BSCR Firm News/Blogs Feed Jul 2022 00:00:00 -0800firmwise You Want to Arbitrate, You Had Better Act Like It Jun 2022Employment & Labor Law Blog<p>The U.S. Supreme Court has regularly stated that arbitration agreements subject to the Federal Arbitration Act should not have special rules above and beyond those for ordinary contracts. The Supreme Court recently reaffirmed that this principle applies to contract defenses, including waiver. In <a href=""><i>Morgan v. Sundance, Inc.</i></a>, a unanimous Court held that a party opposing a motion to compel arbitration based on the defense of waiver need not demonstrate that it was prejudiced. The only relevant consideration is whether the actions of the party seeking arbitration demonstrated a knowing waiver of the right to arbitrate.</p> <p>In <i>Morgan</i>, the Plaintiff filed suit in September 2018 against a Taco Bell franchisee alleging violations of the Fair Labor Standards Act on behalf of herself and a putative class of employees. In May 2019, Sundance filed a Motion to Compel Individual Arbitration and Dismiss Plaintiff&rsquo;s Complaint, which the District Court denied.</p> <p>The District Court described the procedural history of the case as background for its denial of Morgan&rsquo;s Motion to Dismiss. After being served with the Complaint, Sundance requested and received an extension of time to answer, based on purportedly needing additional time to investigate. In November 2018, Sundance moved to dismiss &ldquo;in the interests of comity and judicial economy&rdquo; based on a similar lawsuit pending in Michigan. The Court denied the Motion to Dismiss in March 2019. The parties also participated in a class-wide private mediation in April 2019, during which the parties engaged in fairly extensive &ldquo;informal discovery.&rdquo; Sundance also engaged in discussions with Morgan regarding a litigation plan and scheduling order in advance of the scheduling conference. The parties had not engaged in any &ldquo;formal discovery,&rdquo; such as written interrogatories or requests for production of documents. According to the District Court&rsquo;s description of the facts, Sundance never mentioned, either to counsel for Morgan or in any Court document, the existence or possible applicability of an arbitration agreement before filing its Motion to Compel Arbitration.</p> <p>In denying the Motion to Compel Arbitration, the District Court applied the existing Eighth Circuit rule from <i>Lewallen v. Green Tree Servicing, LLC</i>, that a party waives its right to arbitration if it: 1) knew of an existing right to arbitration; 2) acted inconsistently with that right; and 3) prejudiced the other party by the inconsistent acts. The District Court found that eight months of motion practice, participation in mediation and informal discovery, and the failure to mention arbitration all indicated Sundance&rsquo;s waiver, and that Morgan was prejudiced as a result. The Eighth Circuit reversed the District Court, with the majority applying the <i>Lewallen</i> rule to find that Sundance did not waive its right to arbitrate. The Court of Appeals found that Sundance had not participated substantively in the &ldquo;litigation machinery,&rdquo; noting that most of the motion practice related to dismissal based on the Michigan case.</p> <p>Interestingly, the Court of Appeals majority stated that early mediation is not part of the &ldquo;litigation machinery,&rdquo; but is rather a means of <i>avoiding </i>protracted litigation. The Court of Appeals did not address how participating in <i>class-wide</i> mediation where a party is asserting <i>individual </i>arbitration affected the waiver analysis. In dissent, Judge Colloton pointed out that Sundance&rsquo;s Answer addressed the merits of the Complaint and included fourteen affirmative defenses &ndash; but did not include arbitration.</p> <p>The Eighth Circuit was one of a handful of circuits to impose a &ldquo;prejudice&rdquo; requirement in order to find that a party had waived its right to arbitrate. The Supreme Court granted certiorari to resolve the circuit split.</p> <p>The Supreme Court held that the Eighth Circuit&rsquo;s rule violated Section 2 of the Federal Arbitration Act. For a unanimous Supreme Court, Justice Kagan wrote that despite the oft-cited maxim that the FAA has a &ldquo;policy favoring arbitration,&rdquo; federal courts are not empowered to craft arbitration-specific rules. Arbitration contracts must be enforced to same the extent as other contracts, and no more.</p> <p>The Court noted that waiver is the intentional relinquishment or abandonment of a known right. The test of waiver asks only whether a party knew of an existing right and acted inconsistently with that right. Waiver does not depend on prejudice to another party, so the Eighth Circuit <i>Lewallen </i>rule improperly added an additional requirement for arbitration contracts. Going forward, District Courts everywhere may only ask whether a party seeking arbitration &ldquo;knowingly relinquish[ed] the right by acting inconsistently with that right.&rdquo;</p> <p><b><u>Takeaways</u></b></p> <ul> <li>The Supreme Court&rsquo;s decision adds a measure of predictability in determining whether a party has waived its right to compel arbitration. However, the decision will likely make it easier for plaintiffs to stay in federal court. Therefore, it is important for parties who may want to proceed to arbitration to determine at as early a date as practical whether to file a motion to compel arbitration.</li> <li>The Eighth Circuit suggested that participating in mediation is not engaging the &ldquo;litigation machinery.&rdquo; As many District Courts have mandatory early mediation, this would seem to permit a party (in some cases) to seek arbitration after an unsuccessful mediation. Depending on the facts and circumstances, this may be a risky maneuver.</li> <li>In analyzing prejudice, courts have expressed concern that because the scope of discovery in federal court is generally broader than in arbitration, a party could be prejudiced by being compelled to arbitrate after formal discovery. Although the prejudice element has now been eliminated, it is likely that courts will simply consider any formal discovery to be inconsistent with the right to arbitrate. Courts will likely take a very dim view of parties who seek arbitration after much more discovery than the exchange of Rule 26 initial disclosures.</li> <li>As the prejudice requirement has been eliminated, a party may consider asserting arbitration as a defense in its initial pleading. This may clarify that a party does <i>not </i>intend to waive its right to arbitrate as it determines whether an arbitration agreement may apply. As always, even if a party seeks to compel arbitration, the party is not relieved of its duties under Rule 12 to file a <a href="">responsive pleading.</a></li> <li>In employment cases, in particular, the early case investigation <i>must</i> include a review of the applicable employment agreements, handbooks, and arbitration programs. The savings in time and money that arbitration offers are undermined the longer a party litigates in federal court. If an arbitration agreement applies, it should not come as a surprise to counsel late in the case, and there is no good reason to delay in filing a motion to compel.</li> </ul> issues new guidance on employer use of AI, and compliance with the Americans with Disabilities Act. Jun 2022Employment & Labor Law Blog<p>On May 12, 2022, the Equal Employment Opportunity Commission issued a new comprehensive <a href="">&ldquo;technical assessment&rdquo; document</a> to aid employers with navigating existing ADA requirements when using software, algorithms, and artificial intelligence (collectively, &ldquo;AI&rdquo;) in employment-related decision making.</p> <p>This is part of the Justice Department and the EEOC&rsquo;s joint initiative to combat discrimination against people with disabilities. EEOC Chair Charlotte Burrows, citing data from the U.S. Bureau of Labor Statistics, stated <a href="">&ldquo;...over 80 percent of employers use AI in some form in their broader work and their employment decision-making...&rdquo;</a></p> <p>The new guidance highlights potential issues and scenarios that could lead to discrimination claims based on AI use and recommends best practices. Employers may be familiar with some recommendations, as its best practices are already reflected in some state laws, including the <a href=";ChapterID=68">2020 Illinois Artificial Intelligence Video Interview Act</a>.</p> <p>The EEOC identified three common ways discrimination can occur with AI:</p> <ol> <li>An employer does not provide a &ldquo;reasonable accommodation&rdquo; that is necessary for a job applicant to be rated fairly and accurately by the algorithm;</li> <li>An employer intentionally, <i>or unintentionally</i>, &ldquo;screens out&rdquo; an individual with a disability;</li> <li>An employer adopts an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA&rsquo;s restrictions on disability-related inquires and medical examinations.</li> </ol> <p>In many cases an employer can still be responsible under the ADA even if the tools are designed or administered by a third-party vendor.<b><br /> </b></p> <p><b>A. Reasonable Accommodations</b></p> <p>EEOC recommends proactively telling job seekers that the evaluation process uses AI and whether a candidate will need a reasonable accommodation to complete it. If an applicant were to tell a vendor that a medical condition was making it difficult to take the test, an employer would likely be responsible even if it was unaware the applicant reported a problem to the vendor.</p> <p>Employers must promptly respond to requests for reasonable accommodations. Once it is shown a disability might make a test more difficult to take, or reduce the accuracy of an assessment, an employer must provide an alternative testing format, or more accurate assessment, unless doing so would involve an &ldquo;undue hardship.&rdquo;</p> <p><b>B. Screen Outs</b></p> <p>Screen out occurs when a disability prevents a job applicant or employee from meeting &ndash; or lowering their performance &ndash; on selection criterion. The applicant or employee then loses a job opportunity as a result. A screen out becomes unlawful when the individual who is screened out is <i>able to perform the essential functions of the job</i> with a reasonable accommodation.</p> <p>Does an employer use a chatbot that screens out applicants with a significant gap in employment history? Was the gap caused by a disability? A visual memory assessment could screen out blind candidates able to perform the essential functions of a job that requires a good memory.</p> <p>Employers can run into problems when they use AI to hire employees who are most similar to their successful employees based on data. For example, AI may discover a candidate&rsquo;s ability to handle distraction, measured by a test, could be correlated with a successful employee. However, a candidate with PTSD may score poorly on this test. Simple noise-cancelling headphones or a quiet work station could serve as a reasonable accommodation to avoid a screen out of this candidate.&nbsp;</p> <p><b>C. ADA&rsquo;s Restrictions on Disability-Related Inquires and Medical Examinations</b></p> <p>An employer might violate the ADA if it uses AI that poses &ldquo;disability-related inquires&rdquo; or seeks information that qualifies as a &ldquo;medical examination&rdquo; before giving a candidate offer of employment. Assessments seek &ldquo;disability-related inquiries&rdquo; if questions are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with a disability. An assessment is a &ldquo;medical examination&rdquo; if it seeks information about an individual&rsquo;s physical or mental impairments or health.&nbsp;</p> <p>An algorithmic decision-making tool that could be used to identify an applicant&rsquo;s medical conditions would violate these restrictions if it were administered prior to a conditional offer of employment. Once employment has begun, disability-related inquires may be made and medical examinations may be required only if they are legally justified under the ADA.</p> <p><b>D. Best Practices and Third Parties</b></p> <p>Vendors advertising their algorithmic decision-making are &ldquo;bias-free&rdquo; typically means the programmer has taken steps to prevent discrimination under Title VII, which is discrimination based on race, sex, national origin, color or religion. This does not mean the vendor has taken steps needed to address the problem of disability bias.</p> <p>Ask questions! Employers can ask the vendors whether the AI was developed with individuals with disabilities in mind.