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Coronavirus/COVID-19

COVID-19 and Unions

COVID-19 and Unions

By Richard H. Wessels of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Tuesday, April 14, 2020.

COVID-19 is about the only subject being discussed at Wessels Sherman these days. Of course, there are some exceptions, but COVID-19 is the 800-pound gorilla! While most legal commentaries on COVID-19 focus on minutiae of legislation and regulations, for this commentary we are going to focus on practical information and solutions. And, we will do so in a checklist format with resources of practical use.

  1. Good format for fostering positive communications with your union while at the same time giving you a good defense against a unilateral change ULP. Click here.
  2. Hazard pay commentary with detailed surveys. Click here.
  3. Typical communications from unions about COVID-19. Click here
  4. Template for contract extension agreement because negotiations are delayed by COVID-19. Click here.
  5. Up to the minute hazard pay survey. Click here.
  6. Resource and union steward guides put out by various unions (SEIU-1021; AFL-CIO; UE)
  7. NLRB’s memorandum on unilateral change. Click here.
  8. CARES Act and union neutrality. The CARES Act contains a hidden provision that came as a surprise to most in the business community. This provision mandates union neutrality. An employer obtaining a loan under the CARES Act must certify that the Company will remain “neutral in any union organizing effort for the term of the loan”. Before you get scared, this applies only to mid-sized companies which are defined as having 500 to 10,000 employees. A neutrality commitment is devastating if a Company wants to remain union free. There are no details in the Act itself as to precisely what union neutrality means. We have seen union neutrality agreements in the past, particularly where major companies have included such a commitment in collective bargaining agreements. Whatever the details might be, such a commitment would presumably include a mandate that the employer gives up the right of free speech to explain to employees the disadvantages a union. A Company giving this sort of a commitment will lose elections. It’s that simple. Worse yet, depending upon how the details come out, a Company may give up a right to a secret ballot election and be required to accept a union with a card check. Here is a link to the applicable provisions in the CARES Act. Click here.

Questions? Contact attorney Richard Wessels in our St. Charles, IL office at (630) 377-1554 or by email at riwessels@wesselssherman.com.

Related Posts: Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work, Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!, Coronavirus Layoffs Result In Class Action WARN Act Lawsuit, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

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Coronavirus/COVID-19

Some Minnesota Businesses Allowed to Resume Operations

Some Minnesota Businesses Allowed to Resume Operations

By Attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Wednesday, May 27, 2020.

Governor Walz issued Executive Order 20-56 authorizing some businesses to reopen provided that they comply with OSHA, MDH, and CDC guidelines. The Order went into effect on May 17, 2020, at 11:59 p.m. and remains in effect until May 31, 2020.

Reopened non-critical business must establish and implement a COVID-19 Preparedness Plan that provides for the implementation of Minnesota OSHA standards, MDH guidelines, and CDC guidelines. Each plan must address the following:

  • Require work from home whenever possible;
  • Ensure that sick workers stay home;
  • Establish social distancing policies and procedures;
  • Establish hygiene and source control policies for workers; and
  • Establish cleaning, disinfection, and ventilation protocols for areas within the workplace.

Beginning on June 1, 2020, bars and restaurants may begin serving customers outdoors only as long as customers maintain at least six feet of social distance and the number of customers does not exceed 50. Barbers, salons, tattoo shops, and the like may operate at partial capacity as long as patrons wear masks, schedule their appointments ahead of time, and maintain six feet of social distance.

Essential businesses under current CISA guidelines may continue to operate. However, whether the business is deemed critical or not, any employees who are able to work from home must continue to work from home.

Questions? Contact Christopher Jison in our Minnesota office at (262)746-1700 or by email at chjison@wesselssherman.com

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Employee Return to Work Under Covid-19: What Should Employers Do?, OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, May 7, 2020.

We now know the basic outline of how the Illinois Department of Employment Security (IDES) will process independent contractor unemployment insurance claims.

The IDES issued a press release on May 5, 2020 about 1099 workers who have lost work due to COVID-19.

The IDES press release states: “Workers who believe they may be eligible for new federal benefits under the Pandemic Unemployment Assistance (PUA) program, must first apply for regular unemployment insurance before applying for benefits under PUA when a new application portal opens on May 11, 2020 via the IDES website.”

IDES Notices of Claims From 1099 Workers Will Be Arriving!: This means that Illinois companies using independent contractors should expect to begin receiving IDES Notices of Claims for these unemployment insurance benefit claims that are now being filed by 1099 workers!

Be sure to timely respond to the IDES when your company receives a Notice of Claim filed by a 1099 worker (independent contractor). Make it clear to the IDES that the claimant is, in fact, an independent contractor and not your employee. Respond with a very detailed letter in support of independent contractor status. Keep your record strong with the IDES in defending independent contractor status.

Several clients have already called to tell me that they have received a Notice of Claim in the mail which already is “not timely.” In other words, the Notice of Claim has a reply due date which has already passed. The client wants to know if it is a waste of their time to protest the Notice of Claim since the reply due date has already come and gone. My advice to the client is to absolutely protest the Notice of Claim!, even though technically it is not timely.

I instruct the client to explain in the protest that the Notice of Claim arrived on [fill in date of arrival] and the company opened its mail immediately on that day and discovered the reply due date had come and gone. I tell the client to state there are witnesses in the company who are willing to testify under oath that the Notice of Claim from the unemployment insurance agency arrived on a specific date and was opened immediately.

If the envelope in which the Notice of Claim arrived has a postmark, I tell the company to attach a copy of the envelope as an exhibit to the protest.

