By Christina Jaremus and William Hampshire

Seyfarth Synopsis: Seyfarth Shaw recently hosted a webinar entitled The Future of the World of Work. During part one of this special two-part series, Futurist Ross Dawson, who is one of the world’s leading thinkers on the future of work, discussed the big trends shaping the future of workforces. As a conclusion to the webinar, we compiled the highlights of Ross’s presentation—undoubtedly, the concept of flexibility was a thread throughout.

  1. Accelerating to the future of work

The COVID-19 pandemic fundamentally changed society and the working world as we know it.  While discussions about the future of work were already taking place, the pandemic has significantly accelerated the timeframes and has shifted the assumptions of work that we had in the past.

While limitations still remain and cannot be fixed overnight, according to Dawson, the pandemic has presented an opportunity for every organization to “create their own future of work, which is unique to their organization, their industry, and whatever it is they aspire to.”

  1. Technology will compliment human interaction

Leveraging technology can help companies create a collaborative culture while still allowing employees the flexibility to work outside of a traditional office space. Virtual video conferencing platforms allowed companies to survive during the pandemic, and the technology is continuously improving.

Dawson emphasizes the importance of data and explains that just as babies learn, machines learn from data. Now that we can gather more and more data from individuals everywhere, AI can exceed human performance, and in areas such as customer service, machines have already successfully taken on the role of humanlike representatives.

  1. Power shifting to individuals

As Dawson puts it, “society is fundamentally changing,” that is “power is shifting from institutions to individuals.” In evaluating what makes a company a valuable place to work, more than ever, workers have greater expectations of flexibility, autonomy, diversity, and privacy.

To draw talent, companies must balance the benefits necessary to make workers feel engaged, while simultaneously demanding and measuring high performance, especially for remote workers.

  1. Changes in the structure of business and the nature of work

Dawson explains, “the structure of business is changing, and this has come from the rise of the network economy.” In the past, businesses created and sold products and services, but now value is created by platforms connecting others outside the organization—whether that is arranging transportation, streaming movies and music, or more recently providing digital freelance work, management consulting, forensic analysis, and crowdsourcing innovation research and development. Rather than the work drawing in the talent, we are seeing a shift to the work going to wherever the talent is. All of this drives social change and shapes the economy.

A “negative” often associated with AI is that it will lead to mass unemployment. As Dawson points out, however, new technologies have always in the past created more jobs than they’ve destroyed, and as workplaces take advantage, humans have to leverage the three things that machines cannot offer: creativity, expertise, and relationships. We need to design work in a way that plays on these points.

  1. Distributed work is the new normal

Recent studies suggest only 10% of companies foresee a return to the 5-day, in-office model. While there is value created in people being physically present in the same place to engage and collaborate, Dawson says companies should embrace “distributed work.” This term is preferred to “remote work” as it suggests a greater level of inclusion—all employees, and not just those in the office, should be heard.

  1. Leadership steps to realize the potential benefits

Dawson identified four steps leaders should be taking:

  • Design a clear vision of your future of work.
  • Choose how you will integrate in-person and distributed work.
  • Evolve fluid, flexible structures.
  • Develop uniquely human capabilities in symbiosis with AI.

A lot of what happened with the pandemic was thrust upon companies. The real benefits will come through employers thinking carefully about what they want their own future of work to look like. The most successful organizations will take lessons learned by the pandemic and the availability of advanced technology to achieve a workplace “nirvana” of sorts—leveraging machine learning and automation to embrace a shift from rigid to fluid work—leaving humans with the role of exercising creativity, applying expertise, and building relationships.

This will not be an overnight change, and will need planning, not least around the legal  challenges this will present. However, what is clear is that employers that have the capability to offer this flexibility and autonomy, but nevertheless refuse to provide it, will be left behind.

A recording of the full presentation, The Future of the World of Work, is available here. Part two, which will be held in October, will focus on the legal implications and issues that organizations should consider as workplaces evolve.

By Marjorie Culver and Caitlin Lane

Seyfarth Synopsis: As employers around the globe consider what their organization’s post-pandemic return to work will look like, one thing is certain: hybrid and remote work arrangements will be part of the new normal.