&nbsp;Was the interface designed to be accessible to as many individuals as possible? Can the materials be presented in alternative formats? What steps did the vendor take to determine whether the algorithm disadvantages individuals with disabilities?</p> <p>Employers should consider entering into agreements with vendors that require them to provide reasonable accommodations on the employer&rsquo;s behalf.</p> <p>No matter who develops the AI, important steps to reduce the chance a tool will screen out someone because of a disability includes:</p> <ol> <li>Clearly indicating reasonable accommodations, including alternative formats and alternative tests, are available to people with disabilities;</li> <li>Providing clear instructions for requesting reasonable accommodations; and</li> <li>In advance of the assessment, providing all job applicants and employees who are undergoing assessment with as much information about the AI as possible.</li> </ol> <p>At the end of the day, employers should try to ensure decision-making tools measure abilities or qualifications that are truly necessary for the job. This means measuring abilities or qualifications directly when possible. Employers can also train staff to recognize and process requests for reasonable accommodations. Questions concerning an employee or applicant&rsquo;s disability and his ability to perform the essential functions of a job are often unique, and employers using IT as a screening device may need to take steps beyond what is necessary to address other forms of discrimination.</p> Court Declines to Provide Clarity on Responding to Sexual Harassment in Trucking Industry Apr 2022Employment & Labor Law Blog<p>Driving on I-70 heading west from East St. Louis, Illinois, one crosses the Mississippi River into Missouri, and about 250 miles later, crosses the Kansas River into Kansas City, Kansas. Over the course of about four hours, a driver employed by a trucking company will be working in not only three different states, but three different federal court of appeals circuits. Following a recent Supreme Court decision not to review a ruling from the Eighth Circuit, that driver&rsquo;s employer potentially remains subject to three different standards for responding to sexual harassment.</p> <p>The case is <i>Sellars v. CRST Expedited, Inc.</i>, which presented the issue of how employers must respond to reports of sexual harassment between co-workers to avoid liability under Title VII. The plaintiffs originally filed suit in 2015, asserting several claims against CRST based on alleged co-worker sexual harassment. According to the Eighth Circuit <a href="">opinion</a>, the case &ldquo;team drivers&rdquo; (a system where long-haul truck drivers worked in two-person crews) so that one driver can sleep while the other continues driving.&nbsp; This is done in the confined space of a tractor. CRST did not assign the driving pairs, but would approve teams who had mutually agreed to drive together. A team would not be approved where one of the drivers was tagged by HR as being &ldquo;male only,&rdquo; meaning that driver was not approved to pair with a female driver. The &ldquo;male only&rdquo; tag was applied to drivers who had previously been the subject of sexual harassment complaints.</p> <p>The Eighth Circuit opinion recounted numerous alleged instances of inappropriate sexual comments, sexual harassment, assaults, and threats of violence against female employees. The plaintiffs claimed the harassment created a hostile work environment, and the employer was negligent in responding to and failing to prevent harassment. The plaintiffs also asserted that the employer&rsquo;s policy (since rescinded) of removing the victim from the truck and forcing her to wait, unpaid, at a terminal until she could be placed on another truck, was <i>per se</i> retaliation for complaining about sexual harassment.</p> <p>Two questions were presented to the Supreme Court. First: &ldquo;Where an employee complains to her employer about sexual harassment, does the employer fully satisfy its legal obligation under Title VII if it stops the harassment of that employee by the particular harasser complained of (the rule in the Eighth Circuit), or must the employer also take action to deter future harassment by other potential harassers (the standard in the Ninth and Tenth Circuits)?&rdquo; The second was whether CRST&rsquo;s policies, which would tend to result in a reduction in pay and, would tend to cause a reasonable employee to &ldquo;expect that complaining of sexual harassment would directly lead to a net decrease in pay&rdquo; was a <i>per se </i>violation of Title VII (which is the rule in the Seventh Circuit).</p> <p>Rather than take up these questions and provide clarity for employers regarding their obligations to respond to complaints of sexual harassment, the Court denied review with no explanation (as is the usual practice). However, the brief submitted by the petitioners has highlighted the circuit-split for savvy plaintiff&rsquo;s attorneys. Employers should likewise take notice, because in a lawsuit, they may not have much control over which standard will apply.</p> <p>That is because Title VII plaintiffs have multiple options in deciding where to file their complaints. A plaintiff may file in a judicial district in which 1) an unlawful employment practice was alleged to be committed; 2) the judicial district in which the employment records relevant to the claim are maintained and administered; 3) in the judicial district in which the plaintiff worked; or 4) if the employer cannot be &ldquo;found&rdquo; in one of the first three districts, then in the district of the employer&rsquo;s principal place of business. Under the first option, the unlawful employment practice may be the harassment itself (which may span several states), the location of a manager or HR representative who takes an adverse employment action (in retaliation cases) or fails or refuses to conduct an investigation. For example, a plaintiff living in Des Moines, Iowa, working for a company headquartered in Chicago, who is harassed on a trip from Indianapolis to Denver, may file suit in as many as six different states. However, if an unlawful act occurs in Colorado, she may file suit there to fall within the more demanding Tenth Circuit standard for preventing harassment, and take advantage of a venue that is perceived as more plaintiff-friendly.</p> <p>Because over-the-road trucking necessarily spans multiple states, and multiple federal circuits, an employer is well-served by trying to comply with the most restrictive circuit in which it operates.</p> <p><b>Impact of the Great Resignation</b></p> <p>For the fifth year in a row, the &ldquo;driver shortage&rdquo; topped <a href="'s,ATRI%20noted%20in%20its%20report">the list</a> of industry concerns. Additionally, the trucking industry and those companies in the supply chain are among those hardest hit by &ldquo;the Great Resignation,&rdquo; although it may be more accurately labeled &ldquo;the Great Reshuffle.&rdquo; Studies show that truck drivers are not leaving the trucking industry, but pursuing more attractive employment opportunities elsewhere within the industry. This rapid movement of employees poses great challenges and risks to employers.</p> <p>There is obvious tension between the pressure to attract and retain experienced employees and strictly dealing with those accused of harassment. Employers may be reluctant to terminate harassers when it is so difficult to find qualified replacements. It may also be difficult to reject a qualified applicant with a history of harassment accusations. Conversely, it may be difficult to expand the talent pool to attract women, young people, and others in an industry that relies so much on word-of-mouth in hiring.</p> <p>The deciding factor for employers may then be legal liability, which is why the Supreme Court&rsquo;s decision to deny review is problematic. But, Title VII is not the only possible source of exposure for employers. Missouri, Kansas, and Illinois all recognize a cause of action for negligence in hiring or retaining an accused harasser. Although there are variations in how each state&rsquo;s courts have interpreted the claims, the basic elements are: 1) the employer hired or retained an employee when the employer knew or should have known of the employee&rsquo;s dangerous propensities; and 2) the employee injured a co-employee in manner consistent with those dangerous propensities. Employers may also be liable for other common law torts such as battery, assault, and infliction of emotional distress. For these claims, merely shuffling employees around may not effectively shield employers from liability.</p> <p><b>Key Takeaways and Best Practices</b></p> <ul> <li>Consider how actions to curb sexual harassment may have unintended negative consequences for female employees. In the <i>Sellars</i> case, female employees received a net decrease in pay due to being separated from their harassers. And there are other instances where female employees may be denied important benefits and opportunities, such as training, mentorship, and advancement opportunities. Similarly, if an employee has to be kept separated from a co-worker because of behavior, that person should probably not be a part of the organization.</li> <li>Although the <i>Sellars </i>case involved male-on-female harassment, keep in mind that sexual harassment may occur between members of the same sex, and LGBT+ employees are among the most at risk for sexual harassment.</li> <li>Forces in the labor market have made hiring new employees more difficult than ever. The push to hire new workers should not cause employers to let their defenses down. Retaining bad actors may be a short-term solution with long-term negative consequences.</li> <li>Although an employer may avoid liability under Title VII for co-worker harassment, keeping harassers around keeps the door open for common law tort claims, which unlike Title VII, may or may not be subject to damages caps.</li> </ul> MHRA Disability Discrimination Claims, "Reasonable Accommodation" Remains a Fact-Intensive Inquiry Mar 2022Employment & Labor Law Blog<p>The Court of Appeals for the Eastern District of Missouri recently <a href="">held</a> that the reasonableness of a disability accommodation under the Missouri Human Rights Act (&ldquo;MHRA&rdquo;) remains a fact-intensive, case-by-case inquiry, even when it comes to reassigning job duties to other employees. Importantly, the Court cautioned that employers and practitioners should exercise great caution when attempting to apply federal ADA reasonable accommodation precedents to MHRA claims.</p> <p><i>Loerch v. City of Union Missouri</i> involved a custodian who worked as the sole custodian at City Hall until 2015. The written job description stated that the job involved indoor and outdoor duties, but was mostly in an office setting. Specific outdoor tasks included washing windows, mowing grass, sweeping steps and sidewalks, and shoveling snow and ice. Loerch testified that approximately 10% of his time was spent on outdoor duties, while his manager testified that 25% of his time was spent outside.</p> <p>In 2013, Loerch was diagnosed with coronary artery disease (&ldquo;CAD&rdquo;). His doctor cleared him to return to full duty, but stated that he should not be exposed to extreme heat or cold. Loerch testified that he could perform &ldquo;virtually all&rdquo; of his outdoor duties without exposure to extreme heat or cold by, for example, mowing early in the day. However, shoveling snow and ice would potentially expose him to extreme cold, so he asked that another employee be assigned that task. Loerch testified that in the past, others had shoveled snow when he was absent. The City denied the requested accommodations, and Loerch claimed that he was told he must retire or be terminated. He retired and subsequently filed suit claiming he was terminated for his disability.</p> <p>The trial court granted the City&rsquo;s motion for summary judgment, finding that Loerch was not disabled within the meaning of the MHRA. The trial court found that Loerch&rsquo;s CAD did not substantially limit him from the major life activity of working, and no reasonable accommodation would allow him to work in extreme temperatures, an essential function of his job. The Court of Appeals reversed the trial court, finding, in part, that disputed facts about the reasonableness of the requested accommodation precluded summary judgment.