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

24 Feb 2021 00:00:00 -0800

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

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

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

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

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

Election Enmity and Ballot Blues: Properly Managing Political Activity in the Workplace

22 Feb 2021 00:00:00 -0800

As we all know, politics is by far the most polarizing topic likely to come up in conversation in today’s workplace. The American population is more divided along party lines than at any other point in post-Reconstruction history. With the rise in partisan ideology and behavior comes additional tension and disagreement that turns the office environment into a dusty Western saloon, where one cross look or misplaced insult can devolve into a metaphorical, or even literal, barroom brawl.

Indeed, surveys state that more than half of employees nationwide believe political discussions are generally not appropriate for the workplace, yet about one-quarter of those surveyed admit to talking about politics at work for at least fifteen minutes per workweek. Other studies showing that approximately 25% of all employees, including a disproportionately high number of younger workers, feel stressed and isolated at work because of political discussions or believe they have been subject to hostile or discriminatory treatment by their employer as a result of partisan debates.

Political discussions at work are typically not fruitful in terms of promoting civic engagement or unifying workers of diverse backgrounds. More than 63% of Americans polled in 2019 said that while they had more frequent political discussions during the Trump presidency than in previous administrations, they feel those discussions are more stressful and frustrating than in prior years. In addition to worsening morale, political division is bad for productivity. A staggering 87% of employees admitted to reading political social media posts during the workday after the 2016 election, and 29% said that they were less productive at work as a result. Now, in the wake of the former president’s second impeachment and the election of a new Democratic administration, tempers are flaring ever higher and the likelihood of division and conflict in the workforce is all the more concerning.

The deepening schism between the political classes—Republicans and Democrats, conservatives and liberals, those who support the news media and those who claim it is all “fake news”—means that HR professionals are working overtime to ensure that workers feel supported and safe from politically-biased treatment while reinforcing companies’ policies on appropriate workplace conduct and prohibited types of speech. It is essential for HR departments to dispel the myth that employees cannot be restricted from exercising their First Amendment rights of speech and expression in the workplace since no such rights exist in the context of private employment. Further, jurisprudence has long held that employers are free to regulate employee’s dress and conduct that causes disruption as long as they are even-handed in doing so and the result is not to favor one type or “brand” of political speech over another.

But, as with many topics, the devil is in the details. An employee who wears a “Make America Great Again” hat or a “Black Lives Matter” shirt in the office may be viewed as making a political statement not directly tied to any term or condition of their employment that may cause disruption, which could violate company policy. Employers have been quick to enforce such policies in light of the widely reported riots around the country and storming of the Capitol, as expressions of extremist views on topics like race relations have been seen to erupt into public displays of violence and mob mentality. And putting aside the threat of workplace violence, there is an inherent risk when political debates emerge in the workplace that employees may feel targeted, harassed, or bullied by their co-workers or supervisors if those discussions involve topics related to race, religion, gender, LGBTQ status, or other protected categories under federal and state anti-discrimination laws.

On the other hand, using the examples above, if the employee’s hat instead promoted deregulation of the employer’s industry, or the shirt referenced increasing the national minimum wage, then those statements may constitute “protected concerted activity” under Section 7 of the National Labor Relations Act which allows all employees (union and non-union) to discuss wages, benefits and other working conditions with each other free from any retaliation or adverse action. Add to the confusion the fact that Louisiana is one of several states that prohibit employers from retaliation against employees who engage in “political activities” or based on party membership.

These murky waters of what constitutes legally protected workplace conduct have been tested in recent years. Two former Google software engineers sued the company for alleged discrimination based on their perceived conservative political views and their status as male Caucasians after the two engineers were terminated for statements regarding gender and religion that were deemed to violate the company’s code of conduct. Google later entered into a conciliation agreement with the National Labor Relations Board and was forced to revise its policies and publicly clarify examples of permissible workplace behavior. Around the same time, the Supreme Court declined to hear a decision from the Fifth Circuit Court of Appeal in which it held that a national fast-food chain that prohibited employees from wearing “Fight for $15” buttons at work had violated the employees’ rights to protected concerted activity.

In these uncertain times, it is more important than ever to review your company’s policies on political activity in the workplace, and if you have questions about whether certain discussions or actions may be protected under state or federal law, consult with an experienced labor and employment attorney.

