COVID-19 Labor and Employment Teleforum Series #3

Listen & Download

Employers are increasingly being faced with difficult issues with respect to COVID-19, including challenging labor and employment issues. Various federal and state statutes present compliance issues for employers, particularly given the recent enactment of the First Families Act and the CARES Act at the federal level. Existing federal statutes such as the National Labor Relations Act and Title VII of the Civil Rights Act also present labor and employment law challenges for employers. This three-part teleforum series will review federal and state labor and employment issues and options for employers to consider. Federalist Society Labor and Employment Executive Committee member G. Roger King will be the speaker for this teleforum episode. Mr. King is Senior Labor and Employment Counsel for the HR Policy Association and previously a Partner at the Jones Day law firm.

For refernence, click here for the slides to today's presentation, and click here for the checklist.

Featuring:

G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Greg Walsh:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is the third in our COVID-19 Labor and Employment Teleforum Series. My name is Greg Walsh, and I am Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us G. Roger King, a Senior Labor and Employment Counsel at the HR Policy Association.

 

After our speaker gives his opening remarks, we will go to audience Q&A. However, you will hear a prompt in a moment indicating that the floor mode has been turned on. To request the floor before the traditional end-of-call roundup, enter star and then pound. When we get to your request, you will hear a prompt, and then you may ask your question. We will answer them in the order in which they are received.

 

      Thank you all for sharing with us today. Mr. King, the floor is yours.

 

G. Roger King:  Thank you, Greg, and thanks everybody for joining this morning. Good morning if you are in the Mountain or Pacific time zones, which I am in the Mountain time zone, or good afternoon if you're in Central or Eastern.

 

      As Greg noted, this is the third and concluding part of our series of COVID-19 labor and employment issues. As has been the case in the first two parts of our series, I'm going to be referring to a slide deck—actually, two slide decks—today that are posted on The Federalist Society webpage. If you would just log on to Federalist Society, you'll see today's program. You can scroll down, and you can see where to access the primary slideshow and then the legal checklist that I'm going to refer to later in the program.

 

      I'm at Slide 1 of the slide deck. Where we left off at the conclusion of our #2 in the series of discussions in this area is the National Labor Relations Act. We covered this in part, but I'm going to do just a quick refresher.

 

      The bedrock of employee rights in the workplace really is the National Labor Relations Act. As you see on Slide 1, and as we discussed previously, Section 7 of the NLRA really is the specific point of reference, and the latter part of that section where employees can come together for their mutual aid or protection. As you may recall, the NLRA is applicable to the private sector only; it does not cover governmental entities. It does also exclude railway workers and airline workers that are covered under the Railway Labor Act. But, for the most part, the NRLA is the primary statute with what is recognized as the starting point for free speech in the workplace or concerted protected activity, as we call it.

 

      The real key, as you'll see on Slide 2, is there must be some nexus between the actions or activities in question and the interest of employees as employees, i.e. terms and conditions of employment.

 

      We covered briefly last time safety-related walkouts and strikes. I'm now at Slide 3. As you may recall, for non-union employees—those that are not represented by a labor organization—Section 7 applies with equal force as to those that are represented. So Section 7 is broad; the NLRA is broad, and a misconception some have that it only applies to unionized workplaces is an incorrect assumption. The NLRA applies to all workers in the private sector, excluding rail and air employees.

 

      If we have an issue of alleged safety violations in the workplace involving non-represented employees, the threshold for those employees to refuse to work or walk out from work and be protected, i.e. they can't be disciplined or terminated, is rather low. One would argue they should've articulated a reasonable good faith belief, but that's not really where the case law has led us to date; although, that is a bit muddy in certain areas.

 

      Here, of course, again, we must have more than one employee to have concerted activity, and the employer in such a situation does have a right, of course, to continue to operate its business, but it cannot terminate the individuals that are engaging in the safety action because it's protected.

 

      Moving to the next slide, we're also just going to refresh again where we go for unionized workers, as you see in Slide 4, and Section 502 of the Labor Management Relations Act comes into play here. One thing to bear in mind: Even if the unionized employer has a no-strike clause, which virtually every CBA does, Collective Bargaining Agreement does, that no-strike clause may not be applicable in a safety strike or a safety refusal-to-work situation. In fact, in most instances, it's probably not going to be something the employer can reply upon.

 

      Here, however, before unionized workers can walk out or refuse to work, there's a higher standard. There must be an ascertainable objective evidence situation wherein, at least articulated by the complaining employees, an abnormally dangerous condition for work exists. Here, this can be done on an individual basis. It does not require two or more workers.

 

      Again, the individuals and employees complaining cannot be terminated or replaced because this action is protected by statute. So employers need to be careful in this area of safety strikes, and we have, I think, emphasized that throughout our series that this is an area that employees should seek counsel and should be quite careful.

 

      Moving to Slide 5, recent guidance from USDOL indicates that if we had Federal Pandemic Unemployment Compensation -- as you know, it expired on July 31. Discussions underway in the Congress and at the White House whether to reinstitute it. But guidance provides that employees who refuse to work in unsafe working conditions were eligible for the Federal Pandemic UI benefit, and such would be the case if we have, I believe, a new benefit replacing the expired $600 benefit.