</p> <p>A threshold element of a claim for disability discrimination is that the plaintiff has a &ldquo;disability&rdquo; within the meaning of the MHRA. A disability is a physical impairment that substantially impairs a major life activity. Unlike the ADA, which defines &ldquo;major life activity&rdquo; expansively, to include almost all of life&rsquo;s activities, a major life activity under the MHRA is defined by Missouri Department of Labor regulation. Under the MHRA, however, a major life activity is a life activity which <b><i>affects employability</i></b>, such as &ldquo;communication, self-care, socialization, education, vocational training, employment and transportation.&rdquo; Finally, the plaintiff must be able to perform the essential functions of the job with or without reasonable accommodation.</p> <p>The Court of Appeals found that CAD was a physical impairment, but the City argued that it did not substantially limit a major life activity. The Court of Appeals rejected the City&rsquo;s argument that Loerch was not substantially limited because he could other work, where he would not be exposed to extreme conditions. This fact alone was not enough to prove that Loerch was not substantially limited.</p> <p>The Court of Appeals then evaluated whether the plaintiff could perform the essential functions of the job. The Court found that factual questions abound regarding the nature of the job functions performed in extreme heat or cold, precluding summary judgment. Those questions included the amount of time spent on functions such as mowing or shoveling snow and ice, all of which were material and disputed. Finally, the Court of Appeals turned to the issue of reasonable accommodation.</p> <p>The City&rsquo;s only argument on summary judgment was that assigning other employees to perform the plaintiff&rsquo;s job functions was unreasonable, which the Court of Appeals rejected. The most noteworthy statement in the Opinion deals with federal court cases interpreting the ADA. According to the Court, to the extent any federal court case holds that assigning others to perform certain tasks for an employee &ldquo;can <i>never</i> be reasonable as a matter of law&rdquo; is &ldquo;inconsistent with the individualized, fact-dependent, case-by-case approach taken by Missouri courts&rdquo; in MHRA cases. In other words, if a federal ADA case tries to short-circuit the fact-intensive inquiry and instead rely upon a &ldquo;bright line&rdquo; rule, the Court of Appeals for the Eastern District does not want to hear about it.</p> <p>The Court of Appeals also distinguished prior MHRA cases regarding shifting duties to other employees. According to the Court, none of those cases establishes a <i>per se</i> rule in Missouri that shifting job duties to others is unreasonable as a matter of law. Whether the requested accommodation includes reassigning job duties to other employees, hiring additional employees, or restructuring an employee&rsquo;s job, the reasonableness of an accommodation request must be evaluated on its own facts. However, the law remains that a reasonable accommodation does not require an employer to reassign duties or restructure a job in a way that &ldquo;would usurp the legitimate rights of other employees.&rdquo;</p> <p>Ultimately, the Court of Appeals held that there were disputed material facts &ndash; such as how often the task was performed, the burden on other employees, the City&rsquo;s resources &ndash; that precluded summary judgment. The decision of the trial court was reversed and remanded for further proceedings.</p> <p><b><u>Key Takeaways</u></b></p> <ul type="disc"> <li>The Court of Appeals emphasized the difference between the ADA&rsquo;s expansive definition of major life activities and the MHRA&rsquo;s definition, which is limited to those that affect a person&rsquo;s employability.</li> <li>Employers and practitioners who are used to dealing with the ADA should take care not to apply to any <i>per se</i> rules from federal ADA accommodation cases to MHRA claims.</li> <li>Written job descriptions are often relevant in accommodations cases. Employers should take care that the job descriptions accurately reflect the duties required to be performed and update them as appropriate.</li> </ul> A Whirlwind Year for Labor & Employment Law Jan 2022Employment & Labor Law Blog<p>As in 2020, a major theme of the past year has been the Covid-19 pandemic, and the response of employers and governments, as the economy began to re-open and vaccines became widely available. But Covid-19 litigation was not the only activity in the labor and employment law arena in 2021.</p> <p><b><u>FEDERAL VACCINE MANDATE LITIGATION</u></b></p> <p>The saga of the OSHA &ldquo;vaccine-or-testing&rdquo; Emergency Temporary Standard (ETS) has been extensively documented on this <a href="/?t=40&amp;an=119548&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Blog</a>. However, as the new year dawns, the story is merely entering a new chapter.<b>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b></p> <p>In the first week of 2022, the Supreme Court held oral argument on the two Covid-19 vaccine mandates and issued two unsurprising opinions on January 13th. First, the Court overturned the decision of the Sixth Circuit and reinstated the Fifth Circuit&rsquo;s stay of the OSHA ETS, regarding vaccine mandates for private employers with 100 or more employees. Although the Court did not strike down the ETS, as a practical matter, the ETS in its current form is dead. OSHA has stated that it will not enforce the ETS as currently written (although OSHA has indicated that it will still hold employers to the OSH Act&rsquo;s &ldquo;general duty&rdquo; clause in ensuring workplace safety). In its opinion, the Court stated forcefully that if it reviewed the ETS in the merits, the ETS would be struck down. Importantly, the concurring opinion written by Justice Gorsuch (and joined by Justices Thomas and Alito) relied upon the &ldquo;major questions&rdquo; doctrine. Justice Gorsuch described the doctrine as &ldquo;closely related to the nondelegation doctrine.&rdquo; The Biden administration is certainly not eager to see a robust application of the doctrine over the next three years.</p> <p>Although the Court held that the petitioners were likely to succeed in overturning the ETS on the merits, a more tailored ETS, focusing on particular industries could pass muster. For example, work environments where many people are compressed in a small area may pose the necessary &ldquo;grave danger&rdquo; justifying OSHA intervention. You may read the full opinion here: <i><a href="">National Federation of Independent Business v. OSHA</a></i></p> <p>In the companion case concerning vaccine mandates for healthcare workers, the Court held that in certain environments, vaccine mandates are authorized. In <a href=""><i>Biden v. Missouri </i></a>, Missouri, Kansas, and several other states challenged a Center for Medicare and Medicaid Services (CMS) rule requiring all facilities receiving Medicare or Medicaid funds to require vaccination of all employees. The Court wrote, in its <i>per curiam </i>opinion, that the Secretary of Health and Human Services was enabled by statute to place detailed conditions with which facilities must comply to receive Medicare or Medicaid funds. Those conditions have also included a requirement that healthcare providers maintain and enforce an &ldquo;infection prevention and control program designed &hellip; to help prevent the development and transmission of communicable diseases and infections.&rdquo;</p> <p>Finding that the Secretary could enact the final interim rule, the Court vacated the injunction issued by the Eastern District of Missouri. For healthcare providers, the window for compliance with the CMS rule is narrow, and immediate action is required. Here are the major features of the CMS rule:</p> <ul type="disc"> <li>For the 25 petitioner states (except Texas), which include Missouri and Kansas, healthcare workers must receive their first vaccine dose by February 14, 2022, and be fully vaccinated by March 15.</li> <li>For all other states, covered healthcare workers must receive their first vaccine dose by January 27, 2022, and be fully vaccinated by February 22.</li> <li>Healthcare facilities are required to keep records of employees&rsquo; vaccination status.</li> <li>Employers must develop policies to include medical and religious exemptions or accommodations.</li> <li>The CMS rule does not apply to healthcare workers who provide exclusively telehealth services.</li> <li>Employers face serious consequences for noncompliance, including hefty fines and revocation of eligibility to receive Medicare or Medicaid funds.</li> </ul> <p>While litigation surrounding CMS&rsquo;s authority to issue the vaccine mandate appears to be resolved for all practical purposes, there will be no shortage of litigation over its implementation. Baker Sterchi attorneys anticipate that the litigation areas to watch over the coming year include: denial of religious or medical accommodations (including requests which employers deem to be &ldquo;insincere&rdquo;) and federalism concerns in states enacting laws purporting to contravene the CMS Rule.</p> <p><b><u>MISSOURI AND OTHER STATES SUE TO STOP FEDERAL CONTRACTOR VACCINE MANDATE</u></b></p> <p><b><i>Missouri, et al. v. Biden</i>, 4:21-cv-01300 (E.D. Mo. 2021)</b></p> <p>On October 29, 2021, Missouri and nine other states filed suit against President Biden, the United States, and 13 other defendants seeking to stop Executive Order 14042, 86 Fed. Reg. 50,985 (Sept. 14, 2021) which required that all employees of federal contractors be vaccinated. The contractor mandate includes all full-time and part-time employees of any employer who has a contract with the federal government, including those employees who are not themselves working on or in connection with a federal contract. Unlike the OSHA ETS, EO 14042 applies to all employers with federal contracts, regardless of size. Employers must ensure that their employees are fully vaccinated by no later than December 8, 2021.</p> <p>The States assert that they and their state agencies have contracts with the federal government and therefore would be required to ensure that their employees are vaccinated. Their lawsuit alleges that the mandate violates the federal Procurement Act, Procurement Policy Act, Administrative Procedures Act, and violates the States&rsquo; police powers, as well as the Tenth Amendment&rsquo;s anti-commandeering doctrine, separation of powers, and various other constitutional provisions.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>On December 13, 2021, the Eighth Circuit Court of Appeals denied the States&rsquo; motion to stay enforcement of the Executive Order pending appeal. Like the litigation surrounding the OSHA ETS, this case seems destined to be decided by the Supreme Court.</p> <p><b><u>NOTEWORTHY EIGHTH CIRCUIT DECISIONS</u></b></p> <p><b><i>The Supreme Court Will Hear Eighth Circuit Case Involving Employment Arbitration</i></b></p> <p>The Supreme Court granted certiorari in an Eighth Circuit case involving employment arbitration. In <i>Morgan v. Sundance, Inc.</i>, (read the Opinion <a href="">here</a>) the District Court held that the employer had waived the right to compel arbitration where the case had been in litigation for more than eight months. A divided Eighth Circuit panel reversed the decision of the District Court, holding that the defendant had not waived its right to compel arbitration. According to the Eighth Circuit, the defendant had not slept on its rights, because much of the eight months in court had been devoted to trying to stay the case on procedural grounds, rather than litigating the merits. Therefore, the plaintiff was not prejudiced by the motion to compel arbitration. One circuit judge dissented, questioning why the defendant would wait eight months to even mention arbitration.</p> <p>According to the <i>Morgan</i> majority, the nine federal circuit courts that have adopted the &ldquo;prejudice&rdquo; standard for finding waiver of arbitration rights, contradict the 2011 Supreme Court decision in <a href=""><i>AT&amp;T Mobility LLC v. Concepcion</i></a> which requires lower courts to evaluate arbitration agreements &ldquo;on an equal footing with other contracts.&rdquo; Adding the &ldquo;prejudice&rdquo; requirement to waiver of arbitration rights is an additional step that is not used in other contract cases. Therefore, the Supreme Court should weigh in on the appropriate standard in order to ensure consistency across all federal circuits.</p> <p>The Supreme Court is likely to decide the case in fall 2022.