A Short Summary of How President Biden's American Rescue Plan Could Impact Employers

19 Feb 2021 00:00:00 -0800

President Biden's almost $2 trillion "American Rescue Plan" is working its way through Congress. Several provisions of the Plan could significantly impact employers:

Minimum wage: The Plan would raise the federal minimum wage to $15 an hour over four years and end the tipped minimum wage and the sub-minimum wage for people with disabilities.

Worker safety: The Plan includes significant provisions designed to improve worker safety, including a COVID-19 Standard to be created by OSHA as well as additional funding for enforcement.

Expanded FFCRA leave: The Plan would extend the paid sick and family leave benefits of the FFCRA to September 31, 2021 and would require all employers to offer FFCRA leave, including health care providers and those with fewer than 50 employees and those with more than 500 employees. The ARP also would require up to 14 weeks of paid sick and family and medical leave and expand the list of parental caregiving situations that will be covered. The Plan proposes to reimburse employers with fewer than 500 workers the full cost of providing the leave.

Extended unemployment: The ARP would increase federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that was approved last year, through September of this year, and expand eligibility to independent contractors.

Miscellaneous: The ARP would also:

Grant approximately $440 billion in support to "struggling communities," including small businesses, Tribal governments, public transit, and essential workers;
Provide $130 billion to help schools safely reopen;
Expand the Higher Education Emergency Relief Fund;
Expand financial assistance to both childcare providers and families, including:
- providing a fully refundable Child Tax Credit for one year, and
- expanding the Earned Income Tax Credit for one year;
Provide another $1 billion for states for Temporary Assistance to Needy Families ("TANF") recipients.

Employers need to keep an eye on this Bill as it winds its way through Congress.

Understanding Louisiana Non-Compete Law

18 Feb 2021 00:00:00 -0800

Most states use a reasonableness test in determining whether a non-compete agreement is valid and enforceable. If reasonable as to scope, duration and geographical reach, such agreements are usually enforceable. Reasonableness, however, plays no role in Louisiana in determining the validity and enforceability of these agreements. Instead, strict compliance with a single statute determines whether these agreements will be upheld in Louisiana.

La. R.S. 23:921, Louisiana's controlling statute, begins with a general prohibition against any agreement whereby anyone is restrained from exercising a lawful profession, trade, or business, unless one of the narrow exceptions to the general prohibition contained therein has been satisfied. It provides:

Every contract or agreement, or provision thereof, above which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this section, shall be null and void.

This opening paragraph of La. R.S. 23:921 reflects Louisiana's strong public policy against these agreements. The exceptions to the general prohibition, for the most part, are based upon relationships. They include the employer/employee relationship, the sale of the goodwill of the business, the dissolution of a partnership, the Franchisor/Franchisee relationship and Employer/Computer Employee relationship. Additional exceptions added by the Louisiana Legislature in recent years are again based upon relationships. They include the Corporation/Shareholder relationship, the Partner/Partnership relationship, without consideration of any possible dissolution, and the Limited Liability Company/Member relationship.

Because these agreements are in derogation of the common right to earn a living, Louisiana jurisprudence has strictly construed these exceptions to the general prohibition. To fall within these exceptions, most Louisiana courts have required both non-compete and non-solicitation agreements to list the area of prohibition by parishes, municipalities, or parts thereof, together with a term of no longer than two (2) years from the date of termination of the relationship.

While not specifically contained within the statute, various Louisiana courts have also required that a valid non-compete agreement accurately define the business in which the individual is prohibited from competing. Other Louisiana courts deny the need for this additional non-statutory-based requirement. If the business is defined within the agreement, however, the definition should be narrow and accurate.

As demonstrated herein, non-compete agreements in Louisiana can be enforceable. Preparing non-compete agreements that comply with Louisiana law, however, is critical to their enforceability. Complying with Louisiana’s controlling statute is the most important aspect of preparing valid and enforceable agreements in Louisiana.

Ninth Circuit Issues a Per Diem Ruling That is Worth Noting

12 Feb 2021 00:00:00 -0800

On the 8th of this month the Ninth Circuit Court of Appeals issued a ruling that certain per diem payments must be included in an employee's regular rate of pay. Although the Ninth Circuit covers only Alaska, Arizona, California, Guam and Hawaii, the ruling is nonetheless worth noting to those of us fortunate enough to live and work in the Fifth Circuit.