Creating a sustainable flexible work environment requires consideration of nearly every facet of business operations. From HR and real estate, to health and safety and diversity initiatives, employers are faced with a multitude of issues to consider when developing a hybrid and remote framework that meets market demands, sustains company culture, and is legally compliant.

In fact, Seyfarth’s recent Future of Work pulse survey found that navigating remote and hybrid work was the number one concern in-house legal and business leaders have coming out of COVID-19.

Below are six tips to help guide global employers through this emerging area:

  1. Properly document working arrangements.

As employers begin to formalize hybrid and remote working arrangements, documenting the agreed upon location(s) of work is not only best practice, but may be legally required.

In particular, outside of the US amendments to existing employment contracts may be necessary, or in some cases, entirely new agreements may be required. For instance, in just the past year and a half, new telework/remote working laws have been passed in Spain, Colombia, and Mexico, among others, which impose specific employment documentation obligations in relation to the working arrangement.

For new employees, consider incorporating hybrid or remote working language into offer letters and employment contracts. This not only ensures legal compliance where necessary, but also clarifies working arrangement expectations with new hires from the start.

  1. Tread carefully when considering requests for cross-border remote working.

While the concept of being able to work from anywhere in the world may be appealing to employees, employers should be very cautious when considering such requests. Cross-border working raises a host of issues—from corporate and income tax implications, to work permit and data privacy considerations.

From an employment perspective, cross-border remote work can implicate the labor and social security/insurance remittance laws of both localities, potentially leaving an employer at risk of claims or fines if the proper laws have not been considered. The ability to protect intellectual property and confidential information can also be impacted where there is a dispute about which law applies to the employment relationship. To learn more about managing cross-border remote working, see our previous alert here.

  1. Understand the employer obligations regarding expenses for a home-working arrangement.

Employers must not only consider the business cost impact of hybrid and remote working, but also need to understand the legal obligations relating to expenses and equipment. In particular, employers should be aware of what home-working expenses must be borne by the employer and what expenses must or can be reimbursed. Similarly, an understanding of whether home office equipment must be provided is also essential.

The permissibility of stipends and allowances, as well as their impact on other compensation elements, should be taken into consideration. In certain jurisdictions, a stipend or allowance may need to be included in the calculation of other compensation such as bonuses, vacation pay, and severance, increasing overall costs.

  1. Evaluate occupational health and safety issues that are specific to hybrid and remote work.

Working from home, whether on a fully remote or hybrid basis, introduces new and distinct health and safety considerations for employers. As a starting point, consider the legal obligations. For instance, some countries have health and safety requirements that are specific to the remote working environment such as conducting audits of the workspace or providing certain equipment.

Then, consider other health and safety issues such as mental health and employee wellbeing from the remote working perspective. While there may be health and wellbeing initiatives in place for office workers, consider how these initiatives translate to remote workers. For example, remote workers may be more prone to feelings of isolation than those in the office. As such, mental health initiatives need to adapt and evolve to reflect the wellbeing issues that employees may face in a flexible working environment.

  1. Ensure diversity, equity, and inclusion efforts consider hybrid and remote working populations.

Diversity, equity, and inclusion efforts remain a top priority for many employers. As flexible working arrangements become a more standard offering, DEI policies and practices must take into account the impact of hybrid and remote working. For example, consider how mentoring and leadership training programs are best structured and delivered to hybrid and remote workers and ensure opportunities for all employees, irrespective of their work arrangement.

  1. Embrace hybrid and remote working as a recruitment tool.

Employees want flexibility and in the post-pandemic era; they will be expecting it as an option. If hybrid and remote working becomes the new norm as expected, companies that develop a more comprehensive flexible working plan can leverage that internal framework as a tool to attract talent. Being able to offer not only the option of flexibility, but a thoughtful and holistic business approach will help distinguish companies as employers of choice.

Marjorie and Caitlin are part of Seyfarth’s leading International Employment team and members of the ESG, Corporate Citizenship & Human Rights practice group. To find out more about developing a flexible working plan for hybrid and remote working arrangements, please reach out to them or anyone else on our specialist team.

By James L. Curtis, Benjamin D. Briggs, Adam R. YoungPatrick D. Joyce, A. Scott Hecker, Ilana Morady, Daniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis: President Biden announced a six-pronged, “comprehensive national strategy” to combat COVID-19, which will include a second OSHA Emergency Temporary Standard requiring vaccines or testing.