</p> <p><b><i>Eighth Circuit Clarifies that Attendance is Generally an Essential Job Function for ADA Purposes</i></b></p> <p>Throughout its history interpreting the ADA, the EEOC has generally been reluctant to state unequivocally that regular attendance is an essential job function. Rather, in recent years, the EEOC has suggested that an extended leave of absence can constitute a reasonable accommodation in many instances.</p> <p>Bucking that trend, the Eighth Circuit held in May that regular attendance is generally an essential job function for many jobs. In <i>Evans v. Cooperative Response Center, Inc.</i>, No. 19-2483 (8th Cir. May 4, 2021), the plaintiff sued for violations of the ADA and FMLA, and retaliation. Evans suffered from reactive arthritis. Due to complications from her medical condition, Evans exhausted her FMLA leave, and when she could not report to work, she was assessed points under a &ldquo;no fault&rdquo; attendance policy and terminated. The Court evaluated the requirements of Evans&rsquo; position as well as the employer&rsquo;s testimony, job descriptions, and policies regarding attendance. Because she was the only office assistant for the company, and the employer was not required to reassign existing workers to fill her job duties, attendance was essential. Under these circumstances, the Court found that intermittent FMLA leave and the ADA did not excuse her from the essential job requirement of regular and reliable attendance.</p> <p>As always, ADA accommodation claims must be evaluated on a case-by-case basis. With the increasing practicability of remote work, not all jobs require in-person attendance, and for many, remote work may be a reasonable accommodation.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p><b><i>Post #MeToo, a Hostile Work Environment Must Still Be &ldquo;Severe and Pervasive&rdquo;</i></b></p> <p>In <i>Lopez v. Whirlpool Corp.</i>, No. 19-2357 (8th Cir. Mar. 4, 2021), the Eighth Circuit affirmed the grant of summary judgment to an employer on claims of hostile work environment and retaliation. The district court found that the alleged conduct of a co-worker which included touching the employee on her back, invading her personal space, and blowing on her finger while calling her &ldquo;baby&rdquo; was not severe or pervasive enough to rise to a hostile work environment. The court also affirmed summary judgment on the retaliation claim, finding although the employee complained about feeling unqualified for an assigned task, she did not tie that complaint to sex discrimination or harassment.</p> <p>Plaintiff Lopez worked at a Whirlpool manufacturing plant in Amana, Iowa, where she made refrigerators. Lopez claimed her co-worker Brian Penning, made multiple unwanted advances, touched her, and stared at her for long periods of time. To raise a triable fact on whether the complained of harassment affected a term, condition, or privilege of employment, the claim triggering conduct must be severe or pervasive enough to create an objectively hostile or abusive work environment. The court found that although her co-worker should be embarrassed and ashamed of his behavior towards Lopez, it did not meet the exacting standard that must be applied when determining an employer&rsquo;s liability for a hostile work environment. The court further concluded that Lopez failed to provide evidence that Whirlpool knew or should have known about Penning&rsquo;s conduct. Lopez admitted to not informing superiors of the unwanted touching, and she resigned four days after filing a formal complaint, which did not give Whirlpool reasonable time to address the complaint.</p> <p><b><u>MISSOURI FEDERAL DISTRICT COURT CASES</u></b></p> <p><b><i>Eastern District Finds McDonald&rsquo;s and Franchisee were Joint Employers</i></b></p> <p>In <i>Johnson v. McDonald Corp.</i>, No. 4:20-cv-1867-RWS (E.D. Mo. June 3, 2021), the plaintiff worked at a McDonalds franchise located in St. Louis. Plaintiff claimed she was exposed to sexual harassment and assault during the few weeks she worked at the McDonalds. Plaintiff brought a Title VII suit against not only the franchisee, Tenaj, LLC, but also McDonald&rsquo;s Corp. and McDonald&rsquo;s USA, LLC, which both moved to dismiss arguing Plaintiff was not their &ldquo;employee&rdquo; under Title VII.</p> <p>Applying the pleading standard required by Fed. R. Civ. P. 8, the Court determined that Plaintiff satisfied the standard when pleading that the Defendants were her employers under either a joint employer or agency theory. The Court reasoned that since the employee had only worked for the McDonald&rsquo;s franchise for a short period of time, she may not have been aware of the entities that provided oversight of the franchise, or the individual role each entity played within the corporate structure. The court readily distinguished these facts from cases cited by Defendants, finding Plaintiff&rsquo;s allegations of Defendants&rsquo; involvement in the day-to-day operations of the franchise was sufficient to raise a reasonable expectation that discovery will lead to relevant evidence of the claim.</p> <p>The parties disagreed on which joint employer standard the Court should apply. The Defendants urged the Court to adopt the <i>Baker</i> test (<i>Baker v. Stuart Broadcasting Co.</i>, 560 F.2d 389, 392 (8th Cir. 1977), which requires courts to consider: (1) interrelation of operations (2) common management (3) centralized control of labor relationship and (4) common ownership or financial control. Again, the Court determined that Plaintiff had pleaded sufficient facts to plausibly allege that McDonald&rsquo;s USA and/or McDonald&rsquo;s Corp. was a joint employer with the franchisee. Under the <i>Twombley </i>standard, the Plaintiff raises a reasonable expectation that one or more of these factors would become apparent during the course of discovery.</p> <p>Although this decision is not binding outside of the Eastern District of Missouri, it is a sobering result that may attract potential plaintiffs to the district and require national franchisors to defend local employment disputes beyond the motion to dismiss stage.</p> <p><b><u>NOTEWORTHY MISSOURI COURT OF APPEALS DECISIONS</u></b></p> <p><b><i>Arbitration Clauses with &ldquo;Unfettered&rdquo; Modification Rights Are Unenforceable</i></b></p> <p>In July, the Western District Court of Appeals affirmed that a delegation provision in an arbitration agreement must be supported by consideration. An &ldquo;unfettered&rdquo; right vested in management to modify its terms is an illusory promise, which is not adequate consideration to support a contract.</p> <p>In <i>Johnson v. Menard, Inc.</i>, WD 84138 (Mo. Ct. App. W.D. July 27, 2021), the court of appeals held that reference to AAA rules is &ldquo;clear and unmistakable&rdquo; evidence that the parties intended threshold questions of arbitrability to be determined by the arbitrator. However, whether an arbitration agreement is formed remains within the province of the courts. The question then was whether the delegation provision was supported by consideration. The Agreement stated &ldquo;I UNDERSTAND THAT THIS AGREEMENT CANNOT BE MODIFIED EXCEPT BY THE PRESIDENT OF MENARD, INC.&rdquo; The court held that vesting unilateral authority to modify the agreement without limit or notice meant it was &ldquo;unfettered,&rdquo; and made Menard&rsquo;s promise illusory.</p> <p>Because the delegation provision was not enforceable, the Court had authority to determine enforceability of the entire arbitration agreement. The Court held that unfettered modification provision meant entire agreement lacked consideration, and motion to compel arbitration was denied.</p> <p><b><i>A Leave of Absence May be a Reasonable Accommodation under the MHRA</i></b></p> <p>In <i>Sherry v. City of Lee&rsquo;s Summit, Missouri</i>, WD 83635 (Mo. Ct. App. W.D. Mar. 9, 2021), following a trial for disability discrimination under the Missouri Human Rights Act, the City of Lee&rsquo;s Summit moved for judgment notwithstanding the verdict. The City argued that Sherry did not prove he was disabled because the MHRA defines &ldquo;disability&rdquo; as &ldquo;a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, <b><i>which with or without reasonable accommodation does not interfere with performing the job</i></b>.&rdquo; According to the City, since Sherry could not report to work for an extended period of time, his disability interfered with performing the essential functions of his job.</p> <p>The City relied on <i>Medley v. Valentine Radford Communications, Inc.</i>, 173 S.W.3d 315 (Mo. App. W.D. 2005) for the proposition that &ldquo;an employee who cannot regularly come to work is not able to satisfy any functions of the job, let alone the essential ones.&rdquo; However, the Court of Appeals held that <i>Medley </i>does <i>not</i> hold that a leave of absence is an unreasonable accommodation as a matter of law. In a footnote, the Court holds open the possibility that in some cases, &ldquo;a factfinder may determine that a requested leave started out as a reasonable accommodation but becomes unreasonable as time wears on or as circumstances change.&rdquo; But ultimately whether an employee meets the definition of disabled under the MHRA is a question of fact for the jury.</p> <p>This case illustrates some of the difficulties employers may face in accommodating disabilities, particularly where an extended leave of absence may be a reasonable accommodation. Like the EEOC, the Western District is reluctant to state that regular attendance is always an essential job function. Disability accommodations must therefore be evaluated on a case-by-case basis.</p> <p><b><u>NOTEWORTHY DISTRICT OF KANSAS CASES</u></b></p> <p><b><i>District of Kansas Compels Arbitration where Employer&rsquo;s Right to Modify is not &ldquo;Unfettered&rdquo;</i></b></p> <p>A recent District of Kansas decision is worth revisiting, given how few arbitration cases are published in the District. In <i>Braden v. Optum RX, Inc.</i>, the Court held that an arbitration provision which limited the employer&rsquo;s right to modify terms was not one that granted &ldquo;unfettered&rdquo; discretion, and so it did not lack consideration. The provision at issue required the employer to provide at least 30 days&rsquo; notice to its employees of impending modifications, and only went into effect on January 1 of the following year. The employer&rsquo;s promise to arbitrate was not &ldquo;illusory.&rdquo; More on this case can be found in a recent post on Baker Sterchi&rsquo;s <a href=";anc=369&amp;format=xmldetail&amp;stylesheet=FirmNewsItems_blog&amp;p=5258">Kansas Employment Law Blog</a>.</p> <p><b><u>NEW LAWS, ORDINANCES, AND RULES</u></b></p> <p><b><i>St. Louis &ldquo;Ban the Box&rdquo; Went into Effect on January 1, 2021</i></b></p> <p>In 2020, the City of St. Louis enacted Ordinance No. 71074, a ban-the-box ordinance applicable to private employers with ten or more employees. The Ordinance went into effect on January 1, 2021. Under the ordinance, employers cannot inquire about an applicant&rsquo;s criminal history until after the employer has interviewed the applicant and determined that the applicant is otherwise qualified for the position. Employers cannot base a hiring decision on the applicant&rsquo;s criminal history unless the decision was based on all the information available, including the frequency, recency, and severity of the crime and the crime was reasonably related to or bears upon the duties and responsibilities of the position. However, the Ordinance is inapplicable where local, state, or federal law or regulation excludes applicants with certain criminal convictions.&nbsp;A similar ordinance was enacted in Kansas City in February 2018.</p> <p><b><i>U.S. Department of Labor Issues Regulations to Benefit Tipped Employees</i></b></p> <p>A new DOL regulation will likely mean that tipped employees will see larger paychecks in 2022. The Fair Labor Standards Act contains an exception to the standard minimum wage for tipped employees. Employers may take a &ldquo;tip credit&rdquo; and pay tipped employees as little as $2.13 per hour, as long as they earn at least the standard minimum wage of $7.25 (with tips included). In a final rule published by the DOL on October 29, 2021, the DOL revived the so-called &ldquo;80/20 Rule&rdquo; for tipped employees. The Trump administration had rescinded the rule in favor of a &ldquo;reasonable time&rdquo; standard.