As you know, under the FLSA a non-exempt employee must be paid overtime at the rate of time and a half times the employee’s regular rate of pay. This fact begs the question: what constitutes the regular rate of pay?

The short answer is: it depends.

In the case before the Ninth Circuit, Clarke v. AMN Services, LLC, AMN, a staffing company sometimes placed its employees at facilities that required them to drive a long distance from their homes. In addition to their hourly rates, AMN paid the employees who traveled more than fifty miles from their homes per diems that were intended to reimburse them for the cost of meals, housing, and other expenses. Being aware of 29 CFR 778.217, AMN Services did not include the per diem payments in the traveling workers' regular rates of pay when calculating their overtime.

29 CFR 778.217 states in relevant part that:

(a) General rule. Where an employee incurs expenses on his employer's behalf or where he is required to expend sums by reason of action taken for the convenience of his employer, section 7(e)(2) is applicable to reimbursement for such expenses. Payments made by the employer to cover such expenses are not included in the employee's regular rate (if the amount of the reimbursement reasonably approximates the expense incurred). Such payment is not compensation for services rendered by the employees during any hours worked in the workweek.

(b) Illustrations. Payment by way of reimbursement for the following types of expenses will not be regarded as part of the employee's regular rate...

(5) The actual or reasonably approximate amount expended by an employee as temporary excess home-to-work travel expenses incurred (i) because the employer has moved the plant to another town before the employee has had an opportunity to find living quarters at the new location or (ii) because the employee, on a particular occasion, is required to report for work at a place other than his regular workplace.

The Ninth Circuit held that these per diem payments should have been included in the employee's regular rate of pay because the structure of the payments suggested that they were more akin to wages rather than reimbursements. For example, the amount of the per diem payments depended in part on the number of hours worked by the employee rather than the expenses the worker incurred. In addition, AMN Services made identical per diem payments to its employees who were not required to travel more than 50 miles away from home on assignment. The company included these per diems in the local workers' regular rates and expressly considered them to be part of their overall compensation package.

The Ninth Circuit's opinion is not groundbreaking, but it is a good reminder that we should take a hard look at our per diem and reimbursement policies and practices to determine if they should be included in the regular rate of pay or not. Considering that the FLSA provides for 100% liquidated damages and the recovery of attorney's fees, and that the Louisiana "payday" statute allows for the recovery of ninety day's penalty wages and attorney's fees, failing to properly calculate an employee's regular rate of pay can be a very costly error.

Get Ready Dealerships: Future Pay Day for Student-Athletes Coming Soon and This Will Benefit You

03 Feb 2021 00:00:00 -0800

For years, the NCAA has prohibited student-athletes from profiting from their name, image, and likeness (“NIL”). Examples of such prohibited activities include, but are not limited to, signing autographs, personal appearances, promoting a business, social media endorsements, and representations in video games. But student-athletes may soon be able to profit from their NIL.

The NCAA rule prohibiting student-athletes from profiting from their NIL is set to be revised, and by the Fall of 2021 student-athletes could start receiving money for their NIL from local businesses and parties seeking to use student-athletes for promotional activities and endorsement deals. This would allow automobile dealers to hire student-athletes to make personal appearances at dealerships and utilize student-athletes in advertising campaigns. For example, if this rule was in place in 2020, a car dealership could have hired Joe Burrow, while he was still enrolled at LSU, to make a personal appearance at the dealership or be the focus of a marketing campaign. Once passed, this rule will allow a car dealership to use the next big college star to promote their business. A draft of the rule has been released, giving us a glimpse of the final rule.

The proposed legislation allows student-athletes to do the following and use their NIL to:

Develop businesses and partake in business activities, including establishing camps and clinics and providing private lessons, as long as the student-athlete does not use school logos, colors, or marks.
Endorse products through commercials and appearances, and participate in other business adventures as long as the student-athlete does not use their school name, logo, colors, or other identifying information related to the school that they attend.
Participate in and be compensated for autograph sessions, as long as the session does not occur during a school event, and school logos or marks are not used during the session, including any apparel worn by the student-athlete.
Profit from crowdfunding efforts, such as GoFundMe, to raise money for non-profits or charities, family hardships, and educational experiences.