On June 21, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS), its first in decades, relating to COVID-19 that only applied to health care employers. On September 9, 2021, the Biden Administration announced the framework for a second OSHA ETS that will apply to all employers with 100 or more employees, and will mandate COVID-19 vaccination or weekly testing for employees who choose not to get vaccinated. The announcement explains:

The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

No draft regulations have been released, and employers have no indication of compliance dates.  When issuing an ETS, OSHA does not need to pursue notice-and-comment rulemaking; however, the White House’s Office of Information and Regulatory Affairs held over 40 stakeholder meetings (known as “12866 meetings,” after Executive Order 12866) prior to OSHA’s issuing its healthcare ETS, the development of which took approximately six months. OSHA state plans will have 30 days to adopt their own regulations that are similar or more restrictive than OSHA’s vaccine ETS. The new OSHA ETS will be part of a larger White House plan intended to address the ongoing COVID-19 pandemic and high rates of infection, hospitalization, and death.

The President noted that there are still nearly 80 million Americans eligible to be vaccinated who have not yet gotten their first shot. The President’s plan will reduce the number of unvaccinated Americans by using “regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” In addition, the plan will provide “paid time off for vaccination for most workers in the country.” The regulations may put employers on the hook for those payments.

The six prongs of the White House Plan are:

  1. Vaccinating the Unvaccinated
  2. Further Protecting the Vaccinated
  3. Keeping Schools Safely Open
  4. Increasing Testing & Requiring Masking
  5. Protecting Our Economic Recovery
  6. Improving Care for those with COVID-19

Specifically, with respect to COVID-19 vaccines, the President’s plan will:

  • Require All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
  • Require Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government
  • Require COVID-⁠19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings
  • Require Staff in Head Start Programs, Department of Defense Schools, and Bureau of Indian Education-Operated Schools to be Vaccinated
  • Call on Large Entertainment Venues to Require Proof of Vaccination or Testing for Entry
  • Require Employers to Provide Paid Time Off to Get Vaccinated

If you’re struggling with a company vaccine policy, see Seyfarth’s Vaccine Policy Playbook – An “essential resource in designing, communicating, and deploying your company’s vaccine policy.” The Playbook guides employers through types of mandates, policy creation and considerations, such as reporting, incentives, and local mandates, and perhaps most importantly, defining an accommodation strategy that reduces the risk of ADA and EEOC claims.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Daniel I. Small and Robert S. Whitman

Seyfarth Synopsis: The deadline for employers to distribute their airborne disease prevention safety plan and post the plan in the workplace is approaching. 

As previously reported, the New York Department of Labor has published general and industry-specific model disease prevention protocols under the New York HERO Act. Employers were required to either adopt one of the DOL’s models or create their own airborne disease prevention plan that meets or exceeds the minimum requirements of the law.

Now, employers must distribute the protocol to all of their employees. Technically, the statute calls for this to be done by September 4. But because that is a Saturday, and the next weekday (Monday, September 6) is Labor Day, employers arguably have until September 7 to distribute the plans.

Although the statute requires that the notice be in English and any other language identified by an employee as their primary language, employers can satisfy their obligation by distributing the English version until the DOL publishes non-English versions. Thus far, the only non-English version the DOL has published is Spanish (available here and here). As such, employers with Spanish-speaking employees should use those versions as appropriate.

Employers must also post the safety protocol at each worksite “in a visible and prominent location” within 30 days of adopting their respective safety protocol. Employers must include the protocol in any handbook it provides to its employees. (Doing so will presumably satisfy the need to provide the protocol to newly-hired employees if the employer provides the handbook to new employees at the time of hire.)

Finally, it remains important to bear in mind that that the current requirements pertain only to adoption and circulation of safety plans. Because no current airborne safety emergency has been declared (notwithstanding the continued threat posed by COVID-19 and the Delta variant), employers are not currently required to activate their plans.

Employers should continue working with counsel to ensure compliance with the provisions of the HERO Act, particularly regarding their distribution and posting requirements for workforces that speak languages other than English.

Seyfarth will continue to monitor developments in this space and provide updates when available.


Seyfarth Synopsis: As previously reported here, on February 22, 2021, New Jersey Governor Phil Murphy signed A21, the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” (CREAMMA), which is enabling legislation for the amendment to the New Jersey Constitution making lawful the recreational use of marijuana in the state.