Independent Contractors Have Joined The Ranks of Those Applying for Unemployment Insurance Benefits: Federal and IDES laws have historically shut out independent contractors from unemployment insurance benefits-until the COVID-19 crisis hit the U.S. economy. This COVID-19 pandemic, almost overnight, wrecked work opportunities for many of those who have operated as 1099 workers.

To Be Eligible For PUA, Independent Contractor Must First Be Denied Regular Unemployment Insurance Benefits: If a 1099 worker (independent contractor) receives an eligibility determination of $0 after applying for regular unemployment insurance benefits with the IDES, this shows the IDES views the 1099 worker to be a “non-employee.” Then the 1099 worker can protest that decision by providing to the IDES verification of wages earned, or the 1099 worker can submit a claim to the IDES for PUA benefits.

Unemployment insurance claimants who have already applied for and been denied regular unemployment benefits by the IDES can submit a claim to the IDES through the new PUA portal when it opens on the IDES website on May 11, 2020. Receiving a denial for regular unemployment benefits is a mandatory first step in determining eligibility for PUA under the IDES system.

What is Pandemic Unemployment Assistance (PUA) And How Long Does It Last?: PUA provides 100% federally-funded unemployment benefits for independent contractors who are unemployed for specified COVID-19-related reasons. These 1099 unemployment insurance claimants must not be eligible for the IDES’s regular unemployment insurance program, the extended benefit (EB) program under Illinois law, or the Pandemic Emergency Unemployment Compensation program (PEUC). Up to 39 weeks’ worth of unemployment insurance benefits are potentially available under the program for COVID-19-related unemployment claims.

PUA claims by independent contractors will be backdated by the IDES to the 1099 claimant’s first week of unemployment, but no earlier than February 2, 2020, and will continue for as long as the independent contractor remains out of work as a result of COVID-19, but no later than the week ending December 26, 2020.

PUA will be available to independent contractors who are unable to work or telework if the 1099 worker certifies that he or she:

  • is diagnosed with COVID-19 or experienced symptoms or is seeking a diagnosis,
  • has a member of his or her household that has been diagnosed with COVID-19,
  • is providing care to a family member with COVID-19,
  • has primary caregiving responsibility to a child that is unable to attend school due to COVID-19,
  • cannot reach his or her place of work because of a quarantine or advice of a health care provider to self-quarantine,
  • has become a breadwinner after the head of household has died from COVID-19,
  • has had to quit his or her work as a result of Coronavirus, or
  • has a work location that is closed as a direct result of a COVID-19 public health emergency.

PUA is available not only if such independent contractors are “unemployed” but also if “partially unemployed.” This benefit is not available, though, if and when such self-employed individuals are receiving paid sick leave or other paid leave benefits, including such benefits available to independent contractors under the federal Families First Coronavirus Response Act or a state law providing such paid benefits to self-employed workers.

Companies Must be Vigilant about Defending Independent Contractor Status: This is a crucial time to have a strong independent contractor agreement and strong independent contractor files loaded with documentation of self-employment. Companies need to be extremely vigilant about defending the independent contractor status of their workers who might be applying for unemployment insurance benefits. Yes, they may be entitled to unemployment insurance benefits, but only as independent contractors-not as employees!

For assistance with protesting IDES Notices of Claims and evaluating independent contractor relationships, contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Employee Return to Work Under Covid-19: What Should Employers Do?, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work

Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, April 30, 2020.

In what may be among the first of many legal disputes arising out of the Coronavirus crisis, an employee in Illinois has filed a lawsuit against the suburban hospital where he worked as a security guard. The plaintiff, Marvell Moody, is alleging that his supervisor berated him for wearing a face mask while working as a public safety officer at Advocate South Suburban Hospital. Moody claims in the lawsuit that he wore the mask because the hospital is treating patients who have COVID-19 and he cares for his 65-year-old mother, who presents an elevated risk for COVID-19 due to recent surgeries she has undergone. The supervisor allegedly told Moody wearing the mask was against hospital policy. Left with no choice other than to assume a risk to himself and an elevated risk to his mother, Moody refused to come to work.

Like most healthcare employers the defendant hospital is likely exempted from Governor Pritzker’s executive order as well as a variety of government agency guidelines relating to workplace safety during the coronavirus pandemic. Moody and Advocate South also are likely exempted from the FFCRA paid sick and expanded FMLA leave provisions. The lawsuit is based on Illinois state law, alleging Moody was “constructively discharged” when he was forced to stop working based on the hospital’s policy against security guards wearing PPE. The complaint also alleges Moody expressed concerns with co-workers that the hospital’s policy was unsafe (suggesting that additional charges may be filed with the NLRB based on a claim the hospital unlawfully interfered with “concerted activities”).

The viability of any of these claims, is questionable. Yet the case is symptomatic of one of the most common issues employers of any industry are encountering during the coronavirus pandemic – employees concerned about the risk to them and/or their families of contracting COVID-19 from work. In the case of the hospital security guard, he claims he was willing to work but only if allowed to wear a protective mask (presumably the same PPE worn by the doctors and nurses working in the same hospital). In so many other similar scenarios taking place in workplaces everywhere, no doubt, employees fear (or disingenuously express fear) that working, for any number of reasons, is too risky. What can employers do? This novel new case may not be instructive as to the law, nevertheless it does suggest why employers may want to think beyond the letter of the law in this era of previously unseen circumstances. Here is a non-exhaustive list of practical things employers might want to consider:

