumstances—unless the agreement contains a compensation equivalent to the employee’s base salary at time of termination for the length of enforcement – minus compensation earned by the employee in replacement employment.

In addition, the legislation specifically provides that if an employee prevails in an attempt to enforce a non-compete or non-solicitation clause, the employer has to pay the employee’s reasonable attorney’s fees and costs. While the legislation does not provide a similar statutory provision for the employer, there is no restriction on incorporating such a provision into the agreement.

Attorney General Enforcement

Finally, the new legislation permits the Attorney General to conduct investigations and sue employers if there is a belief that the employer is engaging in a practice in violation of the legislation. In the event of litigation, the Attorney General can seek a temporary restraining order or preliminary injunction preventing the employer from further violations of the law, and it can recover damages, which can include a $5000 civil penalty for each violation (or $10,000 for repeat violations within a 5-year period). Each employee subject to an illegal agreement is considered a separate and distinct violation of the law.

Next Steps

Illinois is not alone. Several other states, including Arizona, Oregon, Nevada and Washington DC have also implemented new legislation in 2021 which may impact the enforceability of non-compete and non-solicitation agreements in those states. Employers with operations in multi-state locations should have their non-compete and non-solicitation agreements analyzed to determine whether these new laws will impact the enforceability of the agreements.

If you have questions about the new law, or any questions about non-compete and/or non-solicitation agreements, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.

OSHA ISSUES EMPLOYER GUIDANCE AND EMERGENCY TEMPORARY STANDARD FOR HEALTHCARE EMPLOYERS

By: Samantha J. Wood

On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance for all employers, along with a much-anticipated Emergency Temporary Standard (“ETS”), limiting the ETS to healthcare workers.

Emergency Temporary Standard for Healthcare Workers

After much consideration, OSHA determined that an emergency standard was necessary because existing standards and regulations, and the OSH Act’s General Duty Clause were inadequate to address the COVID-19 hazard for healthcare workers.  OSHA determined that these workers face the highest risk of COVID-19 exposure because people with suspected or confirmed COVID-19 are reasonably expected to be present in the workplace.

The ETS is limited to workers who provide healthcare services and healthcare support services, including employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in ambulatory care facilities where suspected or confirmed COVID-19 patients are treated.

This standard requires healthcare employers to comply with several provisions, including:

  1. Developing and implementing a COVID-19 plan that includes a designated workplace safety coordinator, a workplace specific hazard assessment, and policies and procedures to minimize the risk of COVID-19 exposure;
  1. Limiting and monitoring points of entry to settings where direct patient care is provided; screening and triaging patients, clients and other visitors and non-employees; and implementing patient management strategies;
  1. Providing and ensuring employee wear a facemask when indoors and when occupying a vehicle with others for work purposes;
  1. Continuing physical distancing, installing physical barriers, ensuring proper ventilation, and cleaning and disinfecting surfaces and equipment in accordance with CDC guidelines;
  1. Screening employees before each workday and shift and requiring employees to promptly notify the employer if the employee is COVID-19 positive, is suspected of having COVID-19, or is experiencing COVID-related symptoms;
  1. Providing reasonable time and paid leave for vaccinations and vaccine side effects;
  1. Implementing training to ensure employees understand COVID-19 transmission and situations in the workplace that could result in infection;
  1. Establishing a COVID-19 log of all employee instances of COVID-19 without regard to occupational exposure and following requirements for making records available to employees/representatives (if more than 10 employees); and
  1. Reporting work-related COVID-19 fatalities and in-patient hospitalizations to OSHA.

The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

Covered employers must comply with all ETS provisions within 14 days of its publication in the Federal Register, with the exception of the requirements related to physical barriers, ventilation and training.  Employers must comply with physical barriers, ventilation and training requirements within 30 days of the ETS’s publication.

OSHA Guidance for All Employers

At the same time OSHA released its ETS, it also issued updated COVID-19 guidance for all employers on mitigating and preventing the spread of COVID-19 in the workplace.  OSHA expressly acknowledged and adopted the CDC’s statement that fully-vaccinated individuals can resume activities without wearing masks or physically distancing, and stated that “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.”