It’s important to note that if an automobile dealership engages a student-athlete to partake in a NIL activity, that the student-athlete in no way can use school marks, logos, and other identifying information to link a student-athlete to a specific school. Furthermore, student-athletes will be prohibited from profiting from the following NIL activities:

Profit from commercial activities involving a product or service that conflicts with current NCAA legislation and rules, such as sports betting or gambling.
Receive compensation for NIL activities that conflict with existing school sponsorship arrangements and deals or other institutional values.

The vote on the final NIL rule was scheduled to take place in January 2021, but has since been postponed. Instead, the NCAA Division I Council adopted a resolution to commit to modernizing the NIL rules. The NCAA did not provide any information as to when the NIL legislation will potentially be voted on but have stated that they remain dedicated to updating and revising the NIL rules.

While the final legislation remains to be seen, both student-athletes and businesses will see financial impacts from NIL activities and may have an increased need for legal and financial services. For example, if an automobile dealership intends to enter into a NIL arrangement with a student-athlete, the dealership should execute a contract between the parties setting out both parties' obligations to ensure they are protected. In addition, it can also help ensure that the arrangement does not violate any NCAA rules.

The proposed NIL legislation is going to change the world of collegiate athletics as we know it. If an automobile dealership is thinking about venturing into any NIL activities, it is important to seek advice from professionals who are familiar with the legislation and business impacts surrounding NIL decisions and arrangements. Breazeale, Sachse, and Wilson is monitoring the progress of the NIL legislation closely to be ready to provide any advice and guidance to student-athletes, business owners, and any other parties who are seeking to participate in NIL activities.

Management Update Newsletter Volume 10, Issue 2

02 Feb 2021 00:00:00 -0800

Environmental Justice: Origins, Background, and Site Selection Considerations - Part V: Considerations in Site Selection

29 Jan 2021 00:00:00 -0800

Environmental justice is not a new concept, but it is one that promises to receive renewed and vigorous attention in the Biden Administration. On his first day in office, Mr. Biden issued an Executive Order requiring the federal government to advance and prioritize environmental justice. Mr. Biden has selected a committed advocate as the head of EPA who has promised a pronounced emphasis on environmental justice concerns.

As a result, it is a good time to understand the legal underpinnings of environmental justice claims, the current EPA approach to investigating complaints regarding environmental justice, and steps that may be taken during site selection to minimize or eliminate serious claims regarding environmental justice.

The article contains five parts:

Part I: The Statute

Part II: The Executive Order and EPA’s Regulations

Part III: EPA Guidance – The 2000 Draft Revised Investigative Guidance

Part IV: EPA Guidance – The Toolkit

Part V: Considerations in Site Selection

Part V: Considerations in Site Selection

An applicant for an environmental permit faces any number of hurdles in gaining approval to construct and operate a facility or even expand an existing facility. Environmental justice concerns add a layer of complexity and uncertainty to capital investment decisions. It is almost certain that environmental justice claims will be made during the permitting process for major facilities. While each situation is different and the level of effort should be based on the facts and needs in each case, consideration can be given to taking certain steps before and during that process to reduce the likelihood of success of any such claims.

It is important to note that there is little to no fact-checking during the public comment process, meaning that opponents to a facility can make any number of unsupported claims. Many environmental justice advocates seem to believe that any facility located near or in the vicinity of a disadvantaged community is, on its own and regardless of the facts, a basis to make a claim regarding environmental justice. In other words, the mere location of the facility creates an environmental injustice. Additionally, claims of environmental injustice can be made tactically to galvanize opposition to the facility, again without regard to facts or based on the flimsiest of evidentiary bases. Notwithstanding the rhetoric, there are legal standards and factual thresholds, based on Title VI and the case law interpreting it and EPA’s own regulations and policies, that must be met to prove an environmental justice claim.

It is also important to remember that administrative or judicial review of environmental permits is usually confined to an administrative record. It is critically important that information developed to counter environmental justice claims be placed into the administrative record during the application and public comment process. Without supporting information in the record, the agency and permittee will not be able to rely on and reference the information in a decision document, the permit decision will lack valuable supporting evidence, and a reviewing tribunal or court will lack a basis to uphold the permit decision.