While the new law, among other things, allows employers to conduct numerous forms of drug testing for marijuana, the law limits an employer’s ability to rely on a positive marijuana test result in making employment decisions.  The law requires that a drug test include both a “physical evaluation” and “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva.”  The “physical evaluation” must be conducted by an individual certified to provide an opinion about an employee’s state of impairment, or lack of impairment, related to the use of marijuana. The law tasked the Cannabis Regulatory Commission with adopting standards for a “Workplace Impairment Recognition Expert” (WIRE), who must be trained to detect and identify an employee’s use or impairment from marijuana or other intoxicating substances and to assist in the investigation of workplace accidents.

On August 19, 2021, the Commission published its “Personal Use Cannabis Rules,” which say virtually nothing about employer drug testing practices.  That said, according to the Commission, until it “develops standards for a Workplace Impairment Recognition Expert certification” in consultation with the Police Training Commission, “no physical evaluation of an employee being drug tested in accordance with [the new law] shall be required.”

It remains to be seen when the Commission will issue another set of regulations and whether they will clarify some of the law’s unanswered questions, most importantly how the law impacts employers with employees in safety-sensitive positions. Until then, New Jersey employers should consider working with experienced employment counsel to determine whether to (a) modify their drug testing practices, including the possibility of eliminating marijuana testing either pre-employment or for certain types of positions, (b) provide training to managers tasked with making reasonable suspicion determinations, and (c) determine the best person to serve as the employer’s WIRE.

We will provide an update once the Commission adopts additional regulations.

By James L. CurtisAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: Labelling the Delta-variant surge as the “Pandemic of the Unvaccinated,” on August 26, 2021, Illinois Governor J.B. Prtizker announced that Illinois residents must wear masks indoors, and that school and health care staff must be vaccinated.

Cook County and the City of Chicago both had mask mandates in place for “indoor public settings.” On August 26, 2021, Illinois Governor J.B. Pritzker issued Executive Order 2021-20providing that that:

All individuals in Illinois who are age two or over and able to medically tolerate a face covering (a mask or cloth face covering) shall be required to cover their nose and mouth with a face covering when in an indoor public place. Illinoisans should also consider wearing a mask in a crowded outdoor settings and for activities that involve close contact with others who are not fully vaccinated. Face coverings may be removed temporarily while actively eating or drinking (including in bars and restaurants), and may be removed by workers at workplaces where they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space).

The requirement is effective Monday August 30, 2021. The governor also announced a COVID vaccine mandate for health care, schools, higher education, and state-owned or operated congregate settings.

As we have blogged with regard to CDC and OSHA guidance, the new Illinois EO does not define an indoor “public” place, which appears to give employers in non-public facing environments continued discretion in enforcing mask requirements for vaccinated employees. The Governor’s press release of August 26, 2021 explains the mask mandate to cover all vaccinated and unvaccinated individuals entering workplaces, all adults and children two years old and older, and “all indoor settings.”  Accordingly, the Governor’s office appears to be taking an expansive view of an indoor public place.

The Governor noted that due to the Delta variant, that the number of new cases, including children, is of increasing concern. He explained that Illinois hospitals were facing rising levels of COVID hospitalization, with admissions made up almost entirely (98%) of the unvaccinated. He reiterated a push for vaccination, and requires it of those employed in healthcare and schools.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin J.Conley and Diane V. Dygert

Seyfarth Synopsis: As employers continue to struggle with strategies for safely re-opening their workplaces, we have previously discussed the possibility of mandating a vaccine or providing incentives for getting the vaccine. See Did You Get Your Vaccine Yet… Your Employer May Offer You an Incentive, and Employers’ Mandating the COVID-19 Vaccine for Temporary Workers, and Other Issues for Employers’ Consideration. As employers shift their focus toward the cost of COVID hospitalizations (which studies show are a much greater risk for unvaccinated individuals), employers are increasingly considering imposing a premium differential between vaccinated and unvaccinated covered participants. Imposing such a premium differential is doable, but likely creates a group health plan wellness program, which implicates both HIPAA (under rules issued by HHS), and the ADA and GINA (governed by the EEOC) wellness program rules.