However, OSHA’s guidance reminds employers that it still has an obligation to protect unvaccinated and otherwise at-risk employees, pursuant to OSH Act’s General Duty Clause.  In order to protect unvaccinated and other at-risk employees, OSHA recommends that employers implement multiple layers of control, such as:

  1. Encouraging vaccinations and taking steps to make it easier for workers to get vaccinated;
  1. Instructing unvaccinated workers who have had close contact with someone who tested positive, and all workers who are experiencing COVID-related symptoms or who are infected with COVID-19 to stay home;
  1. Implementing social distancing for unvaccinated and otherwise at-risk workers in communal work areas and limiting the number of unvaccinated or at-risk workers in one place at any given time (such as by implementing flexible work hours, telework, or other flexible meeting and travel options);
  1. Implementing transparent shields or other solid barriers at fixed workstations where unvaccinated or otherwise at-risk workers are not able to remain at least six feet apart from others;
  1. Requiring unvaccinated or at-risk employees to continue to wear face coverings, providing face coverings to employees, supporting all workers in continuing face covering use if they choose, and recommending or requiring unvaccinated customers or visitors to wear face coverings;
  1. Educating and training managers, employees, and other contractors on COVID-19 policies and procedures;
  1. Improving air supply/ventilation procedures;
  1. Performing cleaning and disinfection procedures;
  1. Recording and reporting COVID-19 infections and deaths (excluding employees experiencing adverse side effects of the COVID-19 vaccination); and
  1. Implementing protections from retaliation and setting up an anonymous process for workers to voice concerns about COVID-19 hazards.

In high-risk workplaces, such as manufacturing, meat and poultry processing, and high-volume retail and grocery settings, where there is a heightened risk of COVID-19 exposure due to close or prolonged contact, OSHA further recommends:

  1. Implementing staggered break times to avoid congregations of unvaccinated or otherwise at-risk workers;
  1. Staggering workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk employees; and
  1. Providing visual floor or sign markings as a reminder to maintain six feet of distance.

In determining whether to modify policies or procedures, employers should carefully consider the above recommendations, as well as CDC guidance, and other state and local requirements to ensure continued legal compliance.

PUBLIC SAFETY OFFICERS CAN NOW BRING A CLAIM FOR PTSD WITHOUT HAVING TO PROVE EXTRAORDINARY STRESS

By: Matthew Kurudza

Assembly Bill 11 was passed in the Senate on February 16, 2021 and presented to Governor Evers on April 22, 2021.  This bill, now known as 2021 Wisconsin Act 29 (Act), was signed by Governor Evers on April 27, 2021.  This bipartisan bill was passed to allow public safety officers – including law enforcement and firefighters – who have been diagnosed with post-traumatic stress disorder (PTSD) under certain conditions to receive worker’s compensation benefits without having to prove that the injury was caused by extraordinary stress.

Since the mid-1970’s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation.  Specifically, in the School District No. 1 v. DILHR  decision, the Wisconsin Supreme Court established the “extraordinary stress” standard for compensability.  This decision provided that a “mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.”  This standard was clarified in the Spink v. Farm Credit Services decision, where the court found “the amount of stress in the applicant’s occupation and field … served as the benchmark for comparison with the stress that the applicant claims entitles him or her to worker’s compensation.”  Later, the Jenson v. Employer’s Mutual Court further clarified the test stating the stress was “measured not by its effects on the victim, but by the unusual nature of the occupational stress itself.”  These onerous standards often prevented employees in high-stress jobs – such as public safety officers, from prevailing on a claim for PTSD.

The Act itself makes a few important changes, most notably by relaxing the existing “extraordinary stress” standard discussed above, along with setting caps on liability.  These changes are discussed in detail below:

First, the Act allows payment of worker’s compensation benefits if a public safety officer, such as law enforcement or firefighter, is diagnosed with PTSD by a licensed psychologist or psychiatrist, and the mental injury is not accompanied by a physical injury if proven by a preponderance of the evidence and the mental injury is not a result of a result of a good faith employment action by the employer. Wis. Stat §102.17(9)(b).

Second, the Act limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported. Wis. Stat §102.42(1p).

