June 2020 – Vol. 22, No. 6
Co-Editors, Scott A. Witty, firstname.lastname@example.org and Richard R. Burns, email@example.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- GOVERNOR WALZ ISSUES COVID-19 ANTI-RETALIATION EMERGENCY ORDER
- PAYCHECK PROTECTION ACT LOAN FORGIVENESS REVISIONS
- NLRB RULES EMPLOYERS CAN RESTRICT UNION SOLICITATION EFFORTS DURING WORK TIME
- Labor Relations Under a Democratic Administration
- Tip Of The Month
On May 13, 2020, Governor Walz issued an Emergency Order stating that employers must not discriminate or retaliate against employees who communicate with management personnel regarding occupational safety or health matters related to COVID-19, including asking questions or expressing concerns, refusing to work based on a reasonable belief that they have been assigned to work in an unsafe or unhealthful manner with the potential of exposure to COVID-19, and filing a report with the Minnesota Department of Labor and Industry regarding a potentially hazardous work condition involving COVID-19. With this in mind, employers taking adverse action against an employee refusing to work due to COVID-19 concerns may face liability on a claim of retaliation, which brings the possibility for an award of back pay, front pay and attorney’s fees.
Additionally, the Executive Order states that employers must not discriminate or retaliate against any worker for wearing personally procured personal protective equipment (“PPE”), including gloves, a cloth face covering, eye protection, or other protective gear which the worker reasonably believes will protect them, their coworkers or the public against COVID-19 in the course of their work. The employee’s PPE must not violate industry standards or existing employer policies related to health, safety or decency. Employers should proceed with caution before prohibiting employees from wearing PPE, even if the employee’s PPE is contradictory to the employer’s dress code. Employers may, however, require the use of employer-provided PPE that meets or exceeds the employee’s personally procured PPE.
Congress recently enacted revisions to the PPP Loan program which are briefly summarized here.
Current Borrowers are now allowed to elect to choose to spend their PPP funds over 24 weeks rather than 8 weeks. New Borrowers will not have the ability to elect and will have 24 weeks to spend proceeds. The loan repayment time period for new Borrowers has been extended to 5 rather than 2 years. For current Borrowers there is language that encourages loan documents to be revised to state 5 years, but this is not required. The legislation also now only requires that 60% of any forgiveness amount be spent on payroll expenses rather than 75%. Finally, the legislation changes the safe harbor date to rehire employees in order to avoid a penalty in the amount of the loan that can be forgiven to December 31 rather than June 30. Each of these changes relax requirements on PPP Loan recipients and were intended to ease the economic harm to small businesses caused by the COVID ‑19 pandemic.
NLRB RULES EMPLOYERS CAN RESTRICT UNION SOLICITATION EFFORTS DURING WORK TIME
On May 29, 2020, the National Labor Relations Board (“NLRB”) handed down a major precedent ‑ shifting ruling concerning employers’ right to prohibit employees from “soliciting” other employees to support a union. See Wynn Las Vegas, LLC and Keli P. May and Kanie Kastroll,Case Nos. 28–CA–155984; 28–CA–157203 (2020). The matter before the NLRB concerned an employee of the Wynn Las Vegas (the “Wynn”), a casino on the Strip, who chatted with another employee while on the clock about the merits of supporting an ongoing unionization effort. The Wynn wrote up the employee for violating its solicitation policy, which prohibited employees from undertaking union solicitation efforts during work time. Under prior NLRB precedent, enforcement of the policy against the employee in question would not be appropriate because the definition of “solicitation” required that the unionization discussions be accompanied by the presentation of a union authorization card. In the Wynn case, the NLRB determined the prior interpretation of “solicitation” was too restrictive. Therefore, the NLRB ruled that employers have relatively broad authority to create and enforce policies, like the Wynn’s, which prohibit employees from soliciting other employees to support unionization efforts during work time (assuming that the policy is not discriminatory in its enforcement).
Last month on a voice vote, the House of Representatives passed the Protecting the Right to Organize Act (PRO). This was after Democratic members were told that Labor support in the 2020 election would be lacking if the legislation did not pass. This is the most pro-Union bill since the National Labor Relations Act was passed in 1935. Among its provisions are the following:
- Implements civil penalties for terminating employees who are attempting to organize in addition to back pay and requiring the NLRB to seek injunctions to reinstate employees.
- Streamlines election process with restrictions on employer rights. Employers cannot require employees to attend meetings to educate and persuade employees not to vote for a Union and also reinstates rules requiring the disclosure of the names and payments to third parties engaged by an employer to fight Union organization campaigns.
- Requires mediation and ultimately arbitration to enable employers and Unions to come to a first contract.
- Guts Right to Work laws by requiring in most instances that all employees pay “fair share” toward the cost of bargaining and administering a contract.
- In case of a strike, prohibits employers from permanently replacing strikers and allows secondary boycotts of other organizations that might persuade an employer to come to a contract settlement.
With the Senate controlled by a Republican majority and a Republican President in the White House, this bill will not become law, but it does signal legislative priorities of House Democrats.
TIP OF THE MONTH:
It is expected that telecommuting will continue in many situations, while others return to the office. For future use, in analyzing a “reasonable accommodation” under disability laws, one should document in particular situations why it works and why it doesn’t work. In the future, when a request for an accommodation is made, we will have data to determine whether in the short or long-term it is appropriate to determine what is a “reasonable accommodation.”
SAVE THE DATE!!!
27th ANNUAL EMPLOYMENT AND LABOR LAW SEMINAR
Wednesday, March 3, 2021
Holiday Inn – Downtown, Duluth
Thank you to the 100+ of you who were able to attend this year’s seminar on March 4th. We hope you found it interesting and informative. We sincerely appreciate all the valuable feedback from the post-seminar surveys.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2020 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.