On March 27 and 28, the U.S. Department of Labor (DOL) released additional question-and-answer style guidance on the emergency paid sick and family leave provisions of the Families First Coronavirus Response Act (FFCRA), which we first reported here. We look below at seven key issues addressed in the DOL’s updated guidance.

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On Wednesday, New York Governor Andrew Cuomo signed A10153, a bill designed to provide paid sick leave and wage replacement for workers who are affected by the coronavirus pandemic. While the bill provides public assistance for employees affected by the pandemic, it requires certain employers to provide additional paid sick leave to employees impacted by COVID-19. The new law’s provisions took effect immediately once Governor Cuomo signed it on Wednesday.

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Yesterday, the National Labor Relations Board (NLRB or Board) issued its much anticipated final rule on the joint-employer standard under the National Labor Relations Act (NLRA). Resolving a dispute at the agency that persisted for over four years, the final rule is welcome news for many employers – particularly franchisors and businesses that regularly engage supplemental or contingent workers from third-party agencies – who are less likely to be considered joint employers under the final rule.
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The new decade brings Schiff Hardin’s Labor & Employment Group’s annual legislative update, summarizing new legislation in 2020 under federal law and in Illinois, California, New York, Michigan, and the District of Columbia.

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On September 11, 2019, the California Senate passed Assembly Bill 5 (A.B. 5), which – if signed into law – will codify the so-called “ABC Test” utilized by the California Supreme Court in Dynamex v. Superior Court of Los Angeles to hold that the company’s delivery drivers were employees, not independent contractors, for the purpose of applying California Department of Industrial Relations Wage Orders. The bill, which California Governor Gavin Newsom is expected to sign, will have major implications on so-called “gig economy” workers, potentially leading to many being reclassified as employees rather than independent contractors.
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On July 24, 2019, the Chicago City Council voted to pass the Fair Workweek Ordinance that will require covered employers to, among other things, provide employees with at least 10 days’ advance notice of their work schedules and provide additional compensation to employees for any unscheduled changes to their scheduled work hours. Mayor Lori Lightfoot publically supported and is expected to sign the ordinance, which will go into effect on July 1, 2020.
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The U.S. Equal Employment Opportunity Commission (EEOC) has updated last week’s statement, described here, to confirm that in addition to 2018 “Component 2” pay data, it will now also be seeking data for calendar year 2017 by the September 30 deadline.

While EEO-1 compliance for 2019 appears to be a moving target, employers should plan to heed the EEOC’s statement and prepare to comply with the September 30 deadline for Component 2 data for both 2017 and 2018.
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The U.S. Equal Employment Opportunity Commission (EEOC) has issued a statement notifying covered entities to prepare to submit EEO-1 “Component 2” pay data for calendar year 2018 by the end of September. According to the Notice of Immediate Reinstatement of Revised EEO-1: Pay Data Collection, the EEOC expects to start collecting this data in mid-July, and in the meantime, filers must still submit their EEO-1 “Component 1” data for calendar year 2018 by the extended May 31, 2019 deadline. In light of these developments, covered employers should, at a minimum, prepare to file 2018 Component 2 pay and hours data by September 30, in addition to filing Component 1 data by May 31.
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Rather than wait for another case to come before it to address the requirements for joint employer status, the majority of the National Labor Relations Board (NLRB) members have opted to take the little-used rulemaking route. The proposed rule, which was released on September 14, 2018, would amend 29 CFR part 103 to add §103.40, defining joint employers. The proposed definition is only two sentences long:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.


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The Office of Federal Contract Compliance Programs (OFCCP) released three new directives late last week, which provide insight into its approach with respect to two key facets of contractor compliance under new Acting Director Craig Leen: compensation analysis and affirmative action programs (AAPs). “Directives” do not create or change laws, but provide guidance on the agency’s enforcement and compliance policies.

Federal contractors or subcontractors subject to affirmative action requirements under Executive Order 11246, Section 503 of the Rehabilitation Act, or the Vietnam Era Veterans’ Readjustment Assistance Act should pay attention to these developments.
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