Third, it restricts the ability to claim compensation for such injuries and diagnoses to three times within an individual’s lifetime, regardless of a change in employment status. Wis. Stat §102.17(9)(c).

In short, this legislation eases the process of claiming a mental injury and obtaining covered treatment, and expenses for public safety officers by altering the previous standards for compensable non-traumatic mental injuries.

For more information about these changes, please contact your Lindner & Marsack, S.C. attorney at (414) 273-3910.

Current Trends & Treatment in Worker’s Compensation

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Chelsie Springstead, a Shareholder and member of the Firm’s highly regarded work injury defense team, is a presenter in the first episode of an educational video podcast series entitled “A Medical and Legal Analysis of COVID-19: Addressing Issues Surrounding Causation, Care and Courses of Action” on Thursday, April 29, 2021, at 12:00 p.m. CST.

If you are interested in attending this event, please send an email to info@crawfordevaluationgroup.com. This is a complimentary event!

Click here for more information. You will receive a link to view the broadcast closer to the date.

WISCONSIN SUPREME COURT STRIKES DOWN STATEWIDE MASK MANDATE

By: Samantha J. Wood and Sally A. Piefer

On Wednesday, the Wisconsin Supreme Court struck down Wisconsin’s statewide mask mandate, holding that Governor Evers exceeded his legal authority by issuing multiple emergency orders under Wis. Stat. § 323.10.   The court emphasized that the question was “not whether the Governor acted wisely; it [was] whether he acted lawfully.”  Section 323.10 specifies that no state of emergency may last longer than 60 days unless “the state of emergency is extended by joint resolution of the legislature.”  Absent legislative approval, the Governor is precluded from proclaiming repeated states of emergency.  Because Governor Evers extended the orders declaring a state of emergency on several occasions without legislative approval, his extensions were and are invalid.

Although Wisconsin’s statewide mask mandate has been struck down by virtue of the Supreme Court’s decision, employers must keep several other laws in mind in determining their next steps:

  1. Several municipalities have issued their own mask mandates, including Dane County, Milwaukee County, the City of Milwaukee, Wauwatosa and various other townships and villages. These mandates are enforceable if enacted by the municipality’s governing body. Employers should check with their local municipality and county before eliminating a mask requirement.
  1. Employers still maintain responsibilities under OSHA’s “General Duty” clause. OSHA’s General Duty clause requires an employer to furnish to its employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Employers can be cited for a violation of the General Duty clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. OSHA prepared guidance in March 2021 that encourages employers to require face coverings. That guidance can be found here.
  1. Employees may be eligible to receive worker’s compensation benefits as a result of contracting COVID-19 in the workplace if the employee can establish that the employee contracted the virus while performing services growing out of and incidental to that employment.

In determining whether to lift an employment mask requirement or policy, employers should consider the above-referenced legal considerations, as well as analyze the risks in their workplace, other sanitization or safety procedures in place, and whether, if a mask requirement will remain in place, the employer will consistently enforce a mask policy and issue corrective action to employees who violate the policy.

EMPLOYERS WITH OPERATIONS IN ILLINOIS BEWARE OF NEW LAWS

By: Sally A. Piefer

Last week, the Illinois Governor signed legislation which amends three Illinois laws which will impact employers with operations in Illinois.

Criminal Conviction Information

As of March 23, 2021, employers in Illinois may not use a criminal conviction (felony, misdemeanor, probation, or imprisonment) as a basis for making employment decisions—unless (1) there is a “substantial relationship” between the conviction and the job, or (2) where the conviction poses an “unreasonable risk” to property, or to the safety or welfare of specific individuals, or the general public. Employers who are contemplating employment decisions using these exceptions must consider the following six factors:

  • The length of time since the conviction;
  • The number of convictions in total the individual has;
  • The nature and severity of the conviction, and its relationship to the safety and security of others;
  • The facts or circumstances surrounding the conviction;
  • The age of the individual at the time of the conviction; and
  • Evidence of rehabilitation efforts.

Employers must document their efforts to evaluate each factor before making an employment decision.