</p> <p>Under the 80/20 Rule, tipped employees&rsquo; duties are divided into three categories: 1) tip-generating duties (e.g., taking orders, talking to customers, serving drinks, delivering food to tables); 2) directly-supporting duties (e.g., rolling silverware, clearing tables); and 3) non-tipped duties (e.g., cleaning bathrooms, washing dishes, taking out trash). Employers may only claim a tip credit for a tipped employee&rsquo;s work where at least 80 percent of the employee&rsquo;s time that week is spent on tip-generating duties and no more than 20 percent is spent on directly-supporting duties. If an employee&rsquo;s time spent on directly-supporting duties exceeds 20 percent of the work week, all time above 20 percent must be paid at the minimum wage rate. Additionally, if directly-supporting work is performed for a continuous period of 30 minutes or more, the employer cannot claim the tip credit. Under the new rule, any time spent on non-tipped duties must be paid at the minimum wage rate.&nbsp;&nbsp;</p> <p>For example, assume a bartender works 40 hours in a week. If no more than 8 hours is spent on directly-supporting work, then the employer may take a tip credit for all hours worked. However, if she spends 12 hours on directly supporting work, then the minimum wage must be paid for the 4 hours in excess of 20%.</p> <p>The Rule also prohibits employers from keeping any portion workers&rsquo; tips, regardless of whether the employer takes a tip credit. Employers face a fine of up to $1,100 for each instance the DOL finds that the employer retained employee tips. The Rule goes into effect on December 31, 2021, and litigation of the Rule appears likely.</p> <p><b><u>NEW ILLINOIS EMPLOYMENT LAWS</u></b></p> <p>As in 2020, the Illinois legislature was once again busy in the Employment Law arena.&nbsp;The Illinois Freedom to Work Act, <a href=";ChapterID=68">(820 ILCS &sect; 90).</a> which limits employers&rsquo; use of noncompete and non-solicitation restrictive covenants for employees who are not highly compensated, takes effect on January 1, 2022.&nbsp;Specifically, the law:</p> <ul> <li>Prohibits employers from entering into noncompete agreements with employees earning $75,000 or less, and from entering into non-solicitation agreements with employees earning $45,000.</li> <li>Contains an escalator clause which provides that for noncompete agreements, the salary threshold amount will increase every five years by $5,000 until January 1, 2037, when the amount will equal $90,000.&nbsp;For non-solicitation agreements, the threshold amount will increase every five years by $2,500 until January 1, 2037, when the amount will equal $52,500.</li> <li>Prohibits employers from entering into noncompete or non-solicitation agreements with employees who were terminated, furloughed, or laid off due to the Covid-19 pandemic, unless compensation is provided, in an amount equaling the employee&rsquo;s base salary at the time of termination for the period of enforcement <i>minus </i>compensation earned from outside employment during that same period.</li> </ul> <p>Illinois employers who utilize restrictive covenants in employment agreements should review those agreements, to ensure compliance with the new law.</p> <p>Earlier in the year, the legislature amended the Illinois Human Rights Act to place new restrictions on employers&rsquo; ability to consider criminal conviction records when making employment decisions.&nbsp;The amendments allow employers to consider applicant and employee criminal conviction records in only two circumstances: (1) where a &ldquo;substantial relationship exists between the conviction and the employment action being taken, and (2) where granting or continuing an individual&rsquo;s employment would pose an unreasonable risk to safety or property of specific individuals, or to the public.&nbsp;Employers must consider the following factors in determining whether a conviction is disqualifying:</p> <p>i.&nbsp; &nbsp; &nbsp;The length of time since the conviction;</p> <p>ii.&nbsp; &nbsp; The number of convictions represented in the conviction record;</p> <p>iii.&nbsp; &nbsp;The severity of the conviction and its relationship to the safety of others;</p> <p>iv.&nbsp; &nbsp;The circumstances surrounding the conviction;</p> <p>v.&nbsp; &nbsp; The age of the employee at the time of conviction; and</p> <p>vi.&nbsp; &nbsp;Any evidence of rehabilitation.</p> <p>Further, before an employer takes any adverse action based on a criminal conviction, it must engage in an interactive process with the applicant or employee, giving that individual notice of the potentially disqualifying conviction, providing a copy of any relevant criminal history report, and explaining the individual&rsquo;s right to respond (within five days), including any challenge to the accuracy of the conviction record or evidence of mitigation. A final decision by the employer must be accompanied by a notice of the disqualifying conviction and reason for the decision, and notification of the person&rsquo;s right to file a charge with the Illinois Department of Human Rights.</p> <p>Note that these amendments do not alter and are in addition to the state&rsquo;s Ban-the-Box law, which dictates when and how during the hiring process an employer my obtain criminal conviction information about an applicant.</p> <p><b><u>A WILD 2021 CONCLUDES, WITH MORE IN STORE FOR 2022</u></b></p> <p>2021 was a lively year for labor and employment law, taking center stage not only in the courts but also in the court of public opinion. In 2022, we can expect much of the same. Baker Sterchi attorneys will be following these developments with great attention and providing updates and analysis on this rapidly developing legal landscape.</p> Reacts to COVID-19 Pandemic and Issues Vaccine-or-Testing Mandate: What Employers Need to Know (Update) Dec 2021Employment & Labor Law Blog<p><strong>Update 12.21.2021:</strong></p> <p>On December 17, 2021, the Court of Appeals for the Sixth Circuit dissolved the stay issued by the Court of Appeals for the Fifth Circuit on November 12, 2021. All of the petitions challenging the ETS filed across the country had been consolidated in the Sixth Circuit for adjudication.</p> <p>The three-member panel issued a 2-1 decision dissolving the Fifth Circuit&rsquo;s stay. The standard for OSHA to issue its ETS is whether it is (1) necessary to protect employees from (2) a grave danger. The dissent provided a preview of what arguments to expect before the Supreme Court. The dissent pointed out that &ldquo;necessary&rdquo; can mean either &ldquo;useful&rdquo; or &ldquo;indispensable,&rdquo; and which definition is applied may well decide the case. Choosing the latter definition, the dissent found that OSHA had not proved that the vaccine-or-test mandate was &ldquo;indispensable&rdquo; to solving the COVID-19 pandemic. The dissent also questioned whether OSHA could establish that COVID-19 is a &ldquo;grave&rdquo; workplace danger, as opposed to a danger encountered in all aspects of life.</p> <p>The majority countered that Congress could not have intended &ldquo;necessary&rdquo; to require &ldquo;the most narrowly tailored&rdquo; response from OSHA. The majority also credited OSHA&rsquo;s findings that traditional workplaces are particularly ripe for transmission, placing workers at heightened risk while at work, and therefore have established a &ldquo;grave danger&rdquo; of COVID-19 transmission in the workplace. Judge Gibbons wrote a separate concurrence, noting that because OSHA has been tasked by Congress with making policy, the Court should not substitute its judgment for that of the agency.</p> <p>Following issuance of the decision dissolving the stay, OSHA announced via a litigation update that it will not issue citations for noncompliance with any ETS requirement before <b>January 10, 2022</b>, except for the testing requirement. Enforcement of the testing requirements under the ETS will not begin until <b>February 9, 2022</b>, as long as the employer is &ldquo;exercising reasonable, good faith efforts to come into compliance with the standard. For more information about the specific requirements, see our original blog post below.</p> <p>No party has so far indicated that it will petition the Sixth Circuit for rehearing en banc. The deadline to do so is December 31. The challengers to the ETS may be eager for a battle before the high court, rather than to seek rehearing. The Supreme Court has already received numerous emergency applications to freeze the Sixth Circuit decision, and has asked for responses to the challengers&rsquo; requests by December 30. Justice Kavanaugh will handle referral of the case to the full Court for review. However, grant of the application is not a foregone conclusion, as the Court recently rejected a challenge to New York&rsquo;s regulation requiring healthcare workers to receive a COVID-19 vaccine.&nbsp;</p> <p>In the event the Supreme Court accepts the case for review, there is no doubt interpretation of OSHA&rsquo;s enabling act will be front and center. However, in an emergency application filed by a group of 27 state attorneys general (including Missouri and Kansas) assert that the ETS also violates the Tenth Amendment, the Commerce Clause, and the Non-Delegation Doctrine. Religious groups have likewise asserted that the religious exemptions are inadequate and violate the First Amendment and the Religious Freedom Restoration Act of 1993. The state attorneys general requested that the Supreme Court impose an emergency stay of the ETS pending review, or in the alternative, grant expedited review and strike down the ETS.&nbsp;</p> <p><strong> Original Post 11.15.2021:</strong></p> <p>Since President Biden&rsquo;s September announcement that employers with 100 or more employees must require vaccination or weekly testing of their employees, observers have waited anxiously for details from the Occupational Safety and Health Administration. The new Emergency Temporary Standard (ETS), published by OSHA in the Federal Register on November 5, 2021, contains three main components: full vaccination, or weekly testing of employees who are not &ldquo;fully vaccinated&rdquo; (with attendant recordkeeping requirements), and a face covering requirement. These components are discussed in detail below.&nbsp;As employers and practitioners begin to navigate the ETS requirements, they should keep in mind these important points:</p> ►Starting December 5, 2021, unvaccinated employees must wear face coverings.&nbsp;<br /> <br /> ►Starting January 4, 2022, companies must implement and enforce a written mandatory vaccine policy.&nbsp;<i>Alternatively</i>, a company may adopt a written policy that gives its employees a choice to either become fully vaccinated <i>or</i> undergo weekly testing and wear a face covering at work.<br /> <br /> ►An employer&rsquo;s vaccine requirement is still subject to Title VII and the Americans with Disabilities Act. Employees with a sincerely held religious belief or practice contrary to vaccination or people who cannot be vaccinated due to a disability must be accommodated, unless accommodation would cause &ldquo;undue hardship&rdquo; on the employer. The EEOC has provided detailed guidance on what constitutes an &ldquo;undue hardship&rdquo; under the ADA. [<a href="">Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA</a>]&nbsp;&nbsp;<br /> <br /> ►A person is not considered &ldquo;fully vaccinated&rdquo; under the ETS until two weeks after they receive the final vaccine dose (or single dose of the Johnson &amp; Johnson vaccine).&nbsp;Even employees who have received the full dosage will be subject to weekly testing requirements until two weeks has elapsed from the final dose.&nbsp;Employers should encourage workers who plan on getting vaccinated to do so now to avoid the weekly testing requirements.<br /> <br /> ►OSHA intends for the ETS to preempt all inconsistent state and local laws and regulations, including prohibitions on vaccine mandates and mask requirements.<br /> <br /> ►OSHA does <i>not </i>intend for the ETS to supplant collective bargaining agreements with terms that exceed OSHA requirements.<br /> <br /> ►On Friday, November 5<sup>th</sup>, a three-judge panel for the Fifth Circuit Court of Appeals issued an emergency stay of the ETS, citing &ldquo;grave statutory and constitutional issues.&rdquo;&nbsp;Petitioners moved for a permanent injunction and the Court is proceeding with an expedited briefing schedule.&nbsp;It is possible that the entire rule will be struck down by the Court, or that only parts of the rule will survive this permanent injunction stage. It is also unclear whether the stay applies in states outside of the Fifth Circuit (which covers only Texas, Louisiana, and Mississippi) and whether the Court will refer the case to the Multi-District Litigation Panel for consolidation with other cases filed around the country. Another U.S. Circuit Court of Appeals &ndash; the Seventh Circuit &ndash; has weighed in on COVID vaccination requirements, handing down in August a forcefully written opinion upholding Indiana University&rsquo;s vaccination requirement for its new and returning students. We will continue to update this blog as these cases develop. <p><b><br /> Counting Employees</b></p> <p>How do you know if the ETS applies to your company?