 

      Now, let's move to social justice strikes. That really has been at the forefront of a lot of discussion of employee and employer rights, and as you can see on the screen, this is an area where we have some ambiguity. What is the right of the worker to refuse to work, leave work, to protest a situation, go to a rally, etc.? There's really virtually no case law under the National Labor Relations Act on this issue.

 

We do have a memorandum from the office of general counsel, the legal arm of the National Labor Relations Board. This dates back to 2017 when we had immigration uprisings and days with immigrant protests and the like. You may recall there were numerous raids by immigration services officials on employer plants. There were issues as to whether individuals were properly credentialed to be in the United States to work, etc.

 

      As you see on the screen, the associate general counsel of the Board at the time found that there was sufficient nexus between the immigration protests and terms and conditions of employment to make the activity protected. So if employees left their work station to go to a protest, under this reasoning, the employer could not discipline them or terminate them.

 

      We think—and again, this has not been the subject of any Board decision of revised opinion of the general counsel's office of the Board—we think the social justice walkouts and other types of activities by employees would be similarly protected because the organizations sponsoring such activities, primarily labor organizations, for example, Service Employees International Union, has articulated a worker agenda connected with the racial justice or injustice platform, particularly minimum wage, Fight for $15, safety issues in the workplace.

 

      So one could argue there is a sufficient nexus that has been articulated and established to support these types of activities to be protected. Again, an employer does, however, have a right to continue its operations and can hire at least temporary workers. And, furthermore, workers that do engage in these types of activities cannot put the employer's place of business, its operations, in jeopardy.

 

      For example, if you are a stationary engineer, you cannot leave an employer's boiler systems at risk, or nurses could not walk out of the operating room with patients that need medical attention, etc. So there are limits, but again, I want to stress here the protected activity doctrine of Section 7 is quite broad and, in all likelihood, a strong argument could be made that social justice walkouts and strikes are protected under the National Labor Relations Act.

 

      Let's go on to the next area that has received a lot of attention, and it's employee dress codes. And this, you might say in the first instance, "Well, why are we talking about dress codes?" Well, paraphernalia in the workplace, most recently masking, has become a way for employees to express their opinion about many issues, whether it be safety-related issues in the workplace, whether it be social justice issues. A message, a slogan, on the mask, etc. can be utilized, is being utilized, by certain workers.

 

      So what are the employee rights? What are the employer rights in this area? Well, probably the best way to start this is to look at some recent cases, and I think that will bring the discussion into a sharper focus.

 

The In-N-Out Burger case, as noted in the next slide, is the first case I'd like to review. Now, just as a footnote, for those of you who live in the western part of the U.S. or have visited on a somewhat or even infrequent bases, you really have to go to an In-N-Out Burger at least to experience it once. Great restaurants: exceedingly clean, well run, great food, hard to beat. So check them out. They're an American icon, I think.

 

      At any rate, In-N-Out Burger, like many companies, had a very strict dress code and had a very strict policy prohibiting buttons, badges, pins, insignia, except on two occasions: the company had a Christmas or a holiday pin that employees wore. Very small. You can see it on the screen. And also, at a certain point in time in the year, it was mid-year as I recall, the company had employees wearing a button for their foundation, their charitable arm. You can see both of those pictures.

 

      Well, employees in one of the Texas outlets of In-N-Out showed up for work with a Fight for $15, the minimum wage movement in the country. They were asked to remove those Fight for $15 buttons; they refused. The employer insisted, and an unfair labor practice charge was filed by the employees that were disciplined.

 

The question before the NLRB, and ultimately the Fifth Circuit Court of Appeals in New Orleans, was whether the employer had a right to prohibit such buttons from being worn given its strict appearance and button and badge policy, and given its appearance policy.

 

      As you see on the screen, on the slides, the employer lost, both at the Board and in the court of appeals. What's at play here is the Supreme Court decision of many years ago in Republic Aviation where the Court held that we must have a balancing of employer interest and employee interest.

 

For an employer, essentially, to prevail in this area to prohibit buttons, badges, and insignia with slogans, messages in the workplace, it must establish special circumstances, and it must show some type of interference, or a strong likelihood of interference, with customers and others that do business with the entity in question.

 

      That's, essentially, the holding. As you can see on the screen, there are articulated areas where the Board and the courts have looked to justify an employer prohibition of buttons and badges—and I’m now at Slide 11. If the employer could show that the button or badges, insignia, bling, what have you jeopardize employees' safety or could damage machinery or products or result in employee dissension and arguments in the workplace disrupting customer service, unreasonably interfere with the public image that the employer has established—and that was one of the central points that In-N-Out Burger executives made in their case in court and before the Board.

 

      But again, that employer, like many, have permitted these exceptions and had not really, according to the Court, articulated a strong case under the special circumstances exception. As you see also there on Slide 11, the Board and the courts have also stated the employer need not show actual harm in order to establish special circumstances.

 

      That case, I think, shows how difficult it is for an employer to prevail. In-N-Out Burger filed a petition for certiorari, by the way, with the Supreme Court. The Court sat on the petition for a period of time. Many of us thought they might accept it, particularly given the Court's recent ruling in the Janus case on the theory that this was compelled speech that the government was forcing on the employer, but ultimately, the cert petition was not accepted.

