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If You Are a Fan of Paid Leave, This Is the Year for You

03 May 2021 00:00:00 -0800

In his recent address to Congress, President Biden touted two plans that would require employers to provide employees with paid leave. Here are the highlights:

American Families Plan

You can read the entire Plan summary here. https://www.constangy.com/assets/htmldocuments/American%20Families%20Plan.pdf The section addressing the paid leave provisions can be found on pages 8 and 9.

If the plan passes, when it is fully phased in employees would be entitled to take up to 12 weeks of paid leave per year for several reasons:

The employee's own illness
The illness of a family member
A new child
Military deployment of a family member
Treatment for or recovery from sexual assault, stalking, or domestic violence
Bereavement

Sounds a lot like paid FMLA leave to me. We do not yet know how the AFP will impact the FMLA.

The Plan is not clear about how much an employee would be paid. Right now, it appears as if employees would receive between 66% and 80% of their average weekly wages, with a maximum of $4,000 per month.

This Plan is likely to cost in excess of $500 Billion over 10 years.

This Plan will almost certainly pass if the Democrats are able to introduce it using the budget reconciliation process, which only requires a simple majority to pass the Senate. If they cannot use the budget reconciliation process, it is not as likely to pass in its current form.

Healthy Families Act

The HFA would require employers with 15 or more employees to provide employees with seven days of paid sick leave per year for specific reasons:

Physical or mental illness, injury, or medical condition
Obtaining a diagnosis, care, or preventive care
Attendance at required meetings at a school which the employee's child is attending because of a medical condition or disability
Obtaining various types of assistance related to sexual assault, stalking, or domestic violence

You can read the entire 48 page Bill here: https://delauro.house.gov/sites/delauro.house.gov/files/documents/HFA%20117.pdf

Employer take away: Neither the American Families Plan nor the Healthy Families Act are yet law, so you do not have to take any immediate action. But, keep an eye out for further updates as they each make their way through the legislative process. If either of them pass in any form, it will require us to quickly revise our forms and practices.

Management Update Newsletter Volume 10, Issue 5

01 May 2021 00:00:00 -0800

Houston- We Have a Problem: Lessons to Learn from Elon Musk on the National Labor Relations Act and Social Media

30 Apr 2021 00:00:00 -0800

With the current White House Administration’s well-known, pro-union stance and the more restrictive position the National Labor Relations Board will likely take towards employers over the next four years, employers must learn lessons wherever possible to avoid National Labor Relations Act violations.

The National Labor Relations Act (“NLRA”) may not be rocket science, but even Tesla CEO and Space X founder Elon Musk can use some guidance from mission control to avoid turbulence from its application. As part of a spate of violations of the NLRA by Tesla, on Thursday March 25, 2021, the National Labor Relations Board (NLRB) upheld a 2019 ruling that found that a 2018 tweet made by Musk violated the NLRA by threatening to revoke benefits from Tesla employees if they joined a union. In the midst of the United Auto Workers (“UAW”) ongoing union organizing efforts of Tesla’s workforce, Musk posted the following message on his widely-followed Twitter account: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues & give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”

After the UAW filed charges against Tesla, the NLRB found that “Musk’s tweet can only be read by a reasonable employee to indicate that if the employees vote to unionize that they would give up stock options. Musk threatened to take away a benefit enjoyed by the employees consequently for voting to unionize.” As part of its ruling, the NLRB ordered Tesla to delete Musk’s Twitter post and required Tesla to post a detailed notice of its labor violations for its workers at its Fremont, California plant. If the mission was to land a successful union negotiation, this ruling is a sign of a bumpy ride.

The NLRA vests employers with certain rights to voice their opinions on unions to their employees. However, the Act also limits what employers can do in response to union organizing efforts. Specifically, employers cannot:

Threaten employers based on their union activity;
Interrogate workers about their union activity or sentiments;
Make promises to employees to induce them to forgo joining a union; or
Engage in surveillance on workers’ union organizing efforts.

Employers should provide ongoing supervisor training on the intricacies of the NLRA’s rules, including whenever union organizing efforts are initiated. Employer violations of the NLRA can lead to fines and arguably more importantly, severely undermine the employees’ perception of the employer.

The NLRA also protects employees’ rights to make certain statements on social media, regardless of whether union organizing efforts are occurring. Employee statements about wages, hours, or working conditions are protected under the Act, and this protection has been broadly interpreted by the NLRB in favor of employees. Employers must avoid policies that prevent employees from making such protected statements on social media. This is especially true considering the current White House Administration’s pro-union stance that it and the National Labor Relations Board will maintain for at least the next four years.

Employers should have their social media policies reviewed and train their supervisors and managers to minimize the risk of NLRA violations, particularly in light of increased organizing efforts throughout the United States.