&nbsp;Consistent with the ETS, counting an &ldquo;employee&rdquo; should be interpreted very broadly.&nbsp;OSHA explains that the 100-employee threshold was determined based on administrative feasibility for the employer, rather than on likelihood of community spread, with smaller businesses being less able to easily absorb additional administrative costs.</p> <p>Under the ETS, all employees must be counted, regardless of where they are located and across however many facilities.&nbsp;The ETS does not differentiate between part-time and full-time employees (independent contractors do not count toward the 100-employee threshold).&nbsp;While remote workers and employees who work exclusively outside are not subject to the vaccine or testing requirements, they do count towards the 100-employee threshold.&nbsp;For example:</p> <p>►A company with 50 full-time and 50 part-time employees at one facility has 100 employees and is subject to the ETS.</p> <p>►A company with 50 full-time employees at one facility and 50 full-time employees at another facility in a different city has 100 employees and is subject to the ETS.</p> <p>►A company with 80 full-time employees at one facility and 20 temporary employees provided by a staffing agency has 80 employees and is not subject to the ETS.</p> <p>►A company with 50 full-time in-person employees and 50 remote workers has 100 employees and is subject to the ETS even though the remote workers are not subject to vaccine or testing requirements, except when visiting an in-person workplace.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>►A franchisor company with 100 employees is subject to the ETS, but an individual franchisee of that company with only 25 employees is not subject to the ETS.</p> <p><b>Vaccination Requirements</b></p> <p>The most groundbreaking element of the ETS is the authority it gives employers with 100 employees or more to require each employee to reach &ldquo;fully vaccinated&rdquo; status, with few exceptions.&nbsp;</p> <p><b>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b><b>Vaccination Status</b></p> <p>Employees who are not excluded from the ETS (that is, employees who are 100% remote or exclusively outdoors) must provide proof of vaccination to the employer. Proof of vaccination may be in the form of a state issued card &ndash; which may be scanned or photographed from a phone and e-mailed &ndash; a QR Code, Apple Wallet ID, or similar electronic vaccination card.</p> <p>If the employee cannot provide proof of vaccination, the employee may provide a signed statement attesting to: (1) their vaccination status (either full or partial); (2) their vaccination card being lost or stolen, and the employee has not been able to secure a copy despite efforts to do so, (3) a description of the facility and the provider of the vaccination; and (4) a declaration, certification, or oath that the statement is true and accurate and acknowledging that providing false information may subject the employee to criminal penalties.</p> <p>Employees who do not meet one of the proof of vaccination requirements must be treated as not fully vaccinated, and they are subject to weekly testing.</p> <p>The employer is required to receive and process requests for medical or religious accommodation and provide accommodation as necessary.&nbsp;&nbsp;</p> <p><b>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </b><b>Paid Leave</b></p> <p>The ETS requires employers to provide at least four hours of paid sick leave during the workday for employees to get vaccinated. Employers must also provide a &ldquo;reasonable time and paid sick leave&rdquo; to recover from the side effects of the vaccine for each dose.&nbsp;OSHA estimates the time to recover from vaccine side effects may range from zero to 1.8 days, on average. Employers may require their employees to use banked sick time, but cannot require employees to go into the negative on sick time or use vacation or other banked PTO.</p> <p>Absent a collective bargaining agreement, company policy, or state or local law to the contrary, nothing in the ETS requires employers to provide paid leave to employees who miss work due to being diagnosed with COVID-19.</p> <p><b>Testing Requirement</b></p> <p>Any employee who is not &ldquo;fully vaccinated,&rdquo; including those who decline vaccination or are exempt for medical or religious reasons, are subject to the ETS testing requirement.&nbsp;These employees must provide a negative COVID-19 test every seven days before they may enter the employer&rsquo;s facility.&nbsp;The ETS requires that tests cannot be both self-administered and self-read by the employee.&nbsp;That is, an employee may not purchase an over-the-counter COVID-19 test, perform it on herself, and then provide the results to the employer.&nbsp;An employee may provide a result from a third party (such as a drive thru or community-testing clinic) including a health care provider.&nbsp;Alternatively, the employer may conduct an approved OTC COVID-19 test on-site prior to entry.&nbsp;An approved OTC rapid test kit may be used if a manager observes the employee open the approved kit, perform the test (usually a nasal swab), and the manager observes the results.&nbsp;Employees who do not provide proof of a negative test must be kept off the premises until a negative test is provided.</p> <p>Employees who do not report to a physical workplace at least once every seven days do not need to be tested, but they must provide a negative COVID-19 test before entering the workplace.&nbsp;The test result must be within the previous seven days.</p> <p>Employers are not required to pay for any costs associated with testing, subject to a policy, collective bargaining agreement, or other law.&nbsp;However, some states mandate that employers not pass on costs for medical requirements on to employees.&nbsp;In addition, the ETS has sparked debate about whether insurance companies will cover the cost of employer-mandated testing because the Families First Coronavirus Response Act requires health plans to pay for COVID-19 testing that is deemed &ldquo;medically necessary.&rdquo;&nbsp;Thus, insurance companies will likely consider ETS testing to be a &ldquo;screening&rdquo; that is not medically necessary and thereby avoid covering the cost for the ETS tests.&nbsp;&nbsp; As a result, it is critical that employers and all non-fully-vaccinated employees understand whether an employee&rsquo;s workplace is covered by a state law that forbids an employer from passing on this cost.&nbsp;Employers should also identify locations of low or no-cost COVID-19 testing sites, to ascertain how much out-of-pocket cost may be imposed on the employee.</p> <p><b>Face Covering Requirement</b></p> <p>While the vaccine or testing requirements have dominated the ETS headlines, the ETS also includes a face covering requirement which goes into effect on December 5, 2021.&nbsp;All non-fully-vaccinated employees must wear a face covering while indoors or in a vehicle, except: when the employee is alone in a room with floor to ceiling walls and a closed door; for a limited time while eating or drinking or for security checks; while wearing a respirator or other face mask (such as surgical mask); or when wearing a mask is infeasible or creates a greater hazard than wearing a mask.</p> <p>Under the ETS, face coverings must include at least two layers of fabric, wrap around the ears or head with elastic, and fit snugly around the nose and mouth.&nbsp;Gaiters are not excluded by the ETS, but they must have at least two layers of fabric, fit snugly, and have no large gaps on the sides. The ETS neither requires nor prohibits an employer from paying for face coverings.</p> <p><b>Recordkeeping Requirement</b></p> <p>Employers must maintain a record of each employee&rsquo;s vaccination status, a copy of each employee&rsquo;s proof of vaccination, and/or copies of unvaccinated employees&rsquo; COVID-19 test results for the duration of the ETS.&nbsp;These records must be kept separate from personnel files and be treated as confidential medical records.&nbsp;The employer must also maintain a separate roster of all employee vaccination statuses.</p> <p>While employers are not required to conduct investigations or take steps to verify medical information, any employer who knowingly accepts false medical information is subject to civil or criminal penalties under OSHA&rsquo;s recordkeeping rules.</p> <p><b>Enforcement</b></p> <p>Generally, OSHA enforces its standards by assessing penalties.&nbsp;While states may operate their own Occupational Safety and Health Plans, those states are required to adopt maximum penalty levels that are at least as effective as the penalty levels of the Federal OSHA.&nbsp;OSHA&rsquo;s maximum penalty amounts are:</p> <div align="center"><br /> <table border="1" cellspacing="0" cellpadding="0"> <tbody> <tr> <td valign="top"> <p><b>Type of Violation</b></p> </td> <td valign="top"> <p><b>Penalty</b></p> </td> </tr> <tr> <td> <p>Serious</p> <p>Other-Than-Serious</p> <p>Posting Requirements</p> </td> <td> <p>$13,653 per violation</p> </td> </tr> <tr> <td> <p>Failure to Abate</p> </td> <td> <p><br /> $13,653 per day beyond the abatement date</p> </td> </tr> <tr> <td> <p>Willful or Repeated</p> </td> <td> <p>$136,532 per violation</p> </td> </tr> </tbody> </table> </div> <p><br /> While there are pending efforts, including proposed legislation in some states, to increase the penalty maximums by more than 15%, even the current penalty levels will likely deter employers from attempts to sidestep the ETS, in light of the sheer volume of potential penalty exposure based on the number of non-fully-vaccinated employees who may be considered separate and repeated violations at any given company.&nbsp;As a practical matter, however, OSHA may lack the capacity to aggressively enforce the ETS given that the standard is expected to apply to more than 100,000 companies.&nbsp;Thus, OSHA will likely conserve its resources to enforce ETS-related penalties on larger, big-name, companies that may serve as cautionary tales in the news.</p> <p><b>Final Takeaways </b></p> <p>Time is of the essence. Employers and practitioners should take the following steps <i>now,</i> to ensure ETS compliance:</p> <p>►provide employees with ample notice of the face covering mandate which goes into effect on December 5, 2021, and the January 4, 2022, vaccination deadline.&nbsp;Remember, employees who are not two weeks past their final vaccine dose are not &ldquo;fully vaccinated&rdquo; and are subject to weekly testing after January 4, 2022.&nbsp;<b>For recipients of the Moderna and Pfizer vaccines, this means the first dose should be administered by November 23, 2021, to avoid any weekly testing;</b></p> <p>►determine what will be included and administered as part of the employer&rsquo;s testing program, which should be included in the employer&rsquo;s written policy.&nbsp;When developing its testing program policy, an employer should consider whether testing will be provided at the employer&rsquo;s premises, whether employees will be required to independently schedule tests, and whether employees may bring an OTC test with them to be administered at work;</p> <p>►prepare a written policy that requires either vaccination or a weekly testing option, and distribute the policy to employees;</p> <p>►determine how employees will be required to provide proof of vaccination or negative tests (e.g., an online portal, submit to HR or a specific manager, via e-mail);</p> <p>►collect vaccination records from fully and partially vaccinated employees;</p> <p>►consult with local health officials, hospitals, or clinics about hosting on-site vaccination events or conducting on-site COVID-19 testing; and</p> <p>►prepare for receiving and processing religious and medical exemption requests and train front-line managers on how to identify and handle such requests. Exemption requests should be treated as requests for reasonable accommodation under Title VII or the Americans with Disabilities Act. The EEOC advises that an employer may deny a request for religious accommodation where the sincerity of the employees&rsquo; belief is questionable, as indicated by inconsistent past conduct, timing of the request or other factors. Employers considering denying religious requests must exercise extreme caution.</p> <p>The ETS may be modified after the notice-and-comment period, or by legal challenge.