 

      All right, let's go to Slide 12. Staying with this area of employee dress codes, the Walmart case. Here, on a split decision, Walmart wins in part and loses in part. Now, the Walmart dress code policy was that the employee could wear a very small pin or button that was consistent with its dress code and that it also would permit messaging to be on certain buttons or badges as long as the message was content neutral and was small. Non-distracting logos and graphics, those were fine, and no larger than the size of the employee name badge. Now, these are for customer-facing employees, similar to the In-N-Out Burger case where we had customer-facing employees.

 

      The Board, however, found that this Walmart policy was not valid or lawful as it applied to employees that were not customer facing that were in other areas of the workplace. So that's an important distinction. For the employer to prevail in these types of cases, by and large, you're going to have to show some customer-facing, patient-facing, or client-facing situations.

 

      Let me spend just a moment on health care. In the health care area, we have an exception where a health care employer can generally prohibit any types of buttons, badges, or insignia in patient care areas. That's the Long Beach case that you see on Slide 13. In non-patient care areas, individuals that do not have patient care interaction, generally the employer's going to have a very difficult time prohibiting buttons, badges, insignia. Again, special circumstances test is applicable.

 

      All right. Let's move to another case, the Southern New England Telephone Company case out of the D.C. Circuit. I'm at Slide 14. Here, this AT&T affiliate was about to engage in a rather extensive reduction in the workforce. The union, the Communications Workers union that represented the employees, were very much against this reduction-in-force plan and had t-shirts made that had the message you see on Slide 14. Essentially, what the message was that the AT&T employees were a victim of the internet highway, that they were inmates and prisoners, and that they had been mistreated, or were about to be mistreated, by the employer.

 

      The Board found for the union and the employees. The D.C. Circuit overruled, and interestingly, then the D.C. Circuit Judge Kavanaugh, now Justice Kavanaugh, starts the majority opinion with what you see at the bottom of Slide 14: "Common sense sometimes matters in resolving legal disputes. This case is a good example." One of my favorite clauses from a circuit court decision. Judge Kavanaugh really, from my perspective, nailed it as he started this opinion.

 

      As you see in Slide 15, the court goes on to say, "No company, at least one that is interested in keeping customers, presumably wants its employees walking into peoples' homes wearing shirts that say "Inmate" and "Prisoner." And the court found that the company could lawfully prohibit employees from displaying such messages with respect to customer-facing positions.

 

      Interesting, the court also addressed the issue of disparate or discriminatory treatment. AT&T, like many employers, had permitted employees to wear other buttons, badges, insignias, etc. from time to time, but the court said that in and of itself is not a losing situation for the employer. Again, common sense has to prevail. You look at the message. You see if special circumstances test has been established.

 

      Let's move to the Starbucks case. Again, Starbucks had this button/badge policy, and the court looks at the special circumstances and makes a judgement call.

 

      I think you're beginning to get the message here. I'm going to move quickly to the next slide. It's a supermarket case. There, the unionized workers had a dispute with the employer, and the employees showed up with buttons that said "DON'T CHEAT ABOUT THE MEAT," and the employer prevails. That was over the top. That interfered with customer relations, and the employer prevails.

 

      The last case I want -- well, actually, there are two more I want to review with you. The Bell-Atlantic case. Here, we had, again, a reduction in the workforce, a change in working conditions in the whole communication industry. Of course, this has been happening from time to time. In reaction, the company planned a RIF.

 

Again, the union put together t-shirts for unionized workers to wear, and these were even stronger than the previous prisoner type of t-shirts. Here, the t-shirts, as you see on Slide 19, stated "Roadkill." The roadkill t-shirt was red and white in color. A picture of it is on the screen. It contained the words "Info Superhighway" in large letters over a cartoon-type image of a squashed rodent lying in a pool of blood in the middle of the road and with the label "Bell-Atlantic Employees" -- I mean, strong stuff.

 

      These are, again, shirts to be worn with customer-facing employees and others in the AT&T organization. The NLRB stated "an employer's concern about public image presented by the apparel of its employees is a legitimate component of the special circumstances standard" and upheld the employer's banning of such shirts.

 

      We have one additional case I wanted to share with you. It's a Healthcare Solutions Medco case out of Las Vegas. Here, again, the D.C. Circuit concludes the special circumstances test is met by the employer. The employer here had a special initiative going on, known as "WOW," to promote the company's incentive program. Employees showed up to work. "I don't need WOW to do my job," and the employer prevails. Again, prevailing in the special circumstances test.

 

      So, in this day and age of apparel, dress codes, etc., employers do have rights in this area, as do employees. The special circumstances test is what you need to look to, and you need to look at Judge Kavanaugh's reasoning and the D.C. Circuit's reasoning where hopefully some common sense comes into play here, and you really do look at the wording of the buttons, badge, or insignia in question.

