Management Update

The CDC Says that Fully Vaccinated Workers Do Not Need to Wear Masks - Sort Of

By: Jerry L. Stovall, Jr.

In an effort to motivate more Americans to take one of the COVID-19 vaccines, the CDC issued new Guidance yesterday that slightly loosens the restrictions on those of us who have been fully vaccinated.

If you have been fully vaccinated (meaning that you have received both shots, if applicable), the CDC now says that:

You can gather indoors with fully vaccinated people without wearing a mask.
You can gather indoors with unvaccinated people from one other household (for example, visiting with relatives who all live together) without masks unless any of those people or anyone they live with has an increased risk for severe illness from COVID-19.
If you have been around someone who has COVID-19, you do not need to stay away from others or get tested unless you have symptoms.

So, if everyone working on your floor or in your group has been fully vaccinated, you can gather together without wearing masks. However, even if you have been fully vaccinated, you should still:

Take steps to protect yourself and others in many situations, like wearing a mask, staying at least 6 feet apart from others, and avoiding crowds and poorly ventilated spaces. Take these precautions whenever you are:
In public;
Gathering with unvaccinated people from more than one other household; or
Visiting with an unvaccinated person who is at increased risk of severe illness or death from COVID-19 or who lives with a person at increased risk.
Avoid medium or large-sized gatherings.
Delay domestic and international travel. If you do travel, you will still need to follow CDC requirements and recommendations.
Watch out for symptoms of COVID-19. If you have symptoms of COVID-19, you should get tested and stay home and away from others.
Follow guidance at your workplace.

You can find the Guidance here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html This is clearly still a moving target, so keep an eye out for further CDC Guidance.

Keep an Eye on These Bills If You Use or Are Considering Using a Mandatory Arbitration Provision

By: Jerry L. Stovall, Jr.

As you know, several pieces of federal legislation aimed at limiting or eliminating altogether mandatory arbitration in the employment setting have been proposed, and failed in the past several years. In fact, several states: California, New Jersey, and New York, have all passed state laws prohibiting mandatory arbitration of employment disputes. The Biden administration is going to make another run at passing this legislation at the federal level, and employers should stay abreast of the progress of these Bills.

Two of the more comprehensive and high-profile Bills filed to date are the FAIR Act and the PRO Act.

Forced Arbitration Injustice Repeal (FAIR) Act (H.R. 963).

The FAIR Act was reintroduced in February of this year. In 2019 the Bill passed the Congress but failed to clear the Senate. The current FAIR Act has 155 cosponsors in the House. If it passes, the FAIR Act will preclude mandatory arbitration agreements for disputes involving, among other things, civil rights and employment. It will also prohibit all class and collective action waivers. You may recall that I have suggested in past updates that class and collection action waivers were two of the most beneficial aspects of mandatory employment arbitration agreements.

Protecting the Right to Organize Act (PRO Act) (H.R. 842).

The PRO Act was also introduced in Congress in February of this year. The PRO Act is even more pro-union and pro-employee than the FAIR Act. For example, the PRO Act would legislatively overturn the Supreme Court's decision in Epic Systems and would make it an unfair labor practice for any employer to use class action waivers.

The PRO Act is expected to be opposed by virtually all Republicans; accordingly, its passage hinges on certain Democratic senators and whether the Senate retains the filibuster. In contrast, the FAIR Act is likely to receive some bipartisan support. Not only did the prior version of the FAIR Act receive some bipartisan support in the House, but some Republican senators may also support the bill-or at least a watered-down version of it. For example, Senator Lindsay Graham (R-SC) has supported limiting mandatory arbitration agreements under the right circumstances. As drafted, the FAIR Act is unlikely to garner sufficient votes in the Senate to overcome a filibuster, but a compromise bill might.

Takeaways

Ongoing state and federal activity demonstrates a concerted effort to limit the use of arbitration agreements and class waivers in the employment context. Unlike in recent years, the composition of Congress is more likely to allow for the passage of such Bills. As such, employers with arbitration programs, and those contemplating implementing such programs, should continue to monitor events in Washington.

Please, Please, Please Use Common Sense When Responding to an Employee's Request for a Reasonable Accommodation

By Jerry L. Stovall, Jr.

This case is a good example of just how expensive it can be when we don’t. The Plaintiff in this case, Mr. Burnette, worked in a call center for Ocean Properties. The call center was located in the clubhouse of a golf club. (Sounds a little sketchy right off the bat.) The public entrance to the clubhouse, which Mr. Burnett had to use, had two heavy, wooden doors that pulled outward and then automatically closed. The area leading to the doors had a slight, downward slope away from the doors. Mr. Burnette was a paraplegic who used a wheelchair, and he had a very difficult time opening the doors by himself without rolling down the slope. In fact, after complaining several times and asking Ocean Properties to install push-button automatic doors, Mr. Burnette injured his wrist while trying to get through the doors by himself.

Rather than install the automatic doors, which would have cost around two thousand dollars, Ocean Properties merely confirmed that the doors were ADA-compliant when the clubhouse was built. However, at no time did Ocean Properties respond to any of Mr. Burnette's requests for an accommodation or do anything to determine how it could help him more easily access the building. (At trial, Mr. Burnette testified that he was "tired, frustrated, [and] angry" that he never heard a response to his request and that he believed the defendants did not wish to accommodate him.)