  • Other than the rare occasion of an employee seeking to exploit the pandemic in order to stay home watching TV instead of working, employees’ concerns about exposure to the coronavirus are serious and they are legitimate.
  • Dismissing the legitimate concerns of employees, even where the law allows for exempted industries and positions, is likely to damage employee relations and your business in the long run.
  • This is not to say that employees in critical positions should be allowed to take themselves out of work based solely on personal fears over COVID-19, only that those concerns deserve to be taken seriously.
  • Where employee’s fears and concerns can be reasonably accommodated, consider doing so even though the law may not require it; e.g. a security guard wearing a face mask may violate “standard” workplace protocol, but is there anything really “standard” about anything these days?
  • Consider reviewing procedures and policies to make interim/emergency exceptions during this pandemic crisis (and communicating to employees that any deviations are just that – temporary/emergency changes).
  • Consider issuing a separate procedure, or reaffirming existing procedures already in place, for the purpose of employees communicating issues and concerns specific to the pandemic. Perhaps if something like this were known to the plaintiff security guard he might have raised concerns to someone in HR, or someone other than his immediate supervisor who did what most supervisors do; i.e. enforce existing policies and not deviate from or make them.
  • Communicate to supervisors that in a pandemic, while they are not permitted to “go rogue” and make up rules as they go, they should also consider that “business as usual” may not always be appropriate. Supervisors should be advised to bring any unusual situations they encounter with the employees they supervise, to a designated manager’s attention.

Questions? contact attorney James Sherman in our Minnesota office at jasherman@wesselssherman.com; or (952) 746-1700.

Related Posts: Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?, Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!, Coronavirus Layoffs Result In Class Action WARN Act Lawsuit, COVID-19 and Unions

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Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!

Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Monday, April 27, 2020.

UNDERSTANDING THE UNEMPLOYMENT INSURANCE SYSTEM IN AMERICA: Unemployment insurance benefits in the United States started in Wisconsin in 1932. Then came the Social Security Act of 1935 in which the U.S. Federal government encouraged individual states to adopt unemployment insurance plans.

In today’s world, the unemployment insurance system across America is run differently in each state. This creates a lot of confusion currently in the COVID-19 era. An employer might read an article about how unemployment insurance benefits are being handled in one state and mistakenly think that the information applies to every state. It doesn’t. Each state operates under its own unemployment insurance laws and regulations.

Unemployment insurance is a form of social insurance where employers pay into their state unemployment insurance system on behalf of their employees so that that their employees have income support if they lose their jobs through no fault of their own. The U.S. Department of Labor (USDOL) oversees America’s unemployment insurance system, but the individual states run their own basic unemployment insurance programs.

THE NEW CARES ACT: Under the new CARES Act (Coronavirus Aid, Relief and Economic Security Act), which is relief provided by Congress in response to the COVID-19 pandemic, all states across America will be allowed to provide up to 13 additional weeks of Federally funded extended unemployment insurance benefits to workers who exhaust their regular state unemployment insurance benefits. Under the CARES Act, workers applying for unemployment insurance benefits can receive a maximum of 39 weeks of unemployment insurance benefits.

There is a great variety in how many weeks of unemployment insurance benefits different states allow. For example, Massachusetts provides up to 30 weeks of unemployment insurance benefits under normal circumstances. But Missouri provides up to only 13 weeks of unemployment insurance benefits. Florida provides only 12 weeks of unemployment insurance benefits whereas Montana provides 28 weeks of unemployment insurance benefits.

The CARES Act also creates a new program which specifically covers self-employed Americans, gig workers and independent contractors who are out of work or have significantly reduced hours as a result of the coronavirus pandemic. These are individuals who would not normally be eligible for unemployment insurance because they are not employees. Companies who use independent contractors are shocked that independent contractors are now eligible for unemployment insurance benefits (under certain COVID-19 related circumstances).

Historically, the purpose of unemployment insurance benefits was to “shield the employee from the perils of unemployment.” But now, with the covering of independent contractors and gig workers, we are shielding this new category of worker from the perils of lack of work due to COVID-19!

WHO GETS THE WEEKLY $600: Federal funding under the CARES Act provides an extra flat $600 per week until July 31, 2020 to anyone who gets unemployment insurance benefits. It appears that independent contractors and gig workers may also get this weekly $600.

The problem with distributing the flat amount for unemployment insurance claimants across America is that the State unemployment insurance systems were hit with this responsibility almost without warning. The various states, many of which reportedly have antiquated computer systems, were simply not ready to field millions of claims for unemployment insurance from both traditional employees and also from independent contractors and gig workers who qualify. There has been utter chaos online state by state across America as these claimants attempted to apply for unemployment insurance benefits. Unemployment insurance agency websites crashed and phone lines were backlogged.

The various unemployment insurance agencies across America have to struggle to administer these brand new unemployment insurance programs. Many of the unemployment insurance agencies are struggling themselves as employers because they are themselves suffering from lack of state funding and lack of personnel (they are short staffed due to COVID-19 related reasons).

STATES ARE CATCHING UP IN TERMS OF MEETING THE NEEDS OF CLAIMANTS: Various states have recently been able to start distribution of the $600 per week federal benefit which is available to certain claimants until July 31, 2020. Each state is different. Some states have not even begun to distribute the $600 because they do not have the computer programs and technology to do so yet. Many states indicate on their respective websites that they will make the $600 weekly benefit retroactive to a specified date.

WHAT SHOULD EMPLOYERS DO?: I am receiving many phone calls from concerned employers who are wondering if their employees would be better off financially in filing for unemployment insurance or rather working part time with reduced hours.

In many cases, employees who are let go from relatively low paid jobs will end up making more if they are able to collect unemployment insurance benefits. Adding the regular state unemployment insurance benefit to the $600 federal weekly benefit creates a total weekly amount often exceeding what the low paid worker made while fully employed.