 

      Let's go to Slide 21. What about offensive speech in the workplace? As I think virtually everybody on this call is well aware, the First Amendment does not apply to speech in the private sector workplace. It applies to governmental action, universities, government entity workers, etc. So we need to make sure our clients and our colleagues know that we're not talking First Amendment when we talk about speech in the workplace in the private sector.

 

      The NLRB and the courts, however, have held in virtually every instance that employees do owe their employers a duty of loyalty, and employees cannot simply trash the company's products, services, or goods. There is a duty of loyalty, and employers do have rights to discipline in this area.

 

With that said, previous National Labor Relations Board decisions have provided a considerable amount of protection for [inaudible 00:25:45] speech in the workplace, even racially insensitive speech in the workplace. This present NLRB decided to reexamine those cases in the General Motors case that's referenced on Slide 21.

 

      Let's go to Slide 22. As I just mentioned, a wide degree of protection, historically, to employee's speech under Section 7 of the National Labor Relations Act. On July 21 of this year, the current Republican-controlled NLRB held in the General Motors case that this standard has to change; that employers that have policies and procedures in the workplace can, in fact, enforce them if they do so on a non-discriminatory basis and do follow the policies and procedures.

 

That's probably most important case established or issued by the National Labor Relations Board this year. It is of great importance because employers now do have the right to engage in some type of rational decision making. They do have the ability to discipline employees, etc.

 

Interestingly, the EEOC filed an amicus brief in this case supporting the proposition more control for the employer, particularly in racially insensitive speech. I think that's something that we should bear in mind. There was certainly tension between Section 7 of the NLRA and Title VII.

 

So I would commend that case to your attention. It is, as I've said, I think, the most important case issued by the NLRB this year. It'll have ramifications for years to come and hopefully will not be overturned when we do have a potential change in control of the NLRB in August of 2021.

 

      I'm happy to have any discussion with people about that case as we get to the Q&A portion of our program today.

 

      Greg, let me just stop there for a moment. Do we have any questions that have come in so far?

 

Greg Walsh:  We don't have any callers in the queue. Keep an eye out for emails announcing upcoming teleforum calls. You can also consult the full schedule of our upcoming teleforum events on The Federalist Society's website, fedsoc.org. Also available there are podcasts of previously recorded calls you may have missed as well as on iTunes, Spotify, and Google Play.

 

Roger, are you ready to continue, or shall we open the floor for a more formal audience Q&A?

 

G. Roger King:  I'm okay opening it for a moment. Go ahead and do so.

 

Greg Walsh:  Okay. I'd like to encourage callers to join the question queue.

 

G. Roger King:  All right. Well, let's keep moving forward. Let's go to what people might be posting, Greg, on their websites, particularly private websites that they may have, whether it be Facebook or otherwise.

 

We've had a lot of issues come up there where an employee will post a message on their website believing it to be protected, believing it to personal, but the issue then arises. One of their so-called friends on the website decides to share it with people outside of the Facebook group, and the employer then learns of the posting.

 

The issue then becomes what about the issue of protected concerted activity? Is this protected or not? What if the message on the website is a racially insensitive post, albeit on a private post? Does the employer have a right, with considerations of Section 7 of the National Labor Relations Act, to discipline the employee? The conclusion is mixed.

 

I think many employers in this area are at a point of really trying to struggle with protecting the reputation of the company with the right of employees to post what they believe is a protected expression of their beliefs. Again, realizing the First Amendment is not in play here unless we have governmental action.

 

There's no real clear answer to this. Again, in looking to the General Motors case, which doesn't define the parameters of how far an employer can go to protect its reputation and to control at least speech in the workplace. But again, here, we have activity outside of the workplace.

 

I think this is a difficult area. This is a policy judgment call that employers are going to have to make. That said, I think employees that are disciplined for private postings certainly may have a cause of action under the National Labor Relations Act Section 7 if -- and again, it's two or more concerted individual activity situations. A sole post by an employee would not meet the concerted standard.

 

That said, what we have next in the slides, as you can see, is a series of state law protections that many people are not aware of. Many states, like California, as you see on the screen, have protections for employee activity outside of the workplace. It's interesting to see how these statutes might come into play because we have had situations clearly where employees have been disciplined in this area. We're not sure exactly how these are going to be interpreted and applied.

 

We also, I think, have a very interesting federal preemption issue that may arise under these state statutes. For example, if an employee, a group of employees, tried to avail themselves of the California statute, would the federal labor law be found to preempt such statutes?

 

As you can see—and I'm not going to spend time delving into each of these state statues; you can scroll through the succeeding slides—the employees are protected in a variety of areas, but many of these statutes have their origins in use of marijuana outside of the workplace with the state statutes finding such activity to be protected. The whole substance abuse discussion, of course, comes into play in those statutes.

 

The final slides, that you see, in this state law area deal with political activity, and many states, including, as noted, Ohio, have state statutes that prohibit employers from disciplining employees for their political activities, but also prohibit employers from engaging in any forced audience, forced messaging to employees in the political arena. As we move closer to the elections this fall, some of those statutes may come into play. Again, it certainly gets into activity in the workplace and free speech in the workplace.