In addition, if you intend to use a conviction record to make an employment decision, the law requires that you engage in an “interactive assessment” by notifying the individual in writing of the potential use of the conviction record. This written notice must provide detailed information about the potential employment decision being contemplated due to the conviction and must further give the applicant or employee an opportunity to respond and provide additional information before the employer makes a final decision. The employee (or applicant) has 5 business days to provide the response. If the employer still decides to take adverse employment action, the employer has to provide a second notice which describes the employer’s reasoning for the employment decision and it must notify the individual of his/her right to file a complaint with the Illinois Department of Human Rights (IDHR) if the individual disagrees with the employer’s use of the conviction record.

The requirements of the new law are very similar to the requirements employers must follow under the Fair Credit Reporting Act (FCRA). Employers who have operations in Illinois should analyze their policies and procedures and should make sure they are following the law and seeking counsel before withdrawing an employment offer or otherwise taking adverse action against an employee because of a criminal conviction.

Expanded Whistleblower Retaliation Protections for Employees

Effective March 23, 2021, the new law also allows employees to sue employers for certain whistleblowing activities. Specifically, the law, which amends the Illinois Equal Pay Act, prevents employers from retaliating against an employee who engages in the following:

  1. discloses or threatens to disclose to a supervisor or to a public body any activity, inaction, policy, or practice the employee reasonably believes violates a law, rule, or regulation, or
  2. assists or participates in a proceeding to enforce the Equal Pay Act.

Retaliation is defined broadly in the new law and includes simply issuing a “reprimand” to the employee.

Furthermore, to prevail on a claim, the employee (or former employee) need only establish that his/her whistleblowing activity was a “contributing factor” to the employment decision. An employer may defend against such a claim by showing through “clear and convincing evidence” that it would have made the same decision in the absence of the employee’s protected activity. A prevailing employee can obtain reinstatement, double back pay (with interest), and attorney’s fees and costs.

Equal Pay Certification

Employers with 100 or more employees in Illinois must now obtain an “equal pay registration certificate” from the state and provide EEO-1 type reporting to the state (or certify that it is exempt).

Employers will have until March 2024 to obtain the equal pay registration certificate from the Department of Labor (DOL). The certificate has a $150 filing fee, and renewals will be required every 2 years. The certificate requires the following acknowledgements:

  • The employer is in compliance with Title VII of the Civil Rights Act of 1964, the federal Equal Pay Act, the Illinois Human Rights Act, the Illinois Equal Wage Act, and the Illinois Equal Pay Act;
  • The employer’s average compensation for female and minority employees is not “consistently below” the average compensation for male and non-minority employees within each major job category in the employer’s EEO-1 report;
  • The employer does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • Wage and benefit disparities are corrected when identified to ensure compliance with the state and federal law;
  • How often wages and benefits are evaluated to ensure compliance with applicable state and federal laws; and
  • Whether the employer, in establishing wages and benefits, uses any of the following: (a) a market pricing approach; (b) state prevailing wage or union contract requirements; (c) a performance pay system; (d) an internal analysis; or (e) another approach used to determine what level of wages and benefits are paid to employees (if another approach is used the employer must describe the approach).

Employers who do not obtain an equal pay registration certificate, or in cases where the certificate is revoked or suspended following an investigation or audit, will be assessed a penalty of 1% of the employer’s gross profits.

Employers should begin evaluating now whether they could obtain an equal pay registration certificate and, if not, what steps will be necessary to obtain the certificate prior to March 2024.

New EEO Reporting Requirements

Finally, employers who are currently required to file federal EEO-1 reports will be required, as of January 1, 2023, to also file with the Illinois Secretary of State “substantially similar” data relating to employees’ gender, race, and ethnicity. Be advised that the Secretary of State intends to publish data on gender, race and ethnicity of each employer’s employees on its website.

Next Steps

With all of these changes, employers should begin evaluating policies and procedures currently being used and determine whether changes must be made. Employers will also need to determine whether HR and supervisors or managers need to be trained in connection with the new whistleblower and criminal conviction laws in order to minimize unnecessary lawsuits.

If you have questions about these new laws, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.

What You Need to Know About the ARPA

By: Sally A. Piefer and Samantha J. Wood

Last week, the American Rescue Plan Act of 2021 (ARPA) was signed into law.  This is a large and detailed piece of legislation that has several components that directly affect employers.

