Fourth Quarter 2020

 

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In This Issue:

Quick Hits

Voting Rights and Employer Responsibilities

Paycheck Protection Program ("PPP") Loan Forgiveness Update

Pregnancy Protection Act Under Consideration

Occupational Safety and Health Administration ("OSHA") Penalties

Legal Update

Second-Hand Viral Infection Lawsuit Exposure

Age & Disability Discrimination on the Rise

Regulatory Update

FFCRA Guidance

DOL Guidance

In the News

State/Local Developments

High-Profile COVID Concerns

Ensure Hand Sanitizer Safety

Links of Note

Cognitive Dissonance and Pandemic Behavior

The Times They Are a-Changin’

Strangest Thing We've Heard of Late

Seeing and Being Seen

Published or Quoted Elsewhere:

Timing Works Out Well for Goldstein

Wisconsin Law Journal

Concealed Carry Concerns

Ozaukee Press

Packing Heat: Local Businesses Torn on Concealed Carry Law

Fox Point Patch

Social Media and the Workplace

(SBDC Front Page)

Are Unpaid Internships Legal?

(Dime Crunch)

Loose Lips Sink Ships – Things That Can Get Educators in Legal Hot Water!

(Teachers.Net Gazette)

The Focus on Misclassification

(SBDC Front Page)

Hiring in the New Economy

(SBDC Front Page)

Understanding and Bridging
the Generational Gap>

(WORK Spring, 2009)

What is the Role of an
Attorney on the Board?

(Compasspoint Board Café - February 28, 2008)

Also published in Blueavocado.org - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

On the one hand, the "silly season" that always precedes Election Day is nearly concluded. On the other, so much anxiety and uncertainty—relative to the pandemic, politics, work, and school—that will not soon be resolved. We are eager to hear from you about what you are seeing and experiencing.

Quick Hits

Voting Rights and Employer Responsibilities

With the presidential election next week, a reminder that Wisconsin law entitles employees to be absent from work to vote (not to exceed three successive hours). Business owners may designate the time of day for the absence and need not pay the employee for the absence; however, employees must not be penalized for this absence beyond deducting for actual lost work time.

Paycheck Protection Program ("PPP") Loan Forgiveness Update

The U.S. Small Business Administration (“SBA”) began approving PPP loan forgiveness applications in October. On October 8, SBA released a simpler loan forgiveness application for businesses that received PPP loans of $50,000 or less, streamlining the process for many. However, questions remain and developments continue—prompting most businesses to wait a bit longer before filing for forgiveness. For instance, will states tax PPP loan forgiveness? How will SBA’s updated guidance, e.g., on rent or lease payments to “related parties,” affect your loan forgiveness? Stay tuned.

Pregnancy Protection Act Under Consideration

The U.S. House of Representatives passed the Pregnant Workers Fairness Act (H.R.2694) on September 17th. The Act would require employers of 15 or more to make reasonable accommodations for limitations related to pregnancy, childbirth, and related medical conditions save for "undue hardship." It is unclear whether the bill will pass in the Senate, but it bears noting that it did receive bipartisan support in the House.

Occupational Safety and Health Administration ("OSHA") Penalties

Through October 15, 2020, OSHA has fined 112 companies over $1.6 million for COVID-related violations, issuing citations to 27 establishments (including one in Green Bay) during the week of October 9th (with fines totaling $381,388). Per a recent news release, citations vary from recording and reporting failures to compliance issues. In the Green Bay case, for example, a failure to implement safety precautions led to 300 employees becoming ill.

Legal Update

Second-Hand Viral Infection Lawsuit Exposure

Past asbestos-related litigation popularized the term "take-home" lawsuits (e.g., employee inadvertently carried asbestos fibers home from work, causing health issues for family members). Several new COVID-related lawsuits are based on the same theory. In one such lawsuit, a man was infected with COVID at work and subsequently spread the virus to his wife (Esparanza Ugalde), and she died. Note that employees’ family members are not beholden to the same worker’s compensation liability caps as employees who contract an illness at work.

Business Takeaway: Potential exposure here is huge. For comparison, many asbestos cases have resulted in damages in the millions of dollars (including $27.3 million in a single California case). In two recent COVID cases, the respective business owners may have been negligent regarding COVID safety protocols, which would significantly increase their liability. To minimize your exposure, ensure that you are following federal, state, and local mandates, and that you are following up-to-date practices for employee safety. If you have questions or concerns about existing mandates, federal or state guidelines, or your existing workplace safety procedures, contact Mark at 414-446-8800 or mark@goldsteinsc.com.