 

Let's move from there, following our outline, to WARN Act situations. There have been issues under the WARN Act that arise in the COVID-19 area. Essentially, what we're talking about here is, is this such an unforeseen situation and circumstance that the employer has a right to deviate from the otherwise notice period required by WARN? That is an issue that is yet to be resolved. As you can see on the screen, there are lawsuits that are being filed around the country regarding that area, and we're not sure how that's going to play out.

 

At some point, we're going to get a good federal court decision, I'm sure, in this area that will define unforeseen circumstances and what the employer can avail itself of by way of a defense. So I would watch those cases carefully. If you are representing an employer that had to take very quick action on furlough, layoffs, etc. and deviate from the WARN Act advance notice requirements, you need to pay attention to how this law is developing.

 

I also want to mention as we close out this series the amount of litigation that we have in the area of COVID-19 labor and employment. As you know, pending before the Congress at present is a House-passed bill that's knows as CARES Act or HEROES Act that would provide additional protection for employees. The House-passed bill does not contain any curtailment of liability for employers.

 

As you, I'm sure, have followed in the media, Leader McConnell, other Republican senators particularly, have stated that if the Senate is going to pass another bill in the COVID-19 legislative area, some liability shields will be applicable and some federal preemption will be required.

 

That's a debate that we're going to see continue for some period of time. That's a debate that's going on right now. Discussions on the one house, Democrat leaders and Republican leaders. I would stay closely attuned to that.

 

But, as you see on the slides at the end of this presentations, there are an increasing number of lawsuits filed, including class-action lawsuits, throughout the country. Tammy McCutchen, who joined me in the previous series here, had a number of slides which I think are available still on The Federalist Society website about potential liability points under the Fair Labor Standards Act, and I would highlight those particularly for your attention because the class-action or collective-action aspect of rights for employees under both federal FLSA and state statutes are considerable.

 

We did not have time to put together an extensive discussion of state laws in these areas I've been talking about today, but as I'm sure listeners are well aware, there are a plethora of state laws that will come into play. That's what's interesting, particularly to me, about this debate at Congress at the moment: state law protection and potential federal preemption of those causes of action.

 

The bedrock of at least the Republican proposal is there would be a defense for employers that can establish that they have done everything practically, in their control, to provide PPE, to provide necessary ventilation, and other protections for employees, they have followed social distancing policies, and they have followed CDC policies. Those are important considerations that I'm sure will continue to be discussed even if we don't have federal preemption.

 

My advice to employers is if the employer is being sued under a COVID-19 theory, that it establish, whether it be in state court or federal court, that it has followed every known CDC guideline, OSHA guidelines—we don't have rules coming from OSHA, as you know, in the COVID-19 area—but it has engaged in every practical and available protection for employees. I think a judge will listen to that, and that's been the case so far, I think, in certain limited judicial circumstances.

 

Greg, let me stop there for a moment before I talk about some CDC issues and our legal checklist. Do we have any questions that are coming in?

 

Greg Walsh:  We do not have any questions or callers in the queue.

 

G. Roger King:  Thanks, Greg. So the CDC and the Department of Labor have both issued guidance in this area, and we've included some of the Department of Labor guidance in the slideshow today.

 

      I think one of the most important things that the Wage and Hour Division has recently come out with by way of guidance is the interruption in work, particularly for employees working from home, and I want to spend just a moment talking about that.

 

      This guidance states that an employee working from home can start her or his workday, log onto their computer, start their work activities, and then stop and engage in other activities that are necessary at home—for example, meals for the children, helping online education, doing other duties that are necessary at home—and then return to employer's work needs and throughout the day have stops and starts.

 

Why is that important? Well, under most traditional circumstances, obviously, employees at the workplace, there are established break times, and generally, for an employer, as Tammy mentioned last week, not to be required to pay for such time, there has to be a minimum of a 30-minute timeframe. There are some cases that are slightly under that, but as such, it's a 30-minute, uninterrupted break. Here, we could have a series of breaks and the question is, are those breaks all 30 minutes? Are they continuous, etc.?

 

      So what the Department of Labor has essentially said: you do not need to have a continuous work day. You can have breaks, stops and starts. Now, that said, the employee must be compensated for all time spent working, and there should be some ability for the employee to establish that she or he has in fact engaged in the work time, and the employer, of course, should monitor that. So that's one important guidance point that's come out from the Department of Labor.

 

      There also have been recent guidances that have been issued regarding interpretation and application of the First Families Act. You see on the screen, however, the State of New York challenged certain of that guidance. This was a decision that was just issued, I believe, on August 3.

 

As you see on the screen, the federal district court judge in that case struck down at least four parts of that guidance; one on the intermittency issue. The judge found that the guidance was not complete or accurate on intermittency. I think that's debatable. The judge also had the interpretation of availability of work and found that the Department's guidance was not complete.

 

So, if you are in an interpretation issue of the First Families Act, look at the New York litigation closely because what we have going on there is a full-scale attack on the federal interpretation of the guidance and the state law pushing back on it. It's going to be interesting to see whether other federal courts that are faced with those types of situations will agree with the New York court.

 

      I'm not aware of any challenge in other jurisdictions yet like the New York case, but I'm sure they may be forthcoming, and I'm not certain whether DOL will take an appeal. I would certainly think so given the breadth of the judge's decision.