&nbsp;Baker Sterchi attorneys will continue to monitor these developments, and will update this blog on a revolving basis with the most up-to-date information available.</p> Seekers Using Vaccine Mandates to Stand Out from the Crowd: Potential Pitfalls for Employers Nov 2021Employment & Labor Law Blog<p>Whether due to a government mandate or a self-imposed work rule, every day more employers are requiring employees to be vaccinated against Covid-19.</p> <p>Employers are eager to attract vaccinated employees to open positions. Employers have analyzed the costs they may save by hiring vaccinated workers. Vaccinated employees are less likely to contract Covid-19 or suffer serious health consequences from the virus, and they are therefore less likely to miss time from work. Employers will also save time and administrative costs associated with processing accommodation requests, paying for testing, or providing time off to employees awaiting tests or vaccines. Employers with government contracts are already required to ensure their workers are vaccinated. For employers with 100 or more employees, new OSHA rules will require their entire work force to be vaccinated against Covid-19 as well, by January 4th. (Alternatively, an employee may undergo weekly COVID testing.)</p> <p>Between now and then, vaccinated employees will be in high demand. Some job applicants, sensing employers&rsquo; eagerness for vaccinated employees, have begun including their vaccine status on resumes, job applications, and social media in order to stand out from the crowd. However, regardless of how attractive vaccinated employees may be, consideration of a job applicant&rsquo;s vaccine status in hiring decisions may create pitfalls for employers.</p> <p>Before trying to cut through the red tape of employee vaccinations, employers should be aware that federal and state vaccine mandates require employers to carefully evaluate employee requests for medical or religious accommodations. When an applicant <i>does not</i> list his vaccine status, an employer cannot and should not try to guess why that is. It may be that the applicant has a disability or religious belief that prevents him from being vaccinated. Consideration of vaccine status in hiring decisions may run afoul of the Americans with Disabilities Act or religious protections under Title VII.</p> <p><b>Disability Exemptions</b></p> <p>The Americans with Disabilities Act prohibits discrimination against a qualified individual on the basis of disability, including &ldquo;using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.&rdquo; 42 U.S.C. &sect; 12112(b).</p> <p>Persons with certain disabilities may not be able to be vaccinated. Thus, they would tend to be screened out or disfavored when employers consider vaccine status in hiring decisions. For example, two job applicants are considered for a position. One lists her vaccine status on her resume and the other does not. The hiring manager may want to hire the vaccinated worker because he does not want to run the risk of the &ldquo;headache&rdquo; of dealing with weekly testing or other accommodation. But if the applicant has not been vaccinated due to a disability, she may have a claim for disparate treatment.</p> <p>Furthermore, disparate impact claims are also cognizable under the ADA. To state a claim, a plaintiff must show a &ldquo;facially-neutral&rdquo; policy or practice, a statistically significant disparity, and a causal connection. Consideration of applicants&rsquo; vaccine status probably does not facially discriminate against people with disabilities. However, giving a preference to people who have included their vaccine status could cause people with disabilities that prevent vaccination to be disfavored in the hiring process. If qualified individuals with a disability apply and are rejected at statistically significant rates because of consideration of vaccine status, they may be able to state a claim that the hiring process violates the ADA.</p> <p>The ADA also contains specific provisions for when employers may inquire about medical information. Generally, medical information should not be obtained by the employer until after a conditional job offer is made. Then medical information may be obtained 1) to begin the reasonable accommodation interactive process; or 2) when medical information is obtained from all applicants. Therefore, employers should avoid obtaining or receiving medical information from applicants until <i>after</i> a conditional offer is made.&nbsp;</p> <p><b>Religious Exemptions</b></p> <p>Government vaccine mandates also require accommodation of people whose sincerely held religious beliefs prevent vaccination. Title VII recognizes both disparate treatment and disparate impact claims. The EEOC has tended to interpret &ldquo;sincerely held religious beliefs&rdquo; broadly. Courts have become increasingly willing to evaluate whether a religious belief is sincerely held. However, for employers this is a minefield and should generally be avoided. Inquiries into whether a belief is &ldquo;sincerely held&rdquo; often devolve into claims of harassment.</p> <p><b>Accommodations</b></p> <p>An individual who has not been vaccinated, but is otherwise qualified for the position, can often be reasonably accommodated under the ADA or Title VII. Experience over the last two years has shown that unvaccinated employees can be reasonably accommodated. Reasonable accommodations may include weekly testing (as in the newly issued OSHA ETS), mask requirements, social distancing, installing plexiglass barriers, modified work schedules, or remote work.</p> <p><b>Best Practices</b></p> <p>Under the new OSHA standard and prior federal mandates for government contractors, by early 2022 most employees will be required to be vaccinated or submit weekly negative Covid-19 tests. But this does not relieve employers of the duty to accommodate disabilities or religious beliefs.</p> <p>In order to avoid discrimination claims, employers should:</p> <ul type="disc"> <li>Include in job postings whether compliance with the OSHA ETS or other federal or state mandate is a job requirement, subject to applicable legal exemptions.</li> <li>Include in job postings that applicants should not include their vaccination status on resumes or job applications and that vaccination status will not be considered in hiring decisions.</li> <li>A blind application process &ndash; where photographs, demographic, and other personal data is redacted &ndash; is often the best way to remove bias from hiring decisions. If an employee offers vaccination information, it should be redacted.</li> <li>Wait until after a conditional offer is made to inquire into accommodations for disabilities or religious beliefs.</li> <li>Always store medical information in a separate file and treat it as confidential.</li> </ul> Didn't Agree to That! Court Holds No Arbitration without Offer and Acceptance. Oct 2021Employment & Labor Law Blog<p>The Missouri Court of Appeals recently affirmed a trial court&rsquo;s holding that a mere &ldquo;Acknowledgement of Receipt,&rdquo; attached to an Alternative Dispute Resolution Policy given to the employee upon hire, does not constitute an &ldquo;offer&rdquo; that can bind the employee to arbitrate future employment claims.</p> <p>In <i>Trunnel v. Missouri Higher Education Loan Authority</i>, the Court of Appeals <a href="">reasoned</a> that MOHELA&rsquo;s ADR Policy did not create an agreement to arbitrate because MOHELA never extended an offer to be bound by the arbitration process that could be accepted by the employee. When MOHELA hired Trunnel, Trunnel was given two documents, one titled &ldquo;MOHELA Policy Regarding Mandatory Alternative Dispute Resolution/ADR Process&rdquo; (&ldquo;ADR Policy&rdquo;) and the other a one-page document titled &ldquo;Important Acknowledgement of Receipt of MOHELA Mandatory Policy on Dispute Resolution/ADR Process&rdquo;). Trunnel purportedly signed the Acknowledgment of Receipt, but not the ADR Process document itself.</p> <p>In pertinent part, the &ldquo;Acknowledgment of Receipt&rdquo; stated that employees &ldquo;are bound by this Policy even if they do not sign this Acknowledgement form.&rdquo; At the bottom of the form, the signature line states &ldquo;I ACKNOWLEDGE RECEIPT OF THE MANDATORY ALTERNATIVE DISPUTE RESOLUTION/ADR PROCESS POLICY.&rdquo; Trunnel subsequently sued for constructive discharge based on race, sex, and disability and retaliation. MOHELA moved to compel arbitration.</p> <p>The trial court relied on <i>Jackson v. Higher Education Loan Authority of Missouri</i>, 497 S.W.3d 283 (Mo. App. E.D. 2016) to deny MOHELA&rsquo;s motion to compel arbitration. In <i>Jackson</i>, the district court examined the exact same policy at issue, and determined that the arbitration policy signed by employees of MOHELA did not constitute a valid offer that an employee could accept. Rather than presenting an offer that could be accepted or rejected, MOHELA merely published the policy to its employees and required a signature acknowledging receipt of the policy.</p> <p>Following the reasoning of <i>Jackson</i>, the trial court further found that Trunnel merely acknowledged receipt of the published ADR Policy, which was not an offer, and therefore she did not agree to be bound by the terms of the ADR Policy. MOHELA&rsquo;s one argument on appeal was that <i>Jackson </i>was wrongly decided. It argued that the Acknowledgment of Receipt document Trunnel signed contained clear language that a binding agreement was being offered.&nbsp; The Court of Appeals noted that it was persuaded by the <i>Jackson</i> decision and concluded the ADR Policy and Acknowledgement of Receipt documents were merely a publication to employee, as there was no consequence for the failure to sign and nothing was presented to the employee for her acceptance. Further, while not dispositive, prominent use of the word &ldquo;policy&rdquo; was but one factor relied on by the <i>Jackson </i>Court to reach their conclusion, and in <i>Trunnel</i> MOHELA&rsquo;s use of the word &ldquo;policy&rdquo; in lieu of &ldquo;agreement&rdquo; or &ldquo;contract&rdquo; again undermined its arguments that it constituted a contract.</p> <p>Additionally, the Acknowledgement of Receipt form contained no explicit language manifesting an employee&rsquo;s understanding that they were entering into, and bound by, the ADR Policy. The acknowledgment form simply required the employee to confirm they received a copy of the process itself, not that they assented to the terms therein. The Court discussed the Eighth Circuit case <i>Shockley v. PrimeLending</i> (analyzed in our 2019 Blog post: <a href="/?t=40&amp;an=96663&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Arbitration Agreements 101: they require - you guessed it - agreement.</a>), and found that &ldquo;an acknowledgement of a review of offered terms alone does not evince an intent to accept those terms.&rdquo;</p> <p>Finally, MOHELA attempted to assert that an offer and acceptance existed with an affidavit from MOHELA&rsquo;s Assistant Director of Human Resources, stating that Trunnel&rsquo;s employment was contingent on signing the Acknowledgement. But the Court afforded little weight to the Affidavit, which contradicted the plain language of the Acknowledgement of Receipt, reasoning that if a signature on the Acknowledgement of Receipt was a condition of employment, there was no need to advise employees that their failure to sign would have no bearing on the applicability of the ADR process.</p> <p>The decision in <i>Trunnel </i>provides important guidance to employers drafting Arbitration Agreements. First, the employee&rsquo;s signature page must clearly state the employee&rsquo;s intention to be bound by the terms of the <i>actual agreement</i> they are signing, rather than just acknowledging receipt of a company policy.</p> <p>Second, employee handbooks generally do not create contractual rights. Arbitration agreements should be executed separately from employee handbooks, lest an employer unwarily create contractual rights it did not intend. Acknowledgement of receipt on an employee handbook will almost never be sufficient to bind an employee to an arbitration provision contained therein.</p> <p>Third, while the Courts have regularly discussed adequate consideration in arbitration agreements (<i>See </i><a href="/?t=40&amp;an=116879&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Promises, Promises in Arbitration of Employment Disputes </a>&nbsp;and&nbsp; <a href="/?t=40&amp;an=114268&amp;format=xml&amp;stylesheet=blog&amp;p=5258">Missouri Court of Appeals holds an employer may not reserve the right to litigate claims against an employee in court while simultaneously restricting the employee to arbitrate her employment claims.