Age & Disability Discrimination on the Rise

As has been suggested from the beginning, COVID-related risks are amplified for individuals over a certain age or with underlying health issues—and these risk factors/categories often overlap. Over the course of the pandemic, many businesses have been forced to reduce their workforce and cut other costs. This has disproportionally affected workers who fit one or both categories—based, in part, on demographics but also implicit biases. As a result, trends suggest an impending uptick in age- and disability-based discrimination litigation.

Business Takeaway: Businesses continue to struggle during the pandemic, and critical labor and employment questions remain unanswered. However, that is no defense against violations of existing protections. For businesses contemplating layoffs, engage legal counsel to discern and analyze any unfavorable trends (e.g., an overrepresentation of laid-off employees who are 40+). Contact Mark at 414-446-8800 or mark@goldsteinsc.com if you have questions about discriminatory layoff practices.

Regulatory Update

FFCRA Guidance

A reminder that the U.S. Department of Labor ("DOL") has in-depth Questions and Answers regarding the Families First Coronavirus Response Act ("FFCRA")—now revised in accordance with its Federal Register publication. We have seen an uptick in questions regarding:

  • EPSL/EFML childcare coverage, relative to schools being closed, hybrid, etc.; changes in schooling (schools re-opening and/or re-closing); and different forms of childcare;
  • Other reasons for leave, and whether it is paid vs. unpaid; and,
  • Exhaustion of FFCRA leave.

There also seems to be considerable confusion among business owners, their advisors, and their service providers (e.g., accountants, bankers, and payroll providers) concerning FFCRA, PPP, and other government grants, loans, programs, and assistance. For example, we have seen payroll providers mishandle EPSL/EFML, EIDL, and PPP calculations, to the detriment of business owners (and to the tune of tens of thousands of dollars). We have also seen incorrect or misleading guidance issued by the very agencies tasked with administering and enforcing these programs. While such confusion is perhaps unsurprising given the complexity and novelty of these programs, the risks are real and substantial.

Business Takeaway: For FFCRA leave issues, contact Adam at 414-446-8800 or adam@goldsteinsc.com with any questions or concerns. For your FFCRA eligibility determinations and your PPP/EIDL calculations, mistakes can result in a denial of tax credits or affect your PPP forgiveness calculations. Contact Corey at 414-446-8800 or corey@goldsteinsc.com for assistance with these calculations.

DOL Guidance

With so much COVID-related news, one might skip over other developments. For example, the DOL released several opinion letters relating to the Fair Labor Standards Act ("FLSA"). Of note was its opinion (reaffirming, in part, a recent final rule which also spoke to bonuses and other incentive-based pay) that employees’ hours need not fluctuate above and below 40 hours per week to qualify for the fluctuating workweek method of calculating compensation.

The DOL also released a proposed rule regarding independent contractors. Most of the factors are not new; however, the DOL notably lays out an economic reality test and two core factors: (1) "the nature and degree of the worker’s control over the work," and (2) "the worker’s opportunity for profit or loss."

Business Takeaway: These are areas that have historically stymied business owners (and may carry significant financial penalties for infractions). Accordingly, the clarification and reaffirmation (and in the case of the proposed rule, potential broadening of the independent contractor definition) are welcome developments. Note, however, that the proposed rule is merely proposed at this point. Contact Corey at 414-446-8800 or corey@goldsteinsc.com for independent contractor analysis or information on employee compensation methods.

In the News

State/Local Developments

Despite Wisconsin’s worsening COVID numbers (e.g., total positive cases, deaths) and signs of support in Milwaukee for certain protective measures, there remains considerable resistance by business owners and others to mask mandates and other emergency rules. For example, 50+ Milwaukee-area businesses have received warnings and a Middleton coffee shop lost its lease, all related to defiance of such rules. Milwaukee has since eliminated warnings and increased fines for COVID-related violations, as seen with a recent fine levied against Trinity Three Irish Pubs, and has issued a new order reducing gathering limits to 10 people indoors and 25 outdoors.