 

      Let's talk about the CDC guidance also. CDC, if you've not gone on their website, has come up almost on a weekly basis with increasing specificity on protections and guidance for both employers and employees in the workplace. I would commend that to your attention, particularly in the ventilation area, particularly in the air filtration area, and the masking area. Some really excellent guidance from CDC.

 

As mentioned previously, again, this is guidance that I think employers can and should rely upon not only as a matter of employee worker safety but also as a matter of common sense and also, ultimately, perhaps, as a matter of protecting the employer from litigation in this area.

 

      One area I skipped over, and I want to go back to Slide 31. I didn't mean to omit a discussion regarding unionized employers and COVID-19 labor and employment issues. As you are probably well aware, under the National Labor Relations Act, unionized employers cannot unilaterally change terms and conditions of employment. They must consult with, negotiate, or have at least discussion with the union in question before making changes in terms and conditions of employment.

 

      Well, there are certain limited exceptions to that area. For example, in tropical storm/severe weather situations where an employer may need to staff alternatively its locations to keep the power grid up and running or similar circumstances—use management employees differently, change assignments of work—employers have been given exceptions to this no unilateral change doctrine.

 

      But that's very limited, and the NLRB general counsel, Peter Robb, recently put a memorandum out that you might want to look at in that area that outlines the law of when unilateral changes can be made. But again, there must be very special circumstances, and as you see on Slide 32, must be extraordinary events, unforeseen occurrences having a major economic impact requiring the employer to take immediate action. Past examples, as I stated previously, have included natural disasters, such as hurricanes, debilitating ice storms, and the like.

 

      Again, advice in this area: even if you have those circumstances, even if you wish to avail yourself of those special exceptions, I still would advise that you get with the union representatives as quickly as possible to talk through the employer concerns.

 

      That said, we have had employers take unilateral action in the safety area requiring certain safety measures. As a general rule, we've seen cooperation between employers and unions in this area. There has been some pushback in the health care area, but again, employers, I think, in this area -- if there are special circumstances, if there are safety concerns that require immediate action, the employer has at least an out to do so.

 

      Moving quickly to Slide 33, virtually every collective bargaining agreement that I've seen has a force majeure clause of some type. Maybe it's intermingled with the no-strike area. That said, unionized employers should examine their collective bargaining agreements, look at the force majeure clauses, and strengthen them in light of COVID-19 and the experiences that we all are going through. If the employer in a unionized environment does not have such a clause that would arguably permit it to take unilateral action, it certainly should include one.

 

      I've discussed the WARN Act. One thing that I want to emphasize that I didn't mention that there are a number of states, as you see on Slide 34, that have their own state WARN Act considerations and statutes and guidance. California, at least initially, did suspect some of the requirements of the California WARN Act. Other states have not done so, but make sure that your client is cognizant of any state WARN Act that might be in place.

 

      We've talked and I'm now going back through and looking at the remaining part of our slides to make sure we've covered the area. We've talked about the Department of Labor FAQs and the hours worked issues. Again, stay tuned. We see the Department issuing rules and guidance much quicker than they have in the past, and we expect more guidance to come out in the near term.

 

      Health care provider definition also is subject to the New York litigation. You can peruse that at your convenience.

 

      I'm now on Slide 41, and I want to just complete our discussion this morning. Again, noting in July alone, we had 158 lawsuits filed that arguably are in the COVID-19 labor and employment area. And with the statute of limitations as they are, both at the federal level and the state level, we can certainly expect a great deal of more litigation.

 

      As you see in the screen, we've had, at least arguably, over 460 lawsuits, including 55 class actions. So I believe the Senate certainly is well within its policy sound discretionary area to take a look at this. This is an area that should not be dismissed lightly. Certainly, employee rights for a safe workplace are important, but there has to be a balancing of interests here.

 

      Greg, that concludes the first slide show I have for today. I want to segue over to the legal checklist, but let me just stop there again to see if we have any questions or comments.

 

Greg Walsh:  We do not have any callers in the queue. The link to the FedSoc legal checklist that Mr. King is about to go to is also included on the event announcement email for this teleforum.

 

G. Roger King:  Thank you, Greg. If you would, take a moment; click on what Greg just mentioned, the legal checklist. What we've done at the HR Policy Association is to prepare a legal checklist. This is what I would call an issue-spotting checklist for employers to review regarding potential labor and employment issues and COVID-19 situations.

 

It follows, in large part, the series that we have been putting on for The Federalist Society in this area. It has checklists under the National Labor Relations Act, as you will see. It has checklists under the WARN Act. We also have other potential statutes that could come into play here.

 

I've not mentioned in this presentation the Genetic Information Nondisclosure Act, GINA. Why does that come into play? Well, if an employer starts asking questions about an employee's family health history, GINA issues may surface. So be careful. If your client or if an employer is delving into those areas, certainly consider GINA.