If the partially unemployed worker is able to collect even $1 of unemployment insurance, that worker will get the weekly $600 added to their state unemployment insurance amount, but only until the end of July 2020 (unless there is new federal legislation passed to extend it; there are rumors that the date might be extended).

Independent contractors are now seemingly eligible for unemployment insurance benefits, but we have not yet seen how this will be evaluated and administered state by state. For one thing, independent contractors don’t have a set weekly paycheck, so the independent contractor will have to provide documentation of money earned over the past year (usually it would be their IRS Form 1099 for 2019).

A SOMEWHAT UNEXPECTED TENSION: It is becoming clear that one unexpected tension is arising and will continue to arise between companies who have laid off or fired workers and workers who are now enjoying a relatively high amount of unemployment insurance benefits. These workers don’t want to come back to work. The worker is now making more money being on unemployment (and the worker also may fear exposure to COVID-19 being at work).

On the websites for state unemployment insurance agencies, this matter is touched upon in the frequently asked questions section of the website. The state unemployment insurance website suggests that the employer can file a complaint with the state unemployment insurance agency by reporting that the worker is turning down available work in preference to remaining on unemployment.

WILL THE EMPLOYER BE CHARGED FOR COVID-19 RELATED UNEMPLOYMENT INSURANCE CLAIMS?: As of the writing of this article, we don’t know. Usually, employers find that their unemployment insurance rate goes up for several years when a worker gets unemployment insurance benefits and those benefits are charged to the unemployment insurance account number of that employer. However, there are certain circumstances under which employers will find their unemployment insurance accounts are not charged. It is certainly possible that there will be a legislative decision made (or perhaps guidance from the USDOL directing states to institute a program) whereby COVID-19 unemployment insurance benefits should not be charged to the employer’s unemployment insurance account number but rather should be charged to a pool.

If legislation is passed making claims related to COVID-19 non-chargeable to the employer, then employers furloughing or laying off workers due solely to COVID-19 would not be required to contribute to the benefit costs, and the costs would be “pooled” between all employers. This would likely result in increased unemployment tax rates in future years for all employers because the entire pool of employers would need to be tasked with replenishing the benefit trust fund.

Therefore, with each and every unemployment insurance claim (even ones that the employer doesn’t wish to protest), employers should make it clear to the state unemployment insurance agency that the claim is COVID-19 related.

THESE ARE UNUSUAL TIMES: Several clients have called me recently to tell me that they have received a Notice of Claim in the mail which already is “not timely.” In other words, the Notice of Claim has a reply due date which has already passed. The client wants to know if I think it is a waste of their time to protest the Notice of Claim in view of the fact that the reply due date has already come and gone. My advice to the client is to absolutely protest the Notice of Claim!

I instruct the client to note in the beginning of the protest in capital letters and bold that the Notice of Claim arrived on [fill in date of arrival] and the company opened its mail immediately on that day and discovered the reply due date had come and gone. I tell the client to state there are witnesses in the company who are willing to testify under oath that the Notice of Claim from the unemployment insurance agency arrived on a specific date and was opened immediately.

If the envelope in which the Notice of Claim arrived has a postmark, I tell the company to attach a copy of the envelope as an exhibit to the protest. The company should note that it has always been timely in protesting unemployment insurance claims and request that this protest be considered timely because the company immediately protested the Notice of Claim under these circumstances. Then explain why they are protesting including any needed references to COVID-19 (with the hope that perhaps any unemployment insurance benefits will not be charged to the company but rather to the entire pool of employer accounts).

CONCLUDING THOUGHTS: We are entering a brave new world in terms of a virtual ocean of legal issues involving unemployment insurance benefits, new legislation, coverage of independent contractors with unemployment insurance benefits, etc. The problems throughout America’s unemployment insurance system are massive ranging from computer issues to new laws being passed quickly and thrust upon state unemployment insurance agencies (who have to understand and figure out to administer the laws and figure out on a case by case basis who is eligible).

This situation could not have even been imagined several months ago. It is a tremendous learning curve for employers, employees, independent contractors, federal and state agencies, and our society.

Things have moved fast and much is not fully understood yet. Be advised therefore to work with an experienced employment lawyer on the specific facts of any unemployment insurance case as it arises.

Questions? Contact attorney Nancy Joerg in our St. Charles, Illinois office at najoerg@wesselssherman.com or at (630) 377-1554

Related Posts: Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work, Coronavirus Layoffs Result In Class Action WARN Act Lawsuit, COVID-19 and Unions, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

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Coronavirus Layoffs Result In Class Action WARN Act Lawsuit

Coronavirus Layoffs Result In Class Action WARN Act Lawsuit

By James B. Sherman of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, April 23, 2020.

In what may be the first of many to follow, Hooters restaurant chain was hit with a proposed class action lawsuit alleging WARN Act violations. The lawsuit was brought in federal court by two employees on behalf of all employees in Florida whom Hooters allegedly failed to provide with 60 days advance written notice of their layoffs as required by federal law. Although the mass layoffs occurred in the context of the COVID-19 pandemic and government ordered closings, the plaintiffs contend that Hooters should have evaluated the impact of the pandemic sufficiently in advance of laying employees off. The complaint seeks 60 days’ backpay and other damages for each day of advance notice employees were entitled to receive under WARN prior to being laid off. Alternatively, the complaint asks for damages caused by Hooters’ alleged failure to give “as much notice as was practicable” under the circumstances, as required by D.O.L. regulations on the WARN Act. While the outcome of this lawsuit has yet to be determined, it and others likely to follow serve as a reminder to employers of the need to consider federal and state layoff and closing notification laws…even during a pandemic.