Meanwhile, the state emergency order capping bars and restaurants at 25% capacity is currently stayed while the case is pending before the Court of Appeals, while a new lawsuit has been filed to overturn the statewide mask mandate.

And then there are the very real challenges businesses are facing themselves, relative to mask-wearing and other safety protocols (and those who refuse). This has required a whole new sort of employee training, involving education on state and local mandates, new company policies, and how to diffuse tension involving customers and/or fellow employees.

Business Takeaway: The legal battle regarding pandemic-related mandates continues. However, it may not be wise to await the results. Regardless of where you might stand on these issues, not only are the penalties increasing in severity and frequency, so is other exposure [see Second Hand Infection Lawsuit Exposure above]. Contact Adam at 414-446-8800 or adam@goldsteinsc.com if you have questions about the mask mandate and/or potential penalties for businesses (or wish to have someone to blame, i.e., corporate counsel, should your employees or customers complain).

High-Profile COVID Concerns

Amazon has been sued in a New Jersey federal court by a former employee responsible for COVID-related safety protocols. The employee, David Bailey, claims his termination came after he observed and reported a shift manager who failed to maintain a six-foot distance from other workers (in violation of company protocols and state mandate) and who had been the subject of several other prior complaints from fellow employees.

Several employees of Disneyland (in Anaheim, California) have accused it of failing to enact appropriate and/or timely COVID protocols. The allegations include shortcomings related to testing and identifying positive cases, as well as the timeliness of communications—all which risked, or perhaps even caused, greater spread. If true, this appears to stand in stark contrast to Disney World (in Orlando, Florida), where the NBA season was successfully completed.

Business Takeaway: Businesses are risking big payouts, especially if employees can show a violation of state or local mandates, federal or state guidelines, and/or company safety protocols. If you have questions or concerns about existing mandates, federal or state guidelines, or your existing workplace safety procedures, contact Mark at 414-446-8800 or mark@goldsteinsc.com.

Ensure Hand Sanitizer Safety

With increased use of hand sanitizer (and the rush to meet consumer demand) comes an influx of hand sanitizer-linked poison cases. While hand sanitizer typically contains ethanol, some sanitizers have tested positive for methanol (wood alcohol). Wood alcohol is toxic if ingested or absorbed, and there have been several reported deaths and cases of blindness. The FDA has compiled a list of recalled hand sanitizers.

Business Takeaway: While handwashing is still preferred to hand sanitizing, it is still recommended that businesses make hand sanitizer available to employees and guests. Check your hand sanitizer to be sure it is safe (and not recalled).

Links of Note

Cognitive Dissonance and Pandemic Behavior

Leon Festinger coined the term "cognitive dissonance" to describe the experience of encountering ideas and/or behaviors within ourselves that contradict one another, and how our brains attempt to make sense of it all. Social psychologists Elliot Aronson and Carol Tavris recently offered their thoughts on cognitive dissonance during a pandemic. Have you considered why you believe what you believe, or why you have taken or not taken certain actions (e.g., wearing a mask, accepting, or balking at a social invitation)?

The Times They Are a-Changin’

Depending on who you ask, we have either reached the end of the physical workplace or happened on a way forward that provides a more flexible work-life balance. The one question that continues to pop up in such conversations is how one measures the engagement and productivity of remote workers. How do you answer this question?

For some occupations, remote work is not an option. At the 2020 BizTimes Next Generation Manufacturing Summit, manufacturing executives were asked to identify changes they have instituted since COVID took hold in March that they expect to continue post-COVID. Their answers included staggered breaks, changes to plant layout, and increasing the speed with which they are able to pivot. What changes do you think are here to stay?

Strangest Thing We've Heard of Late

With all the strange news as of late, it is impossible to pick the strangest. Accordingly, we offer two on a theme:

Seeing and Being Seen

The Ohio Supreme Court recently ruled that employees giving urine samples under "direct observation" do not have a cause of action to sue their employer for breach of privacy. On the one hand, business owners know all too well the ways in which urine tests can be gamed (and the employees did sign releases). On the other, perhaps not the best way to begin an employment relationship (and a classic blunder of managing based on past, worst-case scenarios).

And, on the topic of "direct observation," who would have guessed Jeffrey Toobin would do what he allegedly did on Zoom? Leave it to McSweeney’s to turn the incident into a teachable moment.