 

Further, we have not discussed today privacy issues. There are privacy issues that can come into play, particularly in contact tracing and disclosure. As we mentioned previously, if the employer is receiving employee medical information, which the EOC has given a green light to in many circumstances, that information must be treated as confidential medical information, separated from the employer's otherwise personnel file documents. They're not disclosed to coworkers as a general rule. And that could be a dilemma. That could be an issue as we have employees complaining about coworkers that allegedly have COVID-19 symptoms or have been exposed. Do the names of those workers surface? Be careful in the privacy area. We include that in the checklist.

 

So I commend that to your attention. It might be helpful to your client and for your practice as you look at the labor and employment issues associated with COVID-19.

 

Greg, I believe that covers all the material I had for this concluding series of COVID-19 labor and employment issues. Again, I'll be happy to answer any questions or respond to any comments.

 

Greg Walsh:  We do have one caller on the line. We will now go to our first caller.

 

Area Code 443, you're on the air. Sorry, we seem to have a technical difficulty. Area Code 443, you're on the air.

 

G. Roger King:  Well, let me conclude while we're waiting to see that technical correction. I want to also mention the pendency of the OSHA case brought by the AFL-CIO in the D.C. Court of Appeals. The D.C. three-judge panel assigned to the case refused to grant the AFL-CIO's request for a writ of mandamus that would've required the Department of Labor to issue emergency temporary standards for infectious diseases.

 

The AFL-CIO then filed a request for an en banc, a full-circuit review of the case. To my knowledge, as of this morning, that en banc petition was still pending and not been ruled on. That's an important case in the OSHA area, and you should pay attention to that, particularly, obviously, if the D.C. circuit decides to reexamine the three-judge panel.

 

Greg Walsh:  We do have another caller.

 

Maria:  Hello? Good afternoon.

 

Greg Walsh:  Yes, you're on the air.

 

Maria:  Can you hear me?

 

G. Roger King:  Yes, we can now. Thank you.

 

Maria:  All right. Thank you. Hi, my name's Maria, and I'm from Puerto Rico; the chapter from Puerto Rico.

 

      I was seeing the checklist, Page 5, Number 5, where it says "Other Employer Issues to Consider," face masks and stuff. And then, I was reading where it says, "In general, an employer can refuse an employee's request for a medical mask or respirator- OSHA and CDC have both stated that respirators are not necessary in the workplace."

 

      So, my question is, here in Puerto Rico, we have the governor, and then she has this executive order where she obligates pretty much every single workplace that is outside of the health care setting to wear a mask.

 

It's not like a law or anything, but I was like seeing the checklist and I was like, "Okay, is this like higher than like an executive -- is this allows in an executive order or is…?" How does that come into -- I guess my question I'm trying to say is can that workplace out of the healthcare setting, even though there's an executive order, still not require wearing masks? That's pretty much my question.

 

G. Roger King:  All right. I understand the question. We have that tension going on throughout the country where we have challenges to gubernatorial or mayoral or local jurisdiction requirements. In most cases, under executive orders are under executive authority. Certain state legislative bodies have curtailed some of that executive authority. We have lawsuits pending. I saw a lawsuit just filed in Ohio, I believe this week, challenging the Ohio governor's requirement that bars close at 10:00 p.m. That's yet to be resolved.

 

      So there's some tension there. I don't have an exact answer to your question. The CDC authority is only guidance. It's not, as you know, a federal statutory law. We don't have any Congressional enactments regarding masking or testing, so virtually all of this is going to be decided at the local level absent some federal intervention.

 

      I'm not familiar with Puerto Rico laws, but I would think the same tension that you are talking about between the scope of authority of the executive to act under executive order and out of the state's constitution or other state statutes are going to come into play, and it's going to be an interesting jurisprudence discussion.

 

      But by and large, employers -- I would encourage employers in this area to show good common sense, as I mentioned earlier. I would encourage them to follow CDC guidance and OSHA guidance if for no other reason, for employee safety, but in the legal area, to provide a bedrock of protection as a defense for any litigation challenging what they have done or not done.

 

Greg Walsh:  We have one more caller. Caller, you're on the air.

 

Caller 2:  Yes, can you hear me now?

 

Greg Walsh:  Yes, sir.

 

G. Roger King:  Yes, you're very clear.

 

Caller 2:  Oh, thank you. Great. Thanks very much. I realize it's a little off topic from the majority you covered today. Perhaps it was in the prior slides. I'm looking for those on the FedSoc website right now.

 

But I was just curious about workers' comp applications. So many employees are no longer at their place of employment, and I've been involved in litigation in the past where the health insurers versus comp insurers play hot potato with a client based on where it occurred. I can imagine homeowners' insurance now getting thrown into that mix.

 

      I was just curious if there's anything developing, or what your predictions are in that whole space?

 

G. Roger King:  Excellent question. In our legal checklist, you'll see a short section on workers' comp. There have been activities in various states. I think Illinois was the first state where an interpretation from the authorities—they had administered the Illinois workers' comp program—concluded that workers that become COVID-19 infected and performed work in a workplace where there was exposure that there would be a presumption that workers' comp applied. It really turned around the whole presumption approach. Now, other states, particularly so-called "blue" political states, some have picked up on that approach.

 

      This is really a double-edged sword, and you're right; it's going to be a back-and-forth situation. Is this a positive development? Well, it could bankrupt certain workers' comp funds—some of my colleagues tell me that practice in this area—if we have thousands and thousands of workers' comp claims as a result of COVID-19 on behalf of employees or their estates.

