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What I've Been Reading This Week


I am not sure which topic will be more relevant (or time sensitive) to readers this week:  Tips on how to deal with a potential coronavirus issue in the U.S. (in regard to managing/preparing for things in the workplace) or how to plan for the upcoming March 16th implementation of the Labor Department's joint employer test.  In talking earlier in the week with a loyal reader of the blog, I get the sense that both articles will likely prove useful in the coming weeks.

As always, below are a couple articles that caught my eye this week.


Planning For How the Coronavirus Will Impact Workplaces

On Monday, Mark J. Neuberger over at Foley Lardner LLP published an article in which he cautioned employers to not panic, but rather plan for how the coronavirus might impact workplaces in the coming weeks or months.  With the U.S. Centers for Disease Control and Prevention ("CDC") announcing earlier this week that it is inevitable that U.S. citizens will contract the coronavirus here at home (which could lead to disruptions to workplaces, travel, and the overall economy), readers have likely started to pay closer attention to the matter.  Mark's article provides a few helpful suggestions for readers, including recommending that employers ban all business travel to China (where the coronavirus has originated), designating someone in the workplace to check the CDC to monitor the spread of the coronavirus, and creating a plan for how to deal with the coronavirus (should there be a major outbreak) in regard to allowing employees to work from home, telecommute, etc.


Democratic Presidential Candidate Mike Bloomberg to Release 3 Women From Confidentially Agreements

Readers will recall that Democratic Presidential candidate Mike Bloomberg has been under fire in recent weeks after it became more well known that his company, Bloomberg LP, has used confidentiality agreements to prevent accusers of his company from speaking out about alleged harassment and discrimination issues.  During another debate last week, Senator Elizabeth Warren went after Bloomberg for “hiding” behind these confidently agreements (and even got him to admit that he did not know how many confidentiality agreements were actually in place.)  Following that debate and the continued blowback Bloomberg has received, he announced that he would release 3 women from the confidentiality agreements and would not use these confidentiality agreements at his company going forward.  Will that resolve the matter?  Perhaps, but time will tell.



Many employers and HR professionals likely deal with Family Medical Leave Act ("FMLA"), Americans with Disabilities Act ("ADA"), and Uniformed Services Employment and Reemployment Rights Act ("USERRA") matters on a routine basis.  At the end of January, a group of attorneys from Verrill's Labor & Employment Group and Employee Benefits & Executive Compensation Group hosted a seminar to delve into each of these Acts.  Attached is a copy of their PDF handout, which provides a useful (and concise) overview of each of these Acts and some of the nuances of each.  Even for the most seasoned employer or HR professional, this is a good refresher that is worth a quick read.


Coming March 16: Labor Department Issues Four Factor Test to Determine Joint Employer Status

In a few short weeks, the Labor Department's four factor test to determine joint employer status will take effect.  Note, this recently announced joint employer final rule is the first amendment to the Labor Department's joint employer regulations in nearly 50 years.  While the National Labor Relations Board weighed in on the matter earlier this week (and the Equal Employment Opportunity Commission is expected to do so as well), the Labor Department's joint employer test will only apply to Fair Labor Standards Act matters.  This article from JDSupra does a good job breaking things down into bite size pieces (as does the publication of the final rule in the Federal Register back in January.)


NLRB Board Member’s Potential Conflicts of Interest Cited in Initial Opposition to Joint Employee Rule

It is only fair that if we made a special note of the Labor Department’s new joint employer rule that we give a nod to the NLRB’s too, right?  As noted above, earlier this week, the NLRB announced its new joint employer rule.  It did not take long for opposition to mount, with a progressive group yesterday calling for a probe into whether Board Member William Emanuel should have participated in the formation of the joint employer rule (and whether his potential conflicts of interest improperly swayed the NLRB’s rulemaking.)  As Bloomberg writer Hassan Kanu writes, this is likely the opening salvo into what could be a long and protracted legal battle against the new joint employer rule.  Readers might recall that there had previously been a bit of a tussle over Board Member Emanuel’s involvement in an NLRB decision which amended a President Barack Obama era NLRB (employee/labor friendly) joint employer standard.  That conflict of interest spat resulted in the NLRB vacating the decision that Emanuel participated in...and ultimately led to the NLRB engaging in the rulemaking process to produce the new joint employer rule announced earlier this week.  (Talk about taking the long way to finally produce the desired joint employer rule.)

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