The obvious, but perhaps unrealistic, step to limit or eliminate environmental justice claims is to locate a facility in an area where no one lives in proximity to the proposed facility. These may be located in rural areas or within much larger tracts used or set aside for industrial purposes (sometimes called ‘mega-sites’). If such tracts are available, they should be given serious consideration. However, rural tracts may not meet the needs of the proposed facility, such as access to transportation infrastructure for raw materials or products, and even the larger tracts set aside for industrial purposes may have residents in some degree of proximity.

As a result, it is more likely than not that available industrial sites will be located in areas where some population resides in some degree of proximity. Determining if those sites are suitable for selection, from an environmental, economic, and environmental justice perspective, requires a searching inquiry that should begin prior to making any purchase commitments.

Site selection can be based on a number of considerations. Economic considerations, such as price, property size, local zoning or land use ordinances, proximity and access to transportation (pipelines, rail, truck, barge, or ship), and access to electrical infrastructure, are standard. Many companies make decisions based solely on these considerations.

However, environmental considerations are also important. For example, in Louisiana, an applicant and the environmental agency must give due consideration to environmental aspects of the project and an applicant cannot simply rely on business or economic considerations. See e.g., In re: Supplemental Fuels, Inc., 94-1596 (La. App. 1 Cir. 5/9/95), 656 So.2d 29, 39. Environmental considerations could include the attainment status of the area, the amount of wetlands on or adjacent to the property, the property’s location in a floodplain, the water quality standards for the waters receiving permitted discharges from the facility, the level of emissions, and the proximity of residents to the proposed facility.

Environmental justice has added a new level of complexity and considerations to site selection, especially as to the effect the environmental aspects of the facility have on any community in proximity of the proposed facility. In general terms, the demographics of the population in proximity to the proposed site can be obtained and the effects of “pollution” (such as generated waste, wastewater discharges, and air emissions) from the facility on that population can be analyzed.

In this regard, due regard should be given to the site selection team and its organization. Team members representing real estate, economics, and environmental professionals should be included, but, should the circumstances warrant it, consideration should be given to including counsel, along with a modeler, statistician, and toxicologist. The modeler, statistician, and toxicologist should be hired by counsel as consulting experts and should report only to counsel. This will assist in preserving the confidentiality of any communications from the modeler, statistician, and toxicologist regarding the effects of “pollution” on the community.

The demographics of the community in proximity, down to zip codes and census blocks, can be obtained from the US Census and other sources. Further, there may be reliable information available regarding actual impacts in a given area. For example, the Louisiana Tumor Registry compiles actual cancer incidences and mortality data for specific cancers at the census block level.

Once available data is gathered, the modeler, toxicologist, and statistician can evaluate potential impacts on a neighboring community. In these efforts, counsel and these team members should be guided by the legal and policy framework set out in the Draft Revised Investigative Guidance and Toolkit or any other guidance issued by the Biden Administration. In other words, their efforts and analysis should be shaped and guided by the “disparate impact” framework set forth in those documents.

The modeler can use air emission models to predict or identify off-site locations, or receptors, where air emissions are predicted to be located. For example, receptors can be located within the model at locations in and around the community to predict the level of emissions at that location or receptor based on the maximum levels of emissions estimated from the proposed facility. The toxicologist can utilize the predicted information from the model to determine the potential impacts on that population and the statistician can determine if that potential level of impact is statistically significant.

During the permit and public comment process, opponents are likely to insert their own information into the record to attempt to support their claims. Information such as the demographics of an area, the results of screening model runs, such as EPA’s Risk-Screening Environmental Indicators (RSEI) model, and data obtained from EPA’s EJ Screen have all been used. However, the RSEI model and EJ Screen have important caveats as to their use. For example, EPA notes that EJ Screen was developed merely to “highlight places that may be candidates for further review.” There is “uncertainty in the data” and that EJ Screen is “a screening tool and “not a detailed risk analysis.” See www.epa.gov/ejscreen/limitations-and-caveats-using-ejscreen. The applicant and its team should address and refute any comments and submissions utilizing this type of basic screening-level information.

The end result of the process should be a report that can be placed into the record for each potential site to support the decision to choose a particular site. If the analysis indicates that a particular site will not have a disparate impact, based on EPA’s own analytical framework, the site can be evaluated based on economic or environmental considerations. If the analysis indicates that a particular site will have or may have a disparate impact, that site can be ruled out, additional analysis performed to further define the extent of any impact, or perhaps there may be facts supporting a claim of substantial legitimate justification. In this way, the decision to choose a specific site has a viable and supported administrative record that should survive administrative or judicial review and should serve to counter or negate opposition and/or unsupported rhetoric in the record.