Three for One Friday!

30 Apr 2021 00:00:00 -0800

Congratulation! For today only I am having a special three for one deal. For the low low price of nothing, you get three of my hot-off-the press updates.

1.EEO-1 Reports are due by July 19, 2021.

This is more of a reminder. If you are an employer who is required to file an EEO-1 Component 1 report for 2019 or 2020, you must file both reports with the EEOC by July 19, 2021. Don’t wait too long or forget to file for 2019 if you are required to do so.

2.The EEOC has filed suit against Walmart in Chicago for failing to provide a hearing-impaired applicant with an American Sign Language (ASL) interpreter.

This is one of a series of lawsuits that the EEOC has filed against large employers, including McDonald’s, as part of its ongoing Strategic Enforcement Plan aimed at eliminating barriers to hiring disabled applicants. The key here is to know what your obligations are to accommodate disabled persons in the application and hiring process and to make sure that everyone involved in the process knows what to do and say. It only takes one untrained assistant to tell a hearing-impaired applicant that you don’t provide ASL interpreters to trigger a lawsuit.

I am currently handling several suits of this type filed by advocacy groups who send in “testers” posing as disabled applicants. They claim to be hearing impaired and ask if you will provide an ASL interpreter to translate as they go through the application process. If you say anything other than “yes” they file suit. Be aware, be prepared, and train your people on how to handle these situations.

3. President Biden Raises Minimum Wage to $15 for Federal Contractors.

On April 27, 2021, President Biden signed an Executive Order requiring all Federal Contractors and Subcontractors to pay workers on covered contracts a minimum of $15 an hour starting January 30, 2022. This is an increase from the current $10.95 minimum wage for Federal Contractors. The Order requires the Secretary of Labor to issue regulations implementing this EO by November 24, 2021.

If you are a Federal Contractor or Subcontractor, you should review your service contracts and subcontracts to ensure that they include a clause authorizing price increases resulting from direct labor costs caused by the increased minimum wage. These types of clauses usually allow for the recovery of accompanying increases in social security, unemployment taxes and workers’ compensation insurance costs, but they do not allow price increases to recover increased general and administrative costs, overhead, or profit.

Is the LMVC the Exclusive Jurisdiction To Hear Dealer Complaints With Their OEM'S?

22 Apr 2021 00:00:00 -0800

As Federal jurisprudence currently stands, licensed franchisees (dealers) cannot sue manufacturers in Federal District Court for alleged violations of the Louisiana Motor Vehicle Franchise Act (“LMVFA”) (La. R.S. 32:1251, et seq.). The Louisiana Motor Vehicle Commission (the “Commission”) has, according to these cases, exclusive jurisdiction over these dealer claims. However, La. R.S. 32:1261A(1)(v) and (vi) provides:

It shall be a violation of this Chapter:

(1) For a manufacturer, a distributor …

* * *

(v) … to require any controversy between a dealer and a manufacturer to be referred to any person or entity other than the commission, or duly constituted courts of this state or the United States . . .

(vi) To waive the right to a jury trial.

Given these very clear statutory prohibitions against manufacturers, including preserving a dealer’s right to seek relief in the duly constituted courts of this state or the United States, and to have a jury trial in either one of those courts, it is incredible that the decision of Crescent City M Dealership d/b/a Crescent City Mazda v. Mazda Motor of America, Inc., issued on September 22, 2000, and then affirmed by the Fifth Circuit in 2001, determined that dealers do not have a private right of action under the LMVFA to assert claims in court against manufacturers. The court contrasted the LMVFA with the Louisiana Unfair Trade Practices Act (“LUTPA”) that specifically authorizes a private right of action under that Act. Before this decision, it was generally understood that the Commission and courts of appropriate jurisdiction had concurrent jurisdiction. Often, courts would voluntarily stay their proceedings pending the exhaustion of remedies before the Commission. The above case changed that, and since then, dealers’ suits against Honda, Volvo Trucks, Volkswagen, Nissan, GM and Hyundai have all been dismissed by federal district courts.

If one looks at La. R.S. 32:1259 and 1260, there is a delineation of the powers of the Commission. It can fine licensees who have violated the rules and regulations, and it can ask a district court for injunctive relief, stopping some allegedly improper activity. There is no provision in the LMVFA that a dealer or manufacturer can seek damages for violations of the Act before the Commission, and courts have routinely recognized that the Commission is without jurisdiction to award damages.

