News & Analysis

Employee benefit considerations from ARPA: all things COBRA

The American Rescue Plan Act of 2021 (ARPA) became law in March. The $1.9 trillion stimulus package contains a mix of benefits, tax credits, programs, and subsidies in response to the continuing COVID-19 pandemic. Among the ARPA's provisions are several related to COBRA. Let's take a closer look.

Tips for correctly paying people who work from home

It's hard to believe many of us have been working from home because of the COVID-19 outbreak for more than a year. In addition, many teleworkers have been operating on flexible schedules. The consistent question for employers is: How do we pay nonexempt employees working flexible schedules from home? Here is the answer (at least for now).

Hospital's right to remove doctor insufficient to show employment relationship

An African-American doctor's race discrimination claims against a hospital failed because he couldn't prove an employment relationship with the hospital. He had entered into a contract with a separate entity in which he agreed to provide medical services at the hospital. Under the hospital's agreement with the other entity, it had the right to request a physician's removal, a right it ultimately exercised. The U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) ruled the evidence wasn't enough to make the hospital part of an integrated enterprise or a joint employer for liability purposes. Be warned, however, certain factors can tip the scale in the other direction and result in liability.

Dodging Hauser GA: Employee evades broad restrictive covenants

Case law interpreting Georgia's Restrictive Covenants Act (RCA) continues to make its way through the courts, and the message is consistent: Despite the RCA's proclamation that restrictive covenants are in favor of public policy, employers that don't adhere to the statute's narrow standards risk enforcement, even with its blue-penciling prerogatives. In the following case, the court considered state and federal RCA decisions to date and ultimately ruled to greatly limit the company's ability to enforce customer nonsolicitation and employee nonrecruitment covenants in an agreement form it used for all employees across the country.

Good news for employers: 5th Circuit changes approach to FLSA collective actions

The 5th Circuit recently assessed how rigorously and promptly a district court should probe whether potential members of a Fair Labor Standards Act (FLSA) collective action are "similarly situated" and thus entitled to court-approved notice of the case. In doing so, the court greatly changed the landscape for employers facing FLSA collective action litigation.

Florida passes law protecting businesses from COVID-19 lawsuits

On March 29, 2021, Florida Governor Ron DeSantis signed a new state law protecting businesses and healthcare entities from personal injury and wrongful death lawsuits triggered by COVID-19. The law creates Section 768.38, Florida Statutes, which went into effect immediately. It adds new legal hurdles for any individuals who want to sue over coronavirus-related injuries.

5th Circuit rejects disability discrimination claim based on alcoholism

An employer wasn't liable to a former employee who alleged he was terminated because of a disability, his alcoholism, the 5th Circuit recently decided. Although the appeals court didn't directly address whether alcoholism qualified as a protected disability when it upheld a New Orleans-based district court ruling, the opinion offers guidance on how employers can avoid liability when discharging employees.

Going back to the office? Experts have some safety, comfort advice

The COVID-19 restrictions that have kept many people in their home offices for more than a year are starting to ease, and more employers are bringing people back to the office at least part-time. But the return shouldn't be as simple as just throwing open the doors. Social distancing, cleaning protocols, and air quality concerns need to be considered, health and office design experts say.

Unions looking to Biden administration for new energy

Union leaders have seen membership numbers dwindle for decades. Figures from the U.S. Bureau of Labor Statistics (BLS) released in January show the percent of wage and salary workers who were members of unions—the union membership rate—was 10.8% in 2020. Compare that statistic to the union membership rate in 1983, the first year for which comparable data are available, when the number was 20.1%. Despite the numbers, union proponents tout possible new signs of vitality for organized labor.

Cutting-Edge HR

Research shows higher price for hiring mistakes. Research from staffing firm Robert Half shows the cost of a bad hire has increased from a year ago. Seventy-six percent of senior manag-ers surveyed for the research, which was announced in March, admitted to recruiting the wrong candidate for a role, and 64% said the negative impact was more severe than it was a year ago. Senior managers said it took 10 weeks, on average, to realize the person was a poor match and to let the employee go. Then, it took an additional six weeks to restaff the role. That’s a total of 16 weeks—four months—of time squandered on a recruiting blunder. According to the research, which looked at 28 major metropolitan U.S. cities, some employers take even more time to cor-rect a hiring mistake: Seattle, 26 weeks; Minneapolis, 25 weeks; Los Angeles, 23 weeks; Boston, 20 weeks; Dallas, Philadelphia, and San Francisco, 19 weeks; Miami and New York, 18 weeks; and Cleveland, Denver, and San Diego, 17 weeks.