A Quick Overview of President Biden's Employment-Related Executive Orders to Date

29 Jan 2021 00:00:00 -0800

Since being sworn in on January 20, President Biden has issued a number of employment-related Executive Orders, with more to come. This is a brief summary of some of them.

1. Fighting Discrimination on the Basis of Gender Identity or Sexual Orientation

This EO expands federal protections against discrimination based on sexual orientation and gender identity. The Order instructs federal agencies to interpret all federal anti-discrimination statutes prohibiting sex discrimination in a manner to also protect against discrimination based on sexual orientation, gender identity, and gender expression.

2. Economic Relief Related to the COVID-19 Pandemic

In this EO the President directed the U.S. Department of Labor to consider clarifying that workers may refuse employment that will jeopardize their health or the health of someone else in their household yet still qualify to receive unemployment insurance benefits. This will obviously have the potential to encourage employees to refuse to report to work out of fear for their health or that of members of their households. This is yet another reason that employers should closely follow, and be able to prove that they are following, the CDC's guidance on limiting COVID-19 exposure in the work place.

3. Protecting the Federal Workforce and Requiring Mask-Wearing

This EO requires federal employers to require on duty federal employees, on-site federal contractors, and all persons in federal buildings or on federal lands to comply with CDC guidelines regarding face coverings, physical distancing, and other public health measures.

This EO also directs the Department of Health and Human Services to encourage mask-wearing across the country and create incentives for mask-wearing.

4. OSHA Mandates.

This EO requires the U.S Department of Labor to take several, significant actions. By February 4, 2021, the U.S. Department of Labor must:

issue revised guidelines on workplace safety during the COVID-19 pandemic;
consider whether mandatory emergency measures are necessary, such as mask-wearing in the workplace and if so, issue them by March 15, 2021;
review the COVID-19 enforcement efforts of the Occupational Safety and Health Administration (OSHA) and identify any short-, medium-, and long-term changes;
launch a national program through OSHA to focus on enforcement of the most serious violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles; and
create a multilingual outreach campaign to inform workers and their representatives (including labor unions) of their rights, with a focus on communities hit hardest by the pandemic.

5. Advancing Racial Equity and Support for Underserved Communities Through the Federal Government

The stated purpose of this EO is to improve opportunities for historically underserved communities. The Order requires all federal agencies to review internal equity and to deliver an action plan within 200 days, addressing unequal barriers to opportunity found within each agency's policies and programs. This Order also revokes former President Trump's Order limiting the implementation of diversity and inclusion training for federal government employees and contractors. Federal contractors should anticipate the federal government to implement requirements that they implement such training in the near future.

6. Protecting the Federal Workforce

This EO restores federal employees' collective bargaining power and protections. The Order directs federal agencies to "bargain over permissible, non-mandatory subjects of bargaining when contracts are up for negotiation," and requires the Office of Personnel Management to provide a report to the President with recommendations "to promote a $15/hour minimum wage for federal employees."

Considerations for Administrators and Health Care Providers in PreK-12 Independent Schools Regarding the COVID-19 Vaccination

29 Jan 2021 00:00:00 -0800

Congratulations. If you are reading this, you survived one of the worst weeks in our country’s history. Although the light at the end of the tunnel is getting brighter with each day we draw closer to the inauguration of our forty-sixth president, especially given that Twitter, Facebook and other social media platforms have silenced President Trump’s reckless speech, the ransacking of our nation’s capital complex by a group of marauding domestic terrorists during last week’s insurrection, coupled with the CDC’s release of its weekly COVID-19 statistics reporting the highest incidence of deaths, hospitalizations and new cases since the onset of the COVID-19 Pandemic in March, cast a dark pall on the return to in-person instruction following the winter break. Local evidence of this reality can be seen in our local public schools returning to online, distance learning, and large groups of independent school students continuing to be quarantined.