The opinions issued in the Crescent City Mazda line of cases offer a little more insight than did the original Mazda opinion. A dealer does have a private right of action against a manufacturer if the dealer’s claim arises from alleged violations of the LMVFA, and the complaint is filed at the Commission. Further, if the dealer’s grievance against a manufacturer is based on other causes of action, i.e., breach of contract, detrimental reliance, negligence, unjust enrichment, a LUTPA violation, or a violation of federal dealer protection laws, a federal court will exercise its jurisdiction to hear those claims, while at the same time, dismiss the included LMVFA claims for lack of standing. When these distinct causes of action seek monetary damages, certain courts have cited, as another reason to exercise jurisdiction, the fact that the plaintiffs are seeking a remedy (damages) that the Commission cannot provide. Finally, if a claim is couched as something other than a LMVFA claim, but is indistinguishable from or directly related to a LMVFA claim, a court may dismiss it and direct the dealer back to the Commission.

The question remains as to whether a federal court will deny standing to a dealer who sues for damages based on a ruling by the Commission that found a manufacturer in violation of LMVFA laws. Because the Commission lacks the authority to award damages, it would be unconscionable for a court to deny standing to a dealer in this situation. As of now, this scenario has yet to be tested. Neither has a court spoken on the applicability of the Crescent City Mazda holding to suits filed by consumers against dealers based on alleged violations of the LMVFA. There is also no case law discussing suits by manufacturers against dealers alleging violations of the LMVFA. If the Act does not provide a private right of action for dealers to sue thereunder in a federal court, presumably, there is no private right of action in favor of manufacturers and consumers to sue either.

Remarkably, the above-quoted provisions of the LMVFA, that prohibit a manufacturer from preventing a dealer from filing suit in a court of law or from requesting a jury trial, have not been cited in these opinions as arguments by dealers to avoid dismissal of its suit. Clearly, these statutes envision the dealer’s right to file suit in court and to get a jury trial, or in other words, have a private right of action under the LMVFA. The Crescent City Mazda opinion has created an absolute bar to dealer access to courts, when the statutory scheme of the Act never intended one.

Louisiana Board of Tax Appeals Rules That Chemicals Qualify for Pollution Control Sales Tax Exclusion

22 Apr 2021 00:00:00 -0800

The Louisiana Board of Tax Appeals issued an important ruling relating to pollution control devices or systems. For at least two decades, the relevant agencies did not consider chemicals to meet the definition of a pollution control device or system and thus chemicals did not qualify for the applicable exclusion from sales tax. However, the decision, issued on April 14, 2021, found that chemicals used for pollution control, which otherwise meet the terms of the exclusion, could qualify and provide a refund for sales taxes paid.

For sales tax purposes, the term “sale at retail” does not include the sale of a "pollution control device or system." The statutory definition is “any tangible personal property approved by the Department of Revenue and the Department of Environmental Quality and sold or leased and used or intended for the purpose of eliminating, preventing, treating, or reducing the volume or toxicity or potential hazards of industrial pollution of air, water, groundwater, noise, solid waste, or hazardous waste in the state of Louisiana.” La. R.S. 47:301(10)(l). The regulatory definition is similar but with a relevant difference: “any one or more pieces of tangible personal property which is intended and installed.” LAC 61:I.4302, emphasis supplied.

Monsanto Company operates a facility in Luling, Louisiana (the Luling Facility). Like many industrial facilities in Louisiana, Monsanto utilizes sodium hydroxide, or caustic, to neutralize and control the pH of acidic waste streams. Monsanto uses caustic in its air scrubbers, which are pollution control devices designed to neutralize acid gases. In fact, Monsanto’s air permit mandates that caustic be used in this manner. Monsanto also uses caustic to control the pH of its wastewater prior to discharge and deepwell injection. Again, Monsanto’s discharge and injection permits mandate that the pH be maintained above or within specific levels prior to discharge or injection.

The caustic is received at the Luling Facility in liquid form and placed it into storage tanks. From this central location, the caustic is hard piped to the various scrubbers, tanks, and other equipment. Sensors in each unit determine the pH of the materials and caustic is automatically pumped to the unit to adjust the pH when and as needed.

During an internal tax review, it was determined that Monsanto had paid over $3.9 million in sales taxes on its caustic purchases between 2012 and 2014. Monsanto applied for a sales tax refund. However, when the Louisiana Department of Environmental Quality (LDEQ) received Monsanto’s application for review, it stated that it “does not consider chemicals as parts of pollution control systems … because they do not constitute ‘tangible personal property … installed.’” Based on this, the Department of Revenue (Revenue) denied the sale tax refund and Monsanto appealed to the Board of Tax Appeal (BTA).

In its Order with Written Reasons, the BTA found that Monsanto “is entitled to the claimed refund.” The BTA, noting that it must construe exclusions in favor of the taxpayer and that it does not give deference to LDEQ’s interpretation of the law, disagreed with LDEQ’s “interpretation of the law related to the meaning of ‘installed.’” The term ‘installed’ is not defined in the statute, regulation, or any guidance from LDEQ or Revenue. Finding that the ordinary meaning of the word ‘installed’ is “to set up for use or service,” the BTA found that Monsanto installs the caustic as it sets it up in the storage tanks, uses caustic to neutralize acidic waste, and does so for use in its pollution control scheme. Therefore, Monsanto’s use of the caustic is “within a common and approved definition of 'install.’”