FFCRA Leave Expansion/Extension

Like the prior COVID-19 stimulus/relief bill that was discussed here, the ARPA allows employers covered by the FFCRA to continue to voluntarily provide paid FFCRA leave and receive the tax credit associated with such leave through September 30, 2021.

If you recall, the leave provisions of the FFCRA covered all employers with fewer than 500 employees, and provided two buckets of leave:

  • Emergency FMLA (EFMLA), which provided paid leave for employees who were unable to work (or telework) because they need leave to care for a child (under age 18) if the child’s elementary or secondary school or place of care had been closed or if the child care provider was unavailable because of a public health emergency.
  • Emergency Paid Sick Leave (EPSL), which provided limited paid sick leave to employees who were unable to work (or telework) because of leave needed for any of the following reasons:
    1. The employee is subject to a quarantine or isolation related to COVID-19;
    2. The employee had been advised by a health care provider to self-quarantine due to COVID-19;
    3. The employee was experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    4. The employee was caring for an individual subject to a state, federal or local quarantine or isolation related to COVID-19;
    5. The employee was caring for their child if the child’s school or place of care had been closed, or the child care provider was unavailable due to COVID-19 precautions; or
    6. The employee was experiencing any other substantially similar conditions specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

To benefit employers, the FFCRA provided a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer – subject to the FFCRA’s maximum payments.

In December 2020, the COVID-19 stimulus/relief bill was passed to allow employers to voluntarily continue granting employees EFMLA and any remaining EPSL, and receive the associated tax credit through March 31, 2021.

Now, the ARAP extends and expands the leave and associated tax credits for voluntarily providing paid leave through September 30, 2021.  The notable expansions are as follows:

  1. While the prior stimulus bill only allowed employees to use the remainder of their EPSL, the ARPA provides that employers may grant employees (and receive the associated tax credit for providing) a new ten-day bank of EPSL beginning on April 1, 2021.
  2. While the FFCRA and the prior stimulus bill allowed employees to take EPSL for six reasons (as delineated above), the ARPA allows EPSL to be taken for two additional reasons: (a) to obtain a COVID-19 vaccine; and (b) to recover from any adverse reactions to the vaccine.
  3. While the EFMLA was previously only available to employees who were unable to work or telework due to a COVID-related closure of a child’s school or childcare, the ARPA now allows EFMLA to be taken for all of the qualifying uses of the EPSL.
  4. While the FFCRA originally provided that the first two weeks of EFMLA were unpaid, ARPA has deleted that unpaid two-week provision and will allow the entire twelve weeks of EFMLA to be paid.
  5. The ARPA provides that employers may not claim the tax credits for providing EPSL or EFMLA if it only provides the leave to highly compensated employees, full-time employees, or employees with a certain tenure.

Mandatory Subsidies for COBRA Premiums

The ARPA also requires employers to pay for up to 6 months of the COBRA premiums at 100% of the monthly premium. Specifically, this subsidy applies to any employee who was involuntarily terminated (other than for gross misconduct) or whose hours were reduced and whose COBRA period includes any period of time between April 1, 2021 and September 30, 2021. Employees who voluntarily leave employment are not eligible for the subsidy.

Former employees who did not originally elect COBRA coverage are also entitled to the assistance and a new special election period. The subsidy will cover not only group health coverage, but also group dental and vision coverage, and will only apply to premiums between April 1, 2021 and September 30, 2021.

The ARPA also permits employers to decide whether they will allow an eligible former employee to switch from the coverage they had in effect at the time of the involuntary termination to a lower cost group health plan option. Eligible individuals are prohibited from opting into a higher cost group plan option.

Employers will be allowed to treat the subsidy as a credit against their share of Medicare taxes. If the credit exceeds the amount of tax owed in any quarter, the excess will be refundable.

Employers are required to provide notice of the right to elect fully subsidized COBRA to all eligible individuals. The notice contains several specific pieces of information. The Department of Labor (DOL) has been charged with preparing 2 model notices, which should contain all of the required language. The model notices are supposed to be available by April 10, 2021. In addition, employers will be obligated to provide written advance notice when the subsidy is scheduled to expire.