There are myriad intricacies to consider when setting up a wellness program. We will hit some of the highlights here:

HIPAA Wellness Programs

HIPAA’s rules divide the world of wellness programs into two main categories:

(1)        Participation-only programs. These are programs that do not require any conditions for receiving a reward and have very few requirements associated with them, except that they must be available to all similarly-situated individuals.

(2)        Health-contingent programs. These are programs that base rewards on satisfying a standard related to a health factor, which are further subdivided into

(i) activity-only, and

(ii) outcomes-based programs

While at first blush it may seem like getting a vaccine is participation-only as a person simply needs to get the shot, and does not need to remain free from COVID-19, there is some thought that it may actually be health-contingent  because not everyone can get the vaccine due to underlying health conditions.

Most practitioners do not believe such a program is a health-contingent “outcomes-based” program, as the reward does not depend on staying COVID-19-free. However, at least one consultant has taken the position that this type of program could even be outcomes-based if having simply received the vaccine is considered a “health status”.

Although HHS has not provided any direct guidance here, we think it is more likely that such a program would be a health-contingent “activity-only” program. In general, a health-contingent activity-only wellness program must meet the following requirements:

  • Incentive Limit:
    • Limit the incentive to 30% of the cost of coverage (this limit is increased to 50% if the program includes a tobacco cessation component);
    • The limit is based on the overall cost of coverage — i.e., the COBRA rate — applicable to the value of coverage elected — i.e., self-only, family, etc.;
    • This incentive would need to be combined with any other “health contingent” wellness program offered under the plan when determining whether the incentives exceed the limit (except that if any incentive is linked to smoker status, the limit is increased to 50%).
  • Reasonable Alternative:
    • A reasonable alternative must be offered to persons who cannot get vaccinated because it is medically inadvisable or, as a result of the overlay of Title VII, due to a sincerely held religious belief.
    • Participants must be notified of the availability of the reasonable alternative in all materials substantially describing the program.
  • Annual Opportunity to Qualify:
    • Provide an opportunity to qualify for the reward at least once per year;
  • Be uniformly available to all similarly situated individuals; and
  • Not be a subterfuge for discrimination.

(Note: There are additional requirements for health contingent wellness programs that are outcomes-based programs.)

EEOC and the ADA

The EEOC has modified its wellness program rules a few different times in the last few months. Ultimately, we read the current loosening of the EEOC’s wellness program rules as the administration’s attempt to not discourage incentives.

If the wellness program is for a health-contingent activity-only program, the EEOC is okay if the plan meets the HIPAA/HHS standards. (The new EEOC wellness program rules will also allow an incentive for participatory programs that is not overly large (i.e., considered coercive). )

Similarly, recent EEOC guidance has indicated that vaccine status alone is not a “medical exam or disability-related inquiry” under the ADA. So, if an employer simply requests proof of vaccination status but does not require the employee to get the vaccine directly from the employer (or its contractor), the program is arguably outside of the scope of the EEOC’s wellness guidelines entirely.

Affordable Care Act

For ACA purposes, if the “incentive” is structured as an increased premium, the employer must treat all employees as if they failed to get vaccinated and were required to pay the increased amount for purposes of determining the affordability of coverage, regardless of whether that’s the case. However, there are ways for plan sponsors to mitigate this concern. For instance, the employer could design its “penalty” as a deductible increase rather than a premium increase, which would not impact affordability. (It would impact minimum value, but the employer likely has more flexibility there.)  Similarly ,because the ACA only requires that employers offer one affordable option, the employer could link the incentive only to its higher-cost benefit options (leaving untouched its lower-cost, “affordable” option.

*           *           *

While beyond the scope of this legal update, employers should also be cautious of how they structure the program considering collective bargaining obligations, HIPAA privacy concerns and Section 125 requirements (for mid-year implementations). We will continue to monitor trends in this space with an eye toward any agency indications as to whether they intend to regulate these types of programs.

By Brent I. ClarkJames L. CurtisBenjamin D. BriggsMark A. Lies, IIAdam R. YoungA. Scott HeckerIlana MoradyPatrick D. JoyceDaniel R. BirnbaumMatthew A. Sloan, and Craig B. Simonsen

Seyfarth Synopsis: Today the FDA approved Comirnaty (COVID-19 Vaccine, mRNA), previously known as Pfizer-BioNTech COVID-19 Vaccine, to prevent COVID-19 disease in individuals 16 and older.  This could be big news for those on the fence about getting vaccinated, and for employers contemplating their COVID-19 vaccine programs.