Taxpayers still have a narrow window in which to seek refunds even though the exclusion was partially suspended from July 1, 2016 through June 2018 and fully suspended between July 2018 until 2025. Taxpayers that have paid sales taxes on chemicals, such as caustic, and which otherwise meet the terms of the exclusion have two opportunities to claim a refund: taxpayers may be entitled to a refund for periods from December 2017 through June 30, 2018 if claimed before December 31, 2021 and taxpayers currently under state audit may be able to claim additional periods prior to December 1, 2017 if the audit is still open.

My Employees Have Been Jabbed Twice, Now What?

15 Apr 2021 00:00:00 -0800

I have been getting a lot of questions about the CDC’s stance on mask use after being fully vaccinated, and whether or not employers should continue to require employees who have been fully vaccinated to wear masks. The short answer is: It depends. Below is an excerpt from FAQs published by the CDC last Tuesday the 13^th that will shed some light on this issue.

Do I need to wear a mask and avoid close contact with others if I have gotten 2 doses of the vaccine?

It depends. For now, fully vaccinated people can gather indoors without physical distancing or wearing masks with:

Other people who are fully vaccinated

Unvaccinated people from one other household, unless any of those people or anyone they live with has an increased risk for severe illness from COVID-19.

Until more is known, fully vaccinated people should continue to wear masks and stay 6 feet apart from other people in other settings, like when they are in public or visiting with unvaccinated people from multiple households.

This should get you to the CDC’s COVID-19 FAQ page. https://www.cdc.gov/coronavirus/2019-ncov/vaccines/faq.html

Keep in mind LSA-R.S. 9:2800.25 when deciding if you are going to continue to require your employees to wear masks. You haven’t memorized LSA-R.S. 9:2800.25? Here are the relevant parts:

No natural or juridical person, state or local government, or political subdivision thereof shall be liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance or provision of the person's, government's, or political subdivision's business operations unless the person, government, or political subdivision failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations and the injury or death was caused by the person's, government's, or political subdivision's gross negligence or wanton or reckless misconduct. If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, government, or political subdivision shall substantially comply with any one applicable set of procedures.

An employee whose contraction of COVID-19 is determined to be compensable under the Louisiana Workers' Compensation Law shall have no remedy based in tort for such exposure against his employer, joint employer, borrowed employer, statutory employer, any other person or entity listed in R.S. 23:1032(A)(1)(b), and any other person or entity potentially liable pursuant to the Louisiana Workers' Compensation Law unless the exposure was intentional as provided by R.S. 23:1032(B).

This is a link to the Act. https://legis.la.gov/Legis/Law.aspx?d=1187405

We strongly encourage you to check the CDC web site daily and to follow its latest guidance and recommendations.

Get Ready to Submit Your EEO-1 Component 1 Data to the EEOC

06 Apr 2021 00:00:00 -0800

On March 29, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that qualifying employers will be required to file 2019 and 2020 workplace diversity data, (aka EEO-1 Component 1) between April 26, 2021 and July 19, 2021. Qualifying employers, generally those with at least 100 employees and federal contractors with 50 or more employees, should begin to prepare their filings.

You may recall that in May of 2020 the EEOC announced the delay of the 2019 EEO-1 Component 1 data collection in light of the COVID-19 public health emergency. Consequently, EEO-1 filers will have to submit data for both 2019 and 2020 in this year’s data collection. The EEOC has indicated that more information and resources regarding updates on the data collection will be available on a new dedicated website and that they will provide a Filer Support Team to respond to inquiries. You can vising this site for additional information: https://eeocdata.org/

Management Update Newsletter Volume 12, Issue 4

01 Apr 2021 00:00:00 -0800

Student-Athlete Payday—LA Senator Connick Proposes Legislation Allowing for Compensation of Collegiate Student-Athletes

01 Apr 2021 00:00:00 -0800

Senator Patrick Connick of Marrero has pre-filled a bill for the 2021 Louisiana Legislative Session that will allow collegiate athletes to receive compensation for their Name, Image, and Likeness. If this legislation passes, student-athletes in Louisiana will be able to be paid for endorsement deals, personal appearances, and other business endeavors which they have been previously prevented from profiting from. BSW is closely monitoring the bill and will provide updates as the legislation moves through the 2021 session. To see a full version of the proposed bill, visit the following link: http://legis.la.gov/Legis/ViewDocument.aspx?d=1205487.