While we wait for the DOL forms, you should begin to identify which COBRA beneficiaries became eligible for COBRA due to an involuntary termination (other than misconduct) or reduction in hours during the last 18 months (29 months for individuals eligible for COBRA due to a disability) to determine who will be eligible for the new notices. Employers should also contact their group health plans to determine whether the employer will be responsible for issuing the new COBRA notices or whether the plan will assume those responsibilities. Now may also be a good time to review any contracts you have which transfer the obligation to provide COBRA notices so that your business is fully protected in the unfortunate event that a notice is not timely provided.

Extended Federal Unemployment Insurance Assistance

The ARPA also extends several unemployment insurance programs and initiatives through the week ending September 6, 2021, including:

  1. The Pandemic Unemployment Assistance Program, which provides benefits to independent contractors, business owners, self-employed workers, and similar workers who do not qualify for regular state unemployment benefits;
  2. Most states cap unemployment at 26 weeks. The CARES Act added an additional 13 weeks and the December 2020 Consolidated Appropriations Act (CAA) added an additional 24 weeks. ARPA now extends benefits to 53 weeks, which means that an eligible person can receive up to 79 weeks of unemployment benefits – the original 26 weeks plus 53 weeks of federal extension.

The program which provides an additional $300 per week in benefits for each person receiving unemployment benefits, in addition to what s/he is receiving through regular state unemployment benefits.

CDC Issues Interim Guidance on Vaccinations

By: Samantha J. Wood

Last week the Centers for Disease Control and Prevention (CDC) issued Interim Public Health Recommendations for Fully Vaccinated People.  This guidance can be found here.

The CDC stated that it considers an individual to be “fully vaccinated” two weeks after they have either received the second dose of the two-dose series of the Pfizer or Moderna vaccine or two weeks after they have received the single dose Johnson and Johnson vaccine.

After an individual is fully vaccinated, the CDC states that the individual:

  • Can visit with other fully vaccinated individuals indoors and in private settings without wearing masks or physical distancing;
  • Can visit with unvaccinated individuals from a single household at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
  • Need not quarantine and test after a known exposure so long as the individual remains asymptomatic.

Despite this guidance, however, the CDC continues to recommend that employers maintain routine workplace screening programs and preventative measures, including masking, physical distancing, gathering restrictions, and sanitation and cleaning procedures. Additionally, for employees in high-density workplaces, such as meat processing and manufacturing plants, the CDC continues to recommend that vaccinated individuals are tested after an exposure to COVID-19.

This guidance is consistent with that issued by the Occupational Safety and Health Administration (OSHA) in January 2021, wherein OSHA encouraged employers to continue to follow protective measures regardless of whether employees are vaccinated.

Employers should also be cautious in modifying or discontinuing preventative measures, as it could lead to safety complaints, could spark discussions about who is/is not vaccinated and the reasons behind that decision, and discrimination or disparate impact concerns for those who are not being vaccinated due to religious or disability reasons.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about this guidance or any other labor or employment issue involving your business, please contact us at any time.

President Biden’s Personnel Changes at the NLRB Under Scrutiny

By:  David Keating

Within two days of taking office, President Biden fired National Labor Relations Board (“Board”) General Counsel Peter Robb, Robb’s Deputy General Counsel Alice Stock, and named Member Lauren McFerran, the only Democratic member of the Board, as its Chairman.  These unprecedented firings have resulted in great scrutiny of the new administration from employers.

Following the firings, President Biden named Peter Sung Ohr as Acting General Counsel of the Board.  Ohr is a career employee of the Board. He served as a Field Attorney, Deputy Assistant General Counsel in the Board’s Division of Operations-Management, and as a Regional Director of the Board’s Chicago Regional Office.

Since being named Acting General Counsel, on February 1, 2021, Ohr rescinded a number of General Counsel Memos issued by Robb during the Trump administration.  According to Ohr, he determined that a number of outstanding Robb memoranda are either inconsistent with encouraging the practice and procedure of collective bargaining, the exercise by workers of their full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employment.