The Pfizer vaccine has been administered under Emergency Use Authorization for more than nine months, but now has been fully approved by the FDA. Some vaccine-hesitant individuals may now change their opinions about whether to get vaccinated based on the FDA’s full approval of Comirnaty. And for employers refraining from mandating vaccination, reduced employee resistance to and improved employee confidence in a fully-vetted vaccine may remove one barrier to requiring vaccination.

Of course, how vaccines can best be deployed remains a shifting conversation, with the Biden Administration now pushing for boosters. Those who have been defined by federal, state, and local government requirements and guidance as “fully vaccinated” may no longer meet that definition should it change to require the proposed booster. The OSHA COVID-19 Healthcare Emergency Temporary Standard (“ETS”) defines fully vaccinated as “two weeks or more following the final dose of a COVID-19 vaccine.” But will the ETS definition be modified to require three doses? Which definition might carry over to any permanent COVID-19 or infectious disease standard promulgated by the Biden Administration? Employers will need to stay on top of these and other COVID-19 vaccine concerns as science and society continue to adjust to the ongoing pandemic.

Please refer to our analyses of other COVID-19 vaccine issues in prior blog entries, including: President Biden to Require Federal Workers, Contractors to Provide Vaccine Attestation or Mask, Distance, and Test Multiple Times Per Week, Employers Do Not Need To Record Adverse COVID-19 Vaccine Reactions on their OSHA Form 300 Log, and OSHA Issues Updated Protecting Workers Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Jennifer L. Mora and Jeffrey A. Berman

Seyfarth Synopsis: With a new President comes a shift in the balance of power at the National Labor Relations Board. To start, shortly after President Biden took office in January, the NLRB’s sole Democrat, Chairman McFerran, issued several dissents that provided a window into what the future would look like  under a Biden Board.

Those dissents addressed confidentiality in arbitration agreements (here), implementation of employee handbooks (here), investigative confidentiality rules (here), standards for determining whether a party has engaged in bad faith bargaining (here), and policies prohibiting recordings in the workplace (here).

On August 12, 2021, the NLRB’s top lawyer, General Counsel Jennifer Abruzzo, issued a memorandum instructing regional offices to send cases relating to certain issues to her office for consideration. Nobody should be surprised at Abruzzo’s desire to overturn several important Trump Board decisions, as this happens each time a new NLRB majority is established.  However, the memorandum, which includes all of the issues flagged by Chairman McFerran in her dissents, goes much further.

The GC’s memorandum highlighted more than 40 Trump-era decisions that are up for reconsideration, based on Abruzzo’s view that they overruled legal precedent and are not consistent with the basic purpose of the National Labor Relations Act to foster unionization. They include, among many others:

  • The Boeing Co. (2017) and the appropriate standard for determining the legality of workplace/employee handbook rules. This will include any Trump Board decision that analyzed a rule or handbook provision under the Boeing As we previously reported, Chairman McFerran espouses a return to the analytical framework in Lutheran Heritage Village-Livonia — the mere maintenance of a neutral work rule will violate the Act if employees would reasonably construe the rule to prohibit union and other protected concerted activity.
  • Baylor University Medical Center (2020), which found lawful separation agreements containing confidentiality and non-disparagement provisions, in addition to Trump-era decisions addressing confidentiality rules relating to workplace investigations and confidentiality provisions in arbitration agreements. In recent dissents, McFerran has been highly critical of any confidentiality provisions, opining that they require employees to “suffer in silence at work.”
  • Various decisions discussing the appropriate standard for determining whether an employee has engaged in Section 7 protected activity. Importantly for employers, a desire to return to Purple Communications will likely mean protecting more than just communications in emails, but also other electronic communications and videoconferencing platforms.
  • Decisions addressing the standard to prove violations of the Act under Wright Line.
  • Tobin Center for the Performing Arts (2019) — the extent to which property owners can deny access to third parties seeking to engage in Section 7 activity.
  • Valley Hospital Medical Center (2019) — the right of an employer to cease deducting union dues upon expiration of a labor agreement.
  • MV Transportation (2019), which abandoned the clear and unmistakable waiver standard to determine whether an employer’s unilateral action was permitted, and instead adopting a “contract coverage” standard, under which unilateral action is permitted if it falls within the compass or scope of certain contractual language in the labor agreement.
  • SuperShuttle DFW, Inc. (2019) — the standard for determining whether an individual is an independent contractor. The memorandum also suggests that the simple act of misclassifying a worker as an independent contractor can be an unfair labor practice. A shift in precedent relating to this issue ups the ante for companies operating in the gig economy.