The federal WARN Act applies to employers with 100 or more employees; however, so-called “Mini WARN Acts” adopted under various state laws commonly cover employers with just 50 or fewer employees. These laws typically require that employees, their union representatives and/or state and local government officials be given written notification in advance of any defined mass layoff or closing. Triggering events typically involve those that impact 50 or more employees, but again, many state laws (e.g. WI and IL) trigger notice requirements when 25 or more employees experience an “employment loss.” Most of these laws require at least 60 days advance notice, but how can an employer provide such notice when terminations or long-term layoffs are caused by something as unimaginable as a global health crisis? The WARN Act and similar laws provide for certain exceptions to the 60 day notice requirement; e.g. for “unforeseen business circumstances,” “faltering businesses,” or “natural disasters.” However, employers who rely on these exceptions to conclude they are excused from providing any notice under these laws, may be making a costly mistake. D.O.L. regulations clearly state that where giving the full 60-day notice is not practicable, employers must provide as much notice as is practicable under the circumstances. In other words, when an employer becomes aware of the need to implement a covered plant closing or mass layoff, regulations consider just 2 working days as sufficient time to prepare and issue compliant notices under the law.

The federal WARN and similar state laws are full of nuances that create legal traps for employers and opportunities for plaintiffs and their lawyers. Here are just a few examples:

  • An employer need not close an entire plant to trigger a “plant closing” requiring advance notice; discontinuing an “operational unit” within a plant may trigger WARN if a sufficient number of employees are affected.
  • Employees do not need to be discharged to count toward the number of affected employees triggering notice requirements; e.g. a layoff lasting 6 or more months, or a reduction in hours of 50% or more in each of 6 consecutive months, can count as an “employment loss.”
  • Employment losses are subject to being aggregated over 90 days, meaning employers not only should account for employees likely to be affected in any given month but also whether more employees may be impacted over roughly any rolling 3 month period.
  • Advance notification laws place considerable onus on employers to essentially predict the future to some degree. Arguments over whether closings and layoffs were foreseeable, often wind up in court as appears to be the plaintiff’s argument in the pending case against Hooters.
  • Even where employees may already be furloughed or laid off, if it becomes apparent employees may not be recalled as originally expected the duty to issue WARN notices may be triggered after the fact (something counterintuitive in the context of laws requiring advance notification).
  • WARN and Mini WARN notices must comply with the very specific notice requirements of the law. For example, a generic letter that fails to address any one of the specific notice requirements such as bumping rights, expected duration of the event, etc., would be deficient.
  • Separate notices with different information must be sent to various government officials, union representatives and/or individual employees; one size does not fit all.

Given the complexities of federal and state notification laws, employers are well advised to take them into account from the moment they foresee any possibility of a plant closing, whether partial or total, temporary or permanent, or mass layoffs that might impact 50 or as few as 25 employees. Prudent employers may wish to have WARN-style notices prepared in draft form, ready to use during this pandemic. Two days is not much time to become familiar with WARN Act requirements, draft legally compliant notices, compile roster lists, etc., particularly during a crisis where things are so unpredictable from one day to the next. Unfortunately, for employers who may be experiencing great hardship during the Coronavirus pandemic plaintiff lawyers appear to still be actively working.

For answers to questions about what notification laws may apply to your business, when notice requirements have been or may be triggered, or for help with preparing compliant notices to use or have ready in draft form, contact attorney James Sherman: Email – jasherman@wesselssherman.com; Phone – (952) 746-1700.

Related Posts: Suburban Chicago Security Guard Sues His Employer For Allegedly Refusing To Allow Him To Wear A COVID-19 Protective Facemask At Work, Employers in the COVID-19 Era Need to Have a Good Grasp on Unemployment Insurance Issues: Things are Changing Fast!, COVID-19 and Unions, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

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The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Tuesday, April 14, 2020.

As I write this article in the COVID-19 era with the purpose of assisting Illinois companies who use independent contractors, things are moving rapidly in terms of new federal laws, regulations and state guidelines. Changes are occurring at the Illinois Department of Employment Security (IDES) with shocking speed!

NEW REGULATIONS AND GUIDELINES CHANGING ALMOST WEEKLY: For those companies using independent contractors, this article is relying on the latest information from the IDES website. The reader should be aware that new regulations and guidelines can pop up on an almost weekly basis. Be sure to check with your employment lawyer before formulating any actual plans based upon statements made in this article.

IDES CURRENT TREATMENT OF INDEPENDENT CONTRACTORS: One of the most controversial things that I have read on the IDES website page about COVID-19 and Unemployment Benefits (in the section on Frequently Asked Questions for Claimants) concerns the question and answer as follows:

Claimant Question: “I am an independent contractor and do not have any business because of COVID-19. Am I eligible?”

IDES Answer: Only employees get regular state unemployment insurance benefits.

The bottom line is that MISCLASSIFIED INDEPENDENT CONTRACTORS IN ILLINOIS ARE ELIGIBLE FOR REGULAR STATE UNEMPLOYMENT INSURANCE BENEFITS BECAUSE THEY ARE VIEWED AS EMPLOYEES BY THE IDES.

IDES WILL INVESTIGATE WORKING RELATIONSHIP: Another startling concept to be gleaned from the IDES website is that the IDES will have to investigate the working relationship between the independent contractor and the Illinois company that pays the independent contractor to determine if the Claimant is actually a misclassified independent contractor or a “legitimate independent contractor.” Of course, there are other issues to be decided such as whether the independent contractor lost his or her job due to COVID-19.