A summary of notable Robb memoranda that were rescinded by Ohr:

  • GC 18-04, Guidance on Handbook Rules Post-Boeing (June 6, 2018) (instructing Regions on the placement of various types of employer rules into the three categories set out in the then-recent Board decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017)). Ohr indicated that this Memorandum is being rescinded as it is no longer necessary, given the number of Board cases interpreting Boeing that have since issued.
  • GC 18-06, Responding to Motions to Intervene by Decertification Petitioners and Employees (Aug. 1, 2018) (requiring Regions to no longer oppose intervention in ULP hearings by proposed Intervenors such as individuals who have filed a decertification petition or circulated a document upon which the employer has unlawfully withdrawn recognition of the collective-bargaining representative). Ohr noted that this is inconsistent with prior practice.
  • GC 19-03, Deferral under Dubo Manufacturing Company (Dec. 28, 2018) (instructing Regions to defer under Dubo [142 NLRB 431 (1963)], or consider deferral thereunder, of all Section 8(a)(1), (3), (5) and 8(b)(1)(A), and (3) cases in which a grievance was filed and not to apply Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014) (“Babcock”) to cases that could be deferred under Dubo). Since Babcock was overruled by United Parcel Services. Corp., 369 NLRB No. 1 (Dec. 23, 2019), GC 19-03 is outdated. To the extent the memorandum made changes to case handling procedures relating to the deferral of cases under Dubo, Ohr directed Regions to follow Section 10118.1(c) of the Unfair Labor Practice Casehandling Manual and the memoranda cited therein.
  • GC 20-08, Changes to Investigative Practices (June 17, 2020) (instructing Regions on how to proceed during investigations in connection with securing the testimony of former supervisors and former agents, and how audio records should be dealt with during investigations). Ohr noted that this Memorandum is being rescinded because portions are inconsistent with prior practices. Regions should continue to not accept recordings that violate the Federal Wiretap Act and to apprise individuals who proffer recorded evidence when it may violate state law.
  • GC 20-13, Guidance Memorandum on Employer Assistance in Union Organizing (Sept. 4, 2020) (requiring Regions to urge the Board in charges involving union neutrality agreements to adopt the “more than ministerial aid” standard used in union decertification cases).

Ohr’s full memorandum can be viewed here.

Although Ohr’s recent action does not change Board precedent, it provides insight as to his priorities in the event he is named General Counsel.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent actions at the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.

LINDNER & MARSACK, S.C., JOINS THE GAVEL, A NATIONWIDE NETWORK OF DEFENSE FIRMS AND INSURANCE SPECIALISTS

Lindner & Marsack, S.C., today announced that the Firm has joined The Gavel your claims defense network,® a nationwide network of defense firms and insurance specialists. The Gavel was designed by experienced insurance industry professionals to streamline their work by providing direct access to and connections with experienced, vetted insurance defense attorneys and insurance specialists through a web-based, single-access point.

“The Gavel provides us with a nationwide platform to assist our insurance carrier partners looking for representation or counsel in other jurisdictions,” says Firm President Oyvind Wistrom. In addition, the Firm hopes to become a trusted resource for insurance carriers and clients of members of The Gavel in other states. “As these carriers and clients look to The Gavel for assistance connecting with an experienced, vetted Wisconsin defense firm, we are in a great position to leverage our deep experience handling both Employment Practice Liability Insurance defense matters as well as Worker’s Compensation defense matters,” added Wistrom.

In addition to connecting counsel with insurance specialists, The Gavel also hosts several conferences and events throughout the year that Lindner & Marsack, S.C. attorneys will attend. In 2021, The Gavel will continue to publish members’ success stories and legal updates in its magazine, The Gavel Strikes!, and it will launch The Gavel Course Catalog with web-based and in-person course selections for industry professionals to receive training and accredited education sessions.

For carriers, clients and friends of the Firm looking to connect with an experienced insurance defense firm in other states, please visit the website www.TheGavel.net. For members and friends of The Gavel seeking representation in Wisconsin, please contact Daniel Finerty at (414) 226-4807 or e-mail to dfinerty@lindner-marsack.com for assistance.

About The Gavel

The Gavel is a nationwide network of vetted law firm and specialist members. Its primary mission is to streamline work of insurance industry professionals by providing a single access point to some of the most qualified professionals in the industry.