Notwithstanding these low points, last week did show us some semblance of a silver lining in the continued vaccination of individuals falling within the CDC’s immunization advisory committee’s Phase 1a priority group (health care workers and those in long-term care facilities). Additionally, as a result of the concerted lobbying efforts of an alliance of labor organizations and various trade groups representing teachers, principals and support staffs, the CDC’s immunization advisory committee recently categorized “those who work in the educational sector (teachers, support staff, and day care workers)” as “frontline essential workers such as fire fighters, police officers, corrections officers, food and agricultural workers, U.S. Postal Service workers, manufacturing workers, [and] public transit workers,” all of whom fall within Phase 1b of the CDC’s recommended COVID-19 immunization schedule.[1] Based on his news conference earlier today, Louisiana Governor John Bel Edwards appears to be following the CDC’s advice on vaccination scheduling.

In anticipation of greater access to the COVID-19 vaccine, last Tuesday’s (January 5^th) National Association of Independent Schools (NAIS) Trend Report explored the concept of mandating the vaccine for school employees, as well as students, and the many questions that arise if such mandates are adopted. The balance of this article will highlight and discuss some of the considerations that K-12 administrators should consider before implementing COVID-19 vaccination mandates.

Mandating the COVID-19 Vaccination for Employees (Administrators, Faculty and Support Staff)

Although Louisiana is an employment-at-will state (La. Civ. Code Arts. 2747, 2024) meaning that in general, either the employer or employee may terminate an employment relationship at any time and for any reason unless a law or contract exists to the contrary, the majority of most independent school employees (its faculty and administrators) work under relatively short-term contracts varying from 1-5 years in duration, which said contracts should be reviewed and modified appropriately prior to their next renewal should a school elect to mandate vaccinations for contact employees. For those employees working without a contract, Louisiana statutes and several court decisions have established important exceptions to the employment-at-will doctrine which should be reviewed with legal counsel. However, in either case, while an independent PreK-12 school may require employees to get the COVID-19 vaccination after taking certain steps, there exist certain exceptions such as disability and sincerely held religious beliefs, which an employee (or a student) may assert to avoid mandated vaccination. These exceptions will be discussed more fully herein.

Mandating the COVID-19 Vaccination for PreK-12 Students

In the absence of any federal mandate, compulsory student immunizations against vaccine-preventable diseases (“VPDs”) such as measles, mumps, rubella, diphtheria, tetanus, whooping cough, poliomyelitis meningococcal disease and others, are generally governed by state law under its inherent police powers, which in Louisiana, is found in LSA-R.S. 17:170, which subjects Louisiana students at certain ages to a schedule of compulsory immunizations set forth by the office of public health or the Louisiana Department of Health. While the CDC issues recommendations, it does not have the authority to mandate compliance with such recommendations.

In addition to the list of compulsory immunizations adopted by the office of public health or the Louisiana Department of Health, LSA-R.S. 17:170(A)(3) grants educational institutions and licensed day care centers the right “[a]t its own discretion and with the approval of the office of public health,” to “require immunizations or proof of immunity more extensive than required by the schedule approved by the office of public health.”

As in the case with employees, LSA-R.S. 170(E) allows a “student or his parent or guardian” to submit “either a written statement from a physician stating that the [immunization] is contraindicated for medical reasons, or a written dissent from the student or his parent or guardian is presented.” The form statement provided by the LDOE reads:

STATEMENT OF EXEMPTION FROM IMMUNIZATIONS

Under the Louisiana Revised Statutes 17:170 Sec E, I _____________, parent/guardian of ____________________, hereby claim exemption from the immunization requirements for my child due to medical, religious, or philosophical reasons.

I understand that in the event of an outbreak of a vaccine-preventable disease at the location of the educational institution or facility the student attends, the administrators of the educational institution or facility, upon the recommendation of the office of public health, may exclude the student from attendance until the incubation period has expired or I present evidence of immunization.

Name of School: _______________________________________________

Signature of Parent/Guardian: _____________________________ Date________

Signature of Authorized School Representative: ________________ Date ________

You will notice that the second paragraph of the exemption statement contains a reference to instances when there is an “event of an outbreak of a vaccine-preventable disease” administrators of the educational institution “upon the recommendation of the office of the public health, may exclude the student from attendance until the incubation period has expired or [the student or guardian] present evidence of immunization.”

The second paragraph of the exemption statement comes almost verbatim from LSA-R.S. 17:170(F) which reads:

“In the event of an outbreak of a vaccine-preventable disease at the location of an educational institution or facility enumerated in Subsection A of this Section, the administrators of that institution or facility are empowered, upon the recommendation of the office of public health, to exclude from attendance unimmunized students and clients until the appropriate disease incubation period has expired or the unimmunized person presents evidence of immunization.”