Understandably, Mr. Burnette sued his employer on the grounds that Ocean Properties had unreasonably failed to accommodate his open and apparent disability. At trial Ocean Properties argued that since Mr. Burnette was excelling at his job despite his difficulties in entering the premises, he did not actually need a reasonable accommodation. Alternately, Ocean Properties argued that his request for automatic doors was not reasonable in any case.

The jury and Court of Appeals disagreed with both of Ocean Properties’ contentions "The fact that Burnett was able to enter the clubhouse (at the risk of bodily injury) despite this difficulty and to perform the duties of an associate once inside does not necessarily mean he did not require an accommodation or that his requested accommodation was unreasonable, as Appellants claim." and held that Ocean Properties had indeed failed to reasonably accommodate Mr. Burnette. The jury awarded Mr. Burnette $150,000 in compensatory damages.

The jury also awarded Mr. Burnette $500,000 in punitive damages. The Court of Appeals affirmed the award of punitive damages, focusing on the fact that not only did Ocean Properties refuse to reasonably accommodate Mr. Burnette, but it also failed to respond to any of his numerous pleas for help. Had Ocean Properties simply exercised common sense and engaged in a dialogue with Mr. Burnette, it may well have avoided this punitive damage award even if it lost the underlying failure to accommodate the claim.

In addition to compensatory and punitive damages, Ocean Properties was ordered to pay Mr. Burnette’s legal fees. When you include its own legal fees with the damages and legal fees awarded to Mr. Burnette, Ocean Properties easily spent well over one million dollars on this case, as opposed to the two thousand dollars that the automatic doors would have cost. (Actually, Ocean Properties could have installed approximately 500 sets of automatic doors for what this case cost it in monetary losses alone.)

Ocean Properties clearly made mistakes at several junctures: it failed to follow up with an employees' repeated requests for an accommodation; it failed to make what would appear to be a very reasonable accommodation; and it failed to exercise even a modicum of common sense in its dealings with Mr. Burnette. When addressing an employee’s request for an accommodation, it is critical that we use our common sense, step back, and see the situation as an objective third-party would see it. Even if we don’t prevail on the underlying claim, we may still avoid a very expensive punitive damage judgment.

Be Very Careful If You Discuss Wages and High-Level Hiring With Competitors, or You Might End Up in Jail

By: Jerry L. Stovall, Jr.

In 2016 the U.S. Department of Justice and the U.S. Federal Trade Commission released with little fanfare the Antitrust Guidance for Human Resource Professionals (Antitrust Guidance). Generally, the Guidance warned human resource professionals that agreements between competitors to set wages or to refrain from soliciting each other's employees ("no-poach agreements") could result in criminal prosecution under U.S. antitrust laws. Although the DOJ has pursued a number of civil cases since then, it did not obtain its first criminal indictment until December of 2020.

Wage Setting: In United States v. Neeraj Jindal, (E.D. Tex. Dec. 09, 2020) the U.S charged Neeraj Jindal, the former owner of a physical therapist staffing company, with violating the Sherman Act by conspiring with a competing physical therapist staffing company to fix wages for physical therapists and physical therapist assistants in the Dallas-Fort Worth metropolitan area. The DOJ specifically alleged that over a six-month period from March to August 2017, Jindal exchanged nonpublic information with his co-conspirators about the rates paid to physical therapists. The DOJ claimed that Jindal and his co-conspirators communicated about rate decreases, discussed and agreed to decrease rates paid to physical therapists, implemented rate decreases in accordance with the agreement reached, and paid physical therapists at collusive and noncompetitive rates. The DOJ produced numerous text messages between Jindal and his co-conspirators concerning the alleged conspiracy. (As I have said before if you don’t want it read or seen in court, then don’t take a picture of it, text it or send it in an email.)

Non-Solicitation Agreements: In January of this year, the DOJ filed criminal indictment against Surgical Care Affiliates, LLC alleging that SCA, which owns and operates outpatient medical care centers across the country, entered into two separate bilateral conspiracies with other health care companies not to solicit senior-level employees, thereby suppressing competition for the services of those employees.

The DOJ alleges that beginning as early as May 2010 SCA and another company conspired to suppress competition between them by agreeing not to solicit each other's senior-level employees. The DOJ also alleged that SCA conspired with another company to allocate senior-level employees through a similar non-solicitation agreement. The DOJ claimed that SCA enforced its no-poach agreements by instructing recruiters not to recruit senior-level employees from the other two companies, by requiring senior-level employee applicants to notify their bosses when they were seeking other employment, by monitoring compliance with the no-poach agreements, and by refraining from soliciting each other's senior-level employees. The DOJ has again provided emails between SCA and the other two companies admitting the existence of the agreements.

Take away: Employers, Executives, and HR professionals, should be very careful when they communicate with their competitors regarding non-public information regarding wages and any sort of agreements not to attempt to hire away each other's employees. While prosecution is far from common, we can count on the new administration to be much more aggressive in seeking criminal indictments for these types of activities.