THE $600 PER WEEK BENEFIT: It has been widely publicized all over the Internet, on television, on the radio, and in newspapers that independent contractors, due to new federal legislation, are eligible for a $600 per week (federal stimulus) unemployment insurance benefit. Many people assumed that the $600 per week federal stimulus would be added on top of what the independent contractor would also get for regular state unemployment insurance benefits.

There are several things to keep in mind here. One is that only misclassified independent contractors will get both regular state unemployment insurance benefits and the flat $600 per week federal unemployment insurance stimulus benefit (keep in mind the $600 per week benefit ends, per federal legislation, at the end of July 2020).

Legitimate independent contractors (as defined by the IDES under the Illinois Unemployment Insurance Act) will not get regular state unemployment insurance benefits and will only get the flat $600 per week federal stimulus benefit until the end of July 2020. It appears that after July 31, 2020, legitimate independent contractors will no longer be getting any unemployment insurance benefit of any type.

It is unclear at this point in time if every independent contractor who applies for unemployment insurance benefits will get the full $600 per week federal stimulus benefit, but the implication is that they will. It remains to be seen how this actually will shake out. Additional legal issues will also arise such as if the independent contractor is lacking work due to COVID-19 because this appears to be a legal requirement under the federal stimulus legislation.

PARTIALLY-EMPLOYED INDEPENDENT CONTRACTOR: An interesting question and answer on the IDES website page about COVID-19 and Unemployment Benefits (in the section on Frequently Asked Questions for Claimants) appears as follows:

Claimant Question: If I am a partially-employed independent contractor and I am eligible for benefits under the federal legislation, will I receive the full amount of the extra $600 per week?

IDES Answer: Yes. If you are eligible for even $1 of unemployment benefits, you are eligible for the entire $600 extra.

UNEMPLOYED DUE TO COVID-19: Another interesting question asked and answered on the IDES website page about COVID-19 and Unemployment Benefits (in the section on Frequently Asked Questions for Claimants) is as follows:

Claimant Question: I am an independent contractor. In order to receive benefits under the federal stimulus legislation, do I have to be unemployed because of COVID-19?

IDES Answer: Yes. The federal stimulus legislation requires that individuals not eligible for regular unemployment benefits, such as independent contractors, are unemployed due to COVID-19. (emphasis added)

HOW THE IDES EVALUATES THE EARNINGS OF AN INDEPENDENT CONTRACTOR: Illinois companies that use independent contractors may wonder how the IDES is going to evaluate the earnings for an independent contractor who files for unemployment insurance benefits.

The IDES website explains that the independent contractor claimant must provide 2019 federal income tax return or other documentation to show earnings in 2019. So, it appears that the focus will be on 2019 earnings and presumably what the independent contractor relationship was like in 2019 between the Illinois company (i.e., the company that paid the independent contractor in 2019) and the Claimant.

IDES WEBSITE FREQUENTLY ASKED QUESTIONS: I highly recommend that companies using independent contractors go to the IDES website and read the Frequently Asked Questions for both claimants and employers. Here’s the link.

INFORMATION WILL LIKELY CHANGE VERY QUICKLY: Please be aware that the IDES has had to make very quick judgements under enormous time pressure and hurriedly put general guidance on its website that the IDES may later realize needs to be modified. Realize that guidelines on the IDES website may be changed as time goes by (possibly in the face of new legislation and regulations) and as the IDES tackles the many thousands of real-life cases involving COVID-19 and related issues.

CAUTION MUST BE USED WHEN RESPONDING TO ANY IDES NOTICE OF CLAIM: These are extraordinarily complicated times for employers in Illinois. Companies need to be extremely vigilant about defending the independent contractor status of their workers who might be applying for unemployment insurance benefits.

This new order of things means that Illinois companies who use independent contractors must be very careful in how they respond to any IDES Notice of Claim as a result of an independent contractor filing for unemployment insurance benefits. It would be unwise for a company to miss any opportunity to assert that their independent contractors are properly classified under the Illinois Unemployment Insurance Act [under Section 212(A), (B), (C); Section 212.1 for truck owner-operators; Section 217b for independent contractor direct sellers, or some other section defining when a particular kind of worker is an independent contractor].

Such an assertion by the Illinois company should be carefully planned and, in many cases, should be accompanied by documentation proving independent contractor status (such as an independent contractor agreement, proof of incorporation of the independent contractor, advertising by the independent contractor, business card of the independent contractor). Be very aware of all correspondence and mail from the IDES. Immediately note the reply due date. Don’t lose the opportunity to respond with a timely, strong protest.

For assistance with figuring out the best strategy for Illinois companies in view of these dramatic new laws and guidelines regarding unemployment insurance benefits in Illinois, contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: COVID-19 and Unions, OSHA Issues Guidance for Recordkeeping of COVID-19 in the Workplace, COVID-19 and Hazard Pay, Covid-19 and Refusal to Work

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Coronavirus/COVID-19

OSHA Issues Guidance for Recordkeeping of COVID-19 in the Workplace

OSHA Issues Guidance for Recordkeeping of COVID-19 in the Workplace

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Friday, April 10, 2020.

On April 13, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued interim guidance for enforcing OSHA’s recordkeeping requirements as it relates to recording cases of COVID-19.

Employers are responsible for recording cases of COVID-19 if the case:

  • Is confirmed as a COVID-19 illness;
  • Is work-related as defined by the regulations; and
  • Involves one or more of the general recording criteria, such as medical treatment beyond first aid or drugs away from work.

OSHA noted that certain employers other than healthcare emergency response (medical and fire) along with law enforcement and correctional facilities may have difficulty in determining the worker contracted COVID-19 at work.