 

      On the other hand, as you know, workers' comp coverage, by and large, provides immunity for the employer to shield for private rights of action. That's one of the things that's playing out in the litigation in this area. Certain plaintiffs' attorneys are still filing actions in this area of exposure in the workplace, arguing that the employer was so callous, disregarded to such an extent of gross negligence, safety standards from the CDC or other entities and, therefore, workers' comp does not apply.

 

      Your question about coverage at home. Employees are working, as you know, when they're at home, and I think that's an excellent question. What is the coverage? What do the policies that employers have in place cover for workplace injuries that take place in a telecommuting environment? That's something to be sorted out. And how will the workers' comp statutes also be applied in respective states?

 

      This area of COVID-19 and labor and employment is, perhaps, a lawyer's dream in some respects and an employer's and employee's nightmare. I hope that's not ultimately the case, but that's why these discussions in Congress on liability shields are so important.

 

      I hope that's at least a partial answer or discussion of your question.

 

Greg Walsh:  We have one more caller, Mr. King, if you still have time, but I do want to be cognizant of the [inaudible 01:02:22] hour.

 

G. Roger King:  Sure, certainly.

 

Greg Walsh:  Caller from Area Code 314, you're on the line.

 

Jerry Hunter:  Roger, this is Jerry Hunter in St. Louis. First of all, I want to congratulate you on an excellent presentation where you hit the gamut of all the pertinent statutes and tied them all together.

 

Secondly, with respect to your last caller, my recollection is, which may be pertinent to your last caller, is that Governor Gary Newsom in California issued an executive order some months ago where he basically took the position that, I believe, he took the position that any employee who contracts COVID-19 that there would be a presumption that it's work related under the workers' compsensation statute in California.

 

But my question goes to you and your presentation, particularly with respect to the National Labor Relations Act. You mentioned preemption, and I want to know if you are aware -- do you know if there have been any cases where the preemption issues of the machinist preemption or the other preemption doctrine have been raised in any pending litigation? Thank you for the excellent presentation. Thank you for that presentation, Roger.

 

G. Roger King:  Great question. Oh, you're welcome, Jerry. And for those of you that may not know who our last questioner was, Mr. Hunter is former general counsel of the National Labor Relations Board with the Bryan Cave firm based in—you're based in St. Louis, Jerry, I think, still?—and is an excellent practitioner. He's given a lot of strong guidance in this area. Good to hear your voice, Jerry.

 

      I am not aware of any preemption lawsuits at this point, but I think we may see them. And this tension, as we've been discussing, between the scope of authority of an executive, whether it be a governor or mayor, city council, what have you, and rights of employees and the federal labor law in this area. The National Labor Relations Act, obviously, has been upheld on numerous occasions, including the Supreme Court, to preempt numerous state laws, including some California statutes.

 

      So what I've come into play here. Workers' comp -- I'm not so confident of a preemption win there, but I do think a very strong preemption case can be made in certain other areas. Jerry, does that answer your question, or do you have a follow-up question?

 

Greg Walsh:  Jerry, if you want to join the caller queue again, feel free to press star and then pound. I believe I have the right number that I'm unmuting now if you want to respond.

 

Jerry Hunter:  Hello? Can you hear me, Roger?

 

G. Roger King:  Yes, yes.

 

Jerry Hunter:  Yes, Roger, you did answer my question with respect to preemption. And I would agree with you that workers' comp is more difficult to assert a preemption issue on workers' comp cases. I just thought it was pretty interesting that Governor Newsom took it upon himself to -- I don't know if any other executive has gone as far as he's gone by saying that it is a presumption that if an employee contracts COVID-19 that there is a presumption that it's work related. I thought that was pretty interesting.

 

And then, particularly in light of your conversation with the previous caller about work at home, and so work at home. And then, if you're in California, it's going to make it pretty tough for employers because then, in light of the governor's position, employers are going to have to come up with some kind of defenses to try to argue that the governor was out of bound in his executive order saying that there is a presumption that contraction of COVID-19, there is a presumption that it would be work related.

 

      But you did answer my question because I love the preemption area, and I think, as you just said, I think, ultimately, this issue is going to arise as to whether some of these regulations are preemptive.

 

G. Roger King:  I agree. I also agree with your comments and conclusions regarding Governor Newsom's unilateral decision. Was it well thought out? I think that's subject to question. What impact will it have on the California workers' comp system, financially and operationally? We know that it will be very difficult to prove causation in a nexus of where the COVID-19 infection occurred.

 

Even medical authorities are differing on exposure points, and for any executive, whether it be Governor Newsom or any other state, to simply make that presumption is a leap without medical or other factual support, at least from my perspective. But it shows how politics, I guess, are entering into this discussion.

 

      I'll close with this, Jerry, and others on the call. That's why, again, I think it is so important to see what the Senate does on liability shields and federal preemption of some of the lawsuits and litigation that we're seeing. The scope of that preemption, if it does occur, how it's applied will be very interesting and, perhaps, quite important.

 

Greg Walsh:  Oh behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.