</a>), employers must remember that an arbitration agreement has to contain <b><i>each </i></b>element of a contract including an offer, acceptance, a meeting of the minds, and consideration.&nbsp;</p> <p>Fourth, the Agreement must make it clear to the employee that the employment relationship (or continuation of employment) is contingent upon signing the Agreement. In addition to not constituting an offer or acceptance, a promise is also illusory where signing or not signing the document is of no legal effect.</p> <p>To avoid the pitfalls MOHELA encountered in <i>Jackson</i> and <i>Trunnel</i>, ensure that the signature page and all related documents clearly indicate that the employee agrees to be bound by the provisions of the arbitration agreement. As always, employers who may be considering modifying their arbitration agreements should pay close attention to recent cases discussing the limits of an employer&rsquo;s right to do so. (<i>See </i><a href="/?t=40&amp;an=42007&amp;format=xml&amp;stylesheet=blog&amp;p=5258">The Eastern District of Missouri continues the trend of invalidating employee-employer arbitration agreements</a>).</p> to Work Post-COVID – Handle with Care, Employers Sep 2021Employment & Labor Law Blog<p>COVID-19 created unprecedented situations in every type of job, industry, and profession, including the legal field.&nbsp; Change, evolution, and adaptation became commonplace as everyone learned how to navigate the process of operating from both work and home. Essentially, the COVID-19 pandemic turned our working lives upside down for the better part of two years.</p> <p>As more people become fully vaccinated, many are eagerly anticipating a return to &ldquo;normalcy.&rdquo;&nbsp; For most, that includes returning to the office (whether full-time, part-time, or by remote or virtual means). But more than 100 million Americans have worked remotely (at least part-time) since the beginning of the pandemic. And many of these employees hope to work remotely permanently. However, for employers intending for their employees to return to the office, potential pitfalls await.</p> <p>Employees who have learned to enjoy the work-from-home model see a variety of benefits, including:</p> <ol start="1" type="1"> <li>Not having to commute to work;</li> <li>No required dress code (unless you are on a video conferencing call, such as with a Court);</li> <li>The ability to take care of work/projects at home while on breaks from office work;</li> <li>The ability to stay home with a sick family member;</li> <li>The ability to more easily schedule personal appointments around work.&nbsp;</li> </ol> <p>But there are pitfalls to working from home, which include:</p> <ol start="1" type="1"> <li>Potentially having to purchase additional office equipment to effectively do work (e.g., printer/scanners, computer monitor);</li> <li>Taking extra precautions to keep client information safe and confidential;</li> <li>Blurring the lines between being present at work and being present at home;</li> <li>Losing some collaboration, communication, and visibility with your colleagues/team/management;</li> <li>More distractions at home to sidetrack you from getting your &ldquo;office&rdquo; work done.</li> </ol> <p>Recent studies indicate that some categories of employees are less eager than others to return to the office. One such survey [<a href="">Who Wants To Return To The Office? | FiveThirtyEight</a>] indicates that women and minorities are less eager to return to in-person work, while white men are the group most eager to return to the office. In many families, women bear the load of being both the primary caregiver, as well as a full-time employee, and providing options to work from home provides potentially more time to devote to both. Another factor that may be at play is an office culture in some workplaces that has given white men a higher comfort level than other groups. Whether it&rsquo;s &ldquo;water cooler talk,&rdquo; &ldquo;the good ol&rsquo; boys club,&rdquo; or the standing Friday afternoon round of golf, certain employees can feel excluded and alienated in the workplace.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Employers should take note, as return-to-work and remote work policies may someday serve as the basis for disparate impact claims under Title VII or Equal Pay Act claims. If women and minorities are more likely to opt to work from home (or risk termination or quit when return to the office is mandated), then employers must carefully implement policies or practices to avoid violating the law.&nbsp; These policies or practices should be implemented both to comply with the law, and to promote the well-being and job satisfaction of all of their employees.</p> <p><b>Disparate Impact under Title VII</b></p> <p>Disparate impact claims under Title VII can be tricky for employers to defend because there is no intent requirement. To state a claim of disparate impact, a plaintiff must allege a facially neutral policy that causes statistically significant disparities in employment between a favored class and a disfavored class. Here, women or minorities may be able state a claim for disparate impact where a remote work policy caused them to be disfavored.</p> <p>For example, a mandatory return to the office under threat of termination may cause a disparate impact if it causes women and minorities to quit in much higher numbers than white workers or men. The policy itself does not discriminate based on race or sex, so it is facially neutral. However, if it falls more harshly on a particular group, it may support a claim.</p> <p>Disparate impact claims are analyzed under a burden-shifting scheme similar to the familiar <i>McDonnell Douglass</i> framework. If the plaintiff makes a prima facie case, then the burden shifts to the employer to demonstrate that the policy serves a &ldquo;legitimate, non-discriminatory business purpose.&rdquo; Then the burden shifts back to the plaintiff to show that the articulated reason is pretextual.</p> <p>Some employers may have difficulty proving a legitimate business justification for ordering employees to return to the office. Many employers have seen that productivity has remained steady or in some cases increased as more employees work from home. In some cases, it may be more expensive for employers to have workers in the office than working remotely. Therefore, employers seeking company-wide return to work should carefully consider the reasons for doing so.</p> <p><b>Minimizing Impacts on Remote Workers</b></p> <p>A major potential pitfall will be in promotions. Employers <i>must</i> be mindful of the subjective and objective criteria managers employ in determining promotions. Traditional factors such as &ldquo;face time&rdquo; with the boss, being seen in the office early in the morning and late at night, or overall &ldquo;attitude,&rdquo; &ldquo;personality,&rdquo; or &ldquo;fit,&rdquo; may disfavor remote workers. Where these factors would tend to disfavor remote workers, they may work to cause statistical disparities between male and female or white and minority workers.</p> <p><b>Equal Pay Act</b></p> <p>The Equal Pay Act requires that employees of opposite sexes be paid the same for &ldquo;equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.&rdquo;). In the absence of direct evidence of discriminatory intent, the court applies the familiar <i>McDonnell Douglas</i> burden-shifting framework. The plaintiff puts forth a prima facie case, and the employer must show that there exists a legitimate nondiscriminatory factor on which it based the wages paid. Legitimate factors include seniority systems, merit systems, piecework pay rates, for example. The burden then shifts back to the plaintiff to come forward with evidence that the proffered reason was pretextual.</p> <p>Some employers may feel inclined to pay remote workers less than in-office workers. And studies indicate that some workers would be willing to take a pay cut to work from home. However, if disproportionate numbers of women intend to continue working remotely, then pay differentials could potentially support an Equal Pay Act claim. It is not a complete defense that there are also some men who work remotely at lower salaries. Likewise, it is an open question whether working from home versus working in the office would be a legitimate nondiscriminatory factor supporting pay disparities. However, if an employer saves money by having employees work remotely, it will be hard to avail themselves of that defense.</p> <p><b>Planning and Recordkeeping Can Help Avoid Liability</b></p> <p>In crafting a return-to-work policy that works for everyone, for purposes of potential employment-related claims, employers should consider:</p> <ul> <li>Whether an across-the-board return to work policy is necessary or desirable.</li> <li>If individual approval of remote work is practical. A policy should be based on specific, objective (and recorded) criteria such as seniority, performance evaluations, disciplinary history, and productivity. A copy of the determination should be placed in the employee&rsquo;s file.</li> <li>Whether to re-evaluate promotion and job performance criteria, to focus on objective work-related factors, while weeding out unintentionally discriminatory factors (such as face time with the boss, early arrival at work, etc.).</li> <li>Whether remote work may be a reasonable accommodation for disabled workers.</li> <li>How to ensure that remote workers have equal access to career-advancing training, mentorship, and special projects.</li> </ul> <p>There is never a bad time to consider whether office culture can be made more inclusive. As more people return to the office, it is important to ask whether there are employees who are reluctant to return, and why.&nbsp;</p>'re Baaaaccckkkk: New COVID-19 Guidelines for Your Vaxed and Vexed Employees Aug 2021Employment & Labor Law Blog<p>In November 2020, many Americans breathed a sigh of relief, as news broke that an effective and safe vaccine had been developed against COVID-19. As vaccines from Pfizer, Moderna, and Johnson &amp; Johnson began to roll out in early 2021, numerous citizens began to roll up their sleeves for protection against the virus.&nbsp; In May 2021, many COVID-19 related restrictions were abandoned in the continental U.S. (including the dreaded indoor mask requirement) after the CDC advised that vaccinated individuals did not need to wear masks while indoors.</p> <p>Fast forward to August 2021, and the unwelcome spread of the highly contagious Delta variant, and we seem to be creeping back to mandatory mask wearing in many states, as the CDC recently recommended that fully vaccinated individuals wear masks in public indoor settings in areas of &ldquo;substantial or high transmission.&rdquo;&nbsp; This recommendation comes as no surprise with the Delta variant on the rise, coupled with the fact that vaccinated individuals can still become sick from the virus, as well as transmit the virus.</p> <p>So what is an employer to do with these new CDC guidelines?&nbsp; While the new guidelines do not define &ldquo;public indoor settings,&rdquo; such settings were previously differentiated by the CDC from household settings.&nbsp; Hence, it is safe to say these new guidelines apply to businesses outside of individuals&rsquo; homes.&nbsp; Because it is assumed that these guidelines pertain to companies, employers and businesses should consult with the CDC&rsquo;s COVID-19 Integrated County View website ( to determine if the areas in which they do business are COVID-19 hotspots with substantial or high transmission.&nbsp; This website is updated by the CDC daily, reflecting locations that have substantial transmission or high transmission over a 7-day period.</p> While CDC guidelines are not considered &ldquo;law,&rdquo; OSHA and the courts could interpret CDC guidelines to be a standard of care.&nbsp; Accordingly, in the event an employer does not abide by the new CDC guidelines, OSHA could cite an employer for not abiding by the guidelines, on the grounds that the employer breached the OSHA &ldquo;general duty clause.&rdquo;&nbsp; In addition, individuals who contract the virus while visiting non-CDC abiding businesses may sue, claiming that the business was negligent by not abiding by the respective restrictions.&nbsp; Although CDC guidelines are just that &ndash; guidelines &ndash; employers and businesses should therefore heed the CDC&rsquo;s guidance&hellip; to the possible dismay of your some of your vaxed and vexed employees.&nbsp;&nbsp;