Thus, OSHA indicates that until further notice it will not enforce record keeping for most employees for COVID-19 except where:

  1. Objective evidence that a case of COVID-19 may be work-related, and
  2. Evidence was reasonably available to the employer.

As such, employers of workers in healthcare, emergency response, and correctional facilities must continue to make work-related determinations of COVID-19 and record it.

NOTE: Determinations for OSHA recordkeeping for a work related condition is NOT an admission of liability/coverage of a claim of COVID-19 under the Illinois Workers Compensation/Occupational Disease Acts.

Questions? Contact attorney Anthony J. Caruso, Jr., in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

Related Posts: COVID-19 and Unions, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?, COVID-19 and Hazard Pay, Covid-19 and Refusal to Work

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Coronavirus/COVID-19

COVID-19 and Hazard Pay

COVID-19 and Hazard Pay

By Attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Tuesday, April 7, 2020.

As COVID-19 spreads throughout America, companies are deciding whether to give pay raises to employees, especially those clearly exposed to COVID-19 risks. This is a really hot topic, so much so that we decided to spend a bit of time looking at what is happening. Most of our information is a result of internet searches over the weekend.

Many people argue that workers who are incurring some amount of unavoidable risk from COVID-19 deserve additional pay (often termed “hazard pay”).

Many of the workers now being relied on for food, supplies and more (such as restaurant workers, delivery drivers, janitors, and others) amidst the backdrop of COVID-19 are traditionally low-wage jobs. At Kroger, for example, the country’s second-largest grocery chain with 453,000 workers, the average hourly wage of cashiers is $9.94 per hour according to recent online estimates.

These frontline workers endure great risk as they serve the public. Therefore, many commentators, journalists, and union representatives argue these workers should be granted hazard pay.

SOME FRONTLINE WORKERS ARE RECEIVING $2 PER HOUR PAY RAISES: Responding to pressure from the UFCW, two major grocery stores, Safeway and Shoppers, are now offering an additional $2 per hour of hazard pay. Other companies have recently announced pay bumps for its front line workers – including Amazon, Albertsons, Whole Foods, and Target which all announced $2 per hour pay raises for eligible employees.

Walmart announced on March 19, 2020 that it would provide a special cash bonus “for hourly associates for their hard work and dedication to serving customers in a time of an unprecedented national health crisis.” The bonus will be $300 for full-time hourly associates and $150 for part-time hourly associates and will add up to more than $365 million. Walmart further announced that in addition to that special hazard pay bonus for hourly associates, Walmart will accelerate the next scheduled quarterly bonus for eligible associates a month early.

GOOGLE SEARCHES FOR HAZARD PAY: According to “Google Data,” recent Google searches for “hazard pay” have skyrocketed! As the COVID-19 pandemic deepens across America, the concept of “hazard pay” is increasingly on the minds of frontline workers (and the unions who represent them).

If the reader Googles “hazard pay COVID-19,” it will become readily apparent that this issue has electrified that sector of the American workforce which doesn’t have the option of working safely and remotely, far away from the public. The frontline worker must deal with the serious risk of exposure to COVID-19.

DEFINITION: The USDOL addresses “hazard pay” on its website. It notes:

“Hazard pay means additional pay for performing hazardous duty or work involving physical hardship. Work duty that causes extreme physical discomfort and distress which is not adequately alleviated by protective devices is deemed to impose a physical hardship. The Fair Labor Standards Act (FLSA) does not address the subject of hazard pay, except to require that it be included as part of an employee’s regular rate of pay in computing the employee’s overtime pay.”

Almost anyone not working remotely in this COVID-19 era could make a cogent argument that they should be granted hazard pay under that definition.

SURVEYED EMPLOYERS: An online newspaper, Workspan Daily, published an online article: “How Organizations are Handling Rewards and Hazard Pay Decisions in a COVID-19 World,” (April 3, 2020). The article explored how companies are making compensation decisions involving COVID-19 pressures relating to hazard pay.

Workspan Daily conducted a poll of 267 organizations. The results of the poll showed that 65% of organizations polled did not offer hazard pay but instead offered perks such as meals and daycare options to frontline workers. 9% of the companies polled had no plans to offer hazard pay or perks to employees.

26% of surveyed employers said they are planning to provide hazard pay at some point. Of those, 9% will offer a cash incentive as hazard pay that is a flat dollar amount, 8% will give cash incentives as hazard pay tied to hours and shifts worked, and 9% will give cash incentives as hazard pay based on a different formula (such as a percentage of salary).

PRESSURE FROM UNIONS: Unions across America are pressuring select employers to provide hazard pay. APNews.com reported online that the Illinois Nurses Association achieved hazard pay for certain nurses at University of Illinois Hospital. On April 3, 2020, the agreement between the union and the hospital regarding hazard pay was announced:

“Depending on assignment, the extra pay ranges from $5 an hour to $15 an hour for registered nurses and from $3.50 an hour to $9 an hour for licensed practical nurses. Nurses on salary also get increases.

The agreement will remain in place until either the Illinois stay-at-home order is lifted or the hospital suspends its internal emergency operations.

Alice Johnson, INA executive director, said in a statement the agreement offers ‘an immediate way for our members to be compensated for the additional work, stress and risk that they are under.'” (emphasis added)

CENTRAL STATES JOINT BOARD:

Central States Joint Board is a Chicago area umbrella union for a number of small locals which represent employees primarily in small manufacturing companies. They use the names Novelty and Production Workers Union, Chemical and Production Workers Union (CPWU) and Plastics Workers Union. They have numerous local numbers which are Locals Nos. 8, 10, 12, 16, 18, 20, 24, 30 and 803.