So, notwithstanding a student’s or an employee’s bona fide exemption, in the event of an “outbreak” a school, with the recommendation of the office of public health, may exclude a student or employee during the incubation period of the VPD that is in outbreak. The second paragraph of the exemption statement merely brings this provision of the law to the student, parent or guardian’s attention, and requires that the same acknowledge it.

As most of you will agree, the term “incubation period” seems to be a moving target, that has been modified a few times during this pandemic. What makes pinning down a specific date of exposure, length of incubation, and length of time an individual who is exposed remains infected or contagious so problematic for PreK-12 schools is the fact that while it has been rare for children to become severely ill, though they can and do, school-aged children have been identified to more likely be silent spreaders who may not know they are infected because of the high incidence of asymptomatic symptoms in them. As we have seen locally, this is exacerbated as many independent school students have not heeded the guidelines and warnings about social distancing, particularly over the winter break.

With today’s acceleration of vaccination schedules, by now, just as pediatricians and public health officials have experienced, PreK-12 school administrators and staff are likely feeling the onslaught of parents asking the million dollar question: “Will children be required to get vaccinated against COVID-19 to remain in school?”

However, asking that question now might be putting the cart before the horse. According to Randi Weingarten, the president of the American Federation of Teachers, the questions we should be asking right now are “Is the vaccine effective? Is it going to be free? Is it widely accessible?

The answer to these questions is complicated and not as straightforward as parents would probably like, especially parents of PreK-12 independent school children who historically have better and more current information than the general public. Not only does it depend on where families live, as different states have difference vaccination requirements for schools, but it also depends on pharmaceutical companies enrolling more children in their trials in order to amass enough date to show that the vaccines are efficacious and safe in children.

As it stands today, the Pfizer vaccine approved for emergency use is authorized for use in people 16 years old and up, while the approved Moderna vaccine is authorized for use in individuals 18 and older. Pfizer currently has children as young as 12 years old enrolled in its trials, and public health officials expect younger children to gain authorization as early as March. Although information on this subject changes daily, the conventional wisdom of many pediatric physicians is that if they are able to vaccinate kids by mid to late spring that it will become a mandated vaccine for schools in the fall, although again, this is ultimately a decision of the Louisiana Department of Health.

Because at the time of this writing, compulsory COVID-19 vaccinations for employees and students is not mandated in Louisiana schools, including PreK-12 independent schools, now might be the right time to discuss this issue with your school’s leadership, including a discussion of reserving the right to demand that administrators, faculty, support staff, and students be vaccinated at some time in the future in your enrollment agreements and faculty contracts. This is also the appropriate time to review your respective student handbooks and employee manuals and revise them accordingly to reflect the COVID-19 protocols that your institution has adopted. This discussion o will be particularly important if the State of Louisiana does not add the Coronavirus to its list of VPCs that require immunization prior to attending in-person learning.

In closing, I would be remiss if I did not mention that compulsory vaccinations, separate and apart of the COVID-19 vaccination, are still very controversial in some circles. Even with 23,369,732 documented cases and 389,621 deaths in the United States (352,939 cases and 7,971 deaths in Louisiana) as of today, this “anti-vaxxer” movement seems to have been bolstered given the manner (the FDA’s emergency authorization process) in which the current COVID-19 vaccines were approved. This is another reason why Prek-12 independent schools should have this discussion sooner than later. Because each institution has its own culture, each school community may have very different perspectives on compulsory vaccinations, especially in children. In the short-term, you will not be able to answer all the questions presented to you, but at least you will have initiated a civil discussion.

For more information or assistance with questions surrounding compulsory COVID-19 vaccinations in your institution, please feel free to contact:

Justin B. Schmidt, Partner
Breazeale, Sachse & Wilson, L.L.P.
909 Poydras Street, Suite 1500
New Orleans, Louisiana 70112
Telephone: (504) 584-5466
Mobile: (504) 451-6567
Facsimile: (504) 584-5452
Email: justin.schmidt@bswllp.com

[1] CDC COVID-19 website updated January 8, 2021, reporting the CDC’s immunization advisory committee’s recommendations of December 22, 2020.