They sent out an email last week asking for 15% hazardous duty pay. So far as we know, none of these manufacturing companies have granted it or given anything in the way of hazard duty pay.

TEAMSTERS LOCAL 743:

On Tuesday of last week, IBT Local 743 emailed companies where they have contracts asking for hazard pay or some other kind of compensation for members who are “putting themselves in harm’s way”. IBT 743 states that many of the facilities where they have contracts “have stepped up and given their employees hazard pay”. We do not know if this is true.

SCOTT NARUG’S RESEARCH:

Our good friend Scott Narug spent some time on the internet over the weekend and came up with the information below.

Company NameIndustry SegmentPay Increase
AlticeBroadband/IT20%
AcmeGrocery Store$2.00/hour
AmazonWarehouse$2.00/hour
Campbell’sFood Manufacturing$2.00/hour
CargillAgriculture$2.00/hour
Circle KConvenience Store$2.50/hour
Cub’s FoodsGrocery Store$2.00/hour
Fred MeyerGrocery Store$2.00/hour
KrogerGrocery Store$2.00/hour
MeijerGrocery Store$2.00/hour
ModelezFood Manufacturing$2.00/hour
PCCGrocery Store$2.00/hour
Quick TripGrocery Store$2.00/hour
RaceTracConvenience Store$3.00/hour
SafeWayGrocery Store$2.00/hour
SheetzConvenience Store$3.00/hour
Stater BrosGrocery Store$2.00/hour
TargetRetail$2.00/hour
TopsGrocery Store$1.00/hour
WegmansGrocery Store$2.00/hour

Grocery workers, agricultural producers, truck drivers who keep the supply chains moving, cooks and delivery people, along with healthcare professionals, first responders, sanitation employees, and others whose labor is essential to a functioning society during this pandemic, now make a strong persuasive argument through online petitions, union representatives, and other means of negotiation that they should be awarded hazard pay.

Employers must now evaluate these pressures for hazard pay. Employers face the challenge of developing a strategy for business survival in this COVID-19 world. Our sense of the situation is that the public contact workers mentioned above are in most cases receiving hazard pay. That does not seem to be the case with manufacturers and small non-public contact companies.

UNION REQUESTS FOR HAZARD PAY BARGAINING:

What about union requests for bargaining on hazard duty pay? Usually this occurs where there is a labor contract in effect, not an ongoing bargaining context. The law is murky here and these situations are very fact sensitive. The labor contract could have a zipper clause which waives mid-contract bargaining. The NLRB caselaw almost always involves an issue of unilateral change. In fact, the NLRB just issued a memorandum analyzing unilateral change caselaw because of its importance during a national emergency. Of course, the hazard pay issue involves a different fact pattern. Here the union has requested bargaining over the issue. National emergencies give a union a compelling argument that there is an obligation to bargain over hazard pay. The reality is that an employer risks little because there is no obligation to agree, only to discuss. Most employers conclude that the best route to go is to talk with the union if they make a request for hazard pay. It doesn’t seem appropriate in a national emergency to respond that we have no obligation to bargain, we’re not going to talk with you about this.

For assistance with figuring out the best course of action for your company, contact Attorneys Richard Wessels or Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or by email at riwessels@wesselssherman.com or najoerg@wesselssherman.com.

FINAL REQUEST:

And now a final request. We are planning on updating this hazard pay commentary with information on what our clients are doing. We will not divulge any company name, only a summary of what you are doing. Let us know. Thanks.

Related Posts: COVID-19 and Unions, The Latest from the IDES Regarding Independent Contractors: What Has Changed in the COVID-19 Era?, OSHA Issues Guidance for Recordkeeping of COVID-19 in the Workplace, Covid-19 and Refusal to Work

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Coronavirus/COVID-19

Illinois Employers Keeping up with COVID-19 and IDES: Unemployment Insurance Benefits and Coronavirus

Illinois Employers Keeping up with COVID-19 and IDES: Unemployment Insurance Benefits and Coronavirus

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, April 2, 2020.

Illinois employers take note! The Illinois Department of Employment Security (IDES) has a new notice on its website addressing the remarkable expansion of unemployment insurance benefits under the federal stimulus package known as the CARES Act (Coronavirus Aid, Relief and Economic Security Act).

The IDES states that not everyone will be eligible for all the benefits contained in the package, and some benefits will not begin immediately.

On its website, the IDES asks that applicants not inquire about the new federal programs. Once the details about the new federal programs (and how to apply) have been finalized, the IDES will make that information available.

Per the IDES website, once the federal stimulus package has been implemented in Illinois, individuals receiving unemployment benefits will receive an additional $600 per week above what they would receive in regular unemployment benefits until July 31, 2020. This will not be retroactively applied to unemployment benefits received in the past.

For the first time, the IDES brings up the issue of whether independent contractors will qualify under the new federal unemployment program. The IDES states that the federal stimulus package “creates a new, temporary program to help independent contractors who lose work as a direct result of the current public health emergency.” The IDES asks that independent contractors not apply for unemployment insurance benefits at this time because the details about how to apply have not been finalized. Additionally, the IDES indicates is extremely busy processing the large volume of claims for individuals who are eligible under current benefit programs. As we learn more about how the IDES will handle these issues, we will continue to send updates.

Illinois employers who need assistance with figuring out the best course of action in view of these dramatic new laws regarding unemployment insurance benefits in Illinois should contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: (630) 377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Covid-19 and Refusal to Work, DOL Rolls Out Regulations Implementing FFCRA Obligations, Illinois Employers Need to Understand Changes to Unemployment Insurance Due to Covid-19, DOL Provides Additional Guidance on FFCRA Obligations

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