But the memorandum goes beyond evincing an intent to overturn the Trump Board’s precedent – it also “identifies other initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones I would like to carefully examine.” Those include:

  • Two issues relating to Weingarten rights: their application to non-union workforces and whether an employer must provide the union with its interview questions in advance of the interview.
  • Information requests when an employer intends to relocate its operations.
  • The right of an employer to withdraw recognition after the third year of a contract of longer duration.

Abruzzo’s memorandum also signals a critical modification to the existing card check rules- requiring regional offices to send to her office cases where an employer refuses to recognize and bargain with a union if the employer has either engaged in unfair labor practices or cannot “explain its reason for doubting majority status in rejecting the union’s demand.” If adopted, this standard would make it more difficult for an employer to insist on an election rather than bargain with a union in the face of a showing of majority support.

The fact that the new General Counsel has requested that regional offices forward cases raising certain issues to her does not automatically mean that the Board will either reverse a decision of the Trump Board or extend the protections of the NLRA further than they currently exist.  However, given the makeup of the newly-constituted Biden Board, there is little question what the future holds.

By Ana CidLaurence Harvey Wood, and Gabriella Long

Seyfarth Synopsis: We have seen the benefits of technology in keeping us connected in the new remote working environment and the flexibility that it provides, but how does this impact employees’ ability to disconnect from their work?

During the Covid-19 pandemic, working from home has become the new norm, and this doesn’t seem set to change, with many large employers stating they do not plan to bring staff back to the office full-time.

Although many have enjoyed the shift to greater flexibility and more frequent working from home, simultaneously, many have found it difficult to create a distinction between home and work life. Further, in the absence of normal daily activities, socializing, and holidays, some people filled their time with working around the clock. This has led to a number of issues such as employees working longer hours, suffering from stress/fatigue/burnout, and solidification of the “always on” culture.

In light of these issues, we are seeing several countries outside of the US, issuing new regulations to allow effective disconnection from work and work-related communications outside of normal working hours to protect employees’ health and improve work/life balance.

Take up of the right to “disconnect.” What are the options?

Some European countries including France, Spain, Belgium, and Italy have already established a statutory “right to disconnect” for employees, and similar legislation has also been implemented in jurisdictions outside of Europe, including the Philippines, Argentina, and India.

Other countries have proposed or considered adopting such a right including the Netherlands, Luxembourg, and the federal government of Canada.

In Ireland the right was recently introduced through a new Code of Practice, making it one of the first countries to introduce such a measure post-Covid-19. The Code encourages employers to create a culture of good work/life balance and alleviate employees from the expectation of responding to messages out of hours. It is not legally binding but was built on the foundations of existing legal obligations in Ireland, such as the 48-hour week, health and safety obligations, and the right to a statement of key terms setting out working hours.

In the UK, Prospect, the trade union for professionals such as engineers, scientists, and civil servants, has been particularly active in urging the UK government to include legislation on the right to disconnect in the upcoming Employment Bill, but the government currently does not appear to have plans for a specific legal right to disconnect.

Interestingly, some large companies have voluntarily put in place “disconnect from work” policies to stop email servers from sending emails to employees during off hours in a bid to combat the above-mentioned issues.

Sweden has taken a different approach to achieve a similar aim with reduced work hours and more leisure time, which has led to a marked reduction in absenteeism and improved health and productivity.

In terms of the actual implementation of a statutory right to disconnect, in France employers must negotiate an agreement with union representatives on the right to disconnect outside working hours. The law does not impose rules on how employees should “switch off”; instead it requires that companies in which one or more trade unions have set up a “union section” (typically companies with at least 50 employees) must enter into mandatory annual negotiations to define how staff can exercise their right to disconnect, and (if no agreement with the unions is reached) adopt a unilateral “charter” in this respect after consulting their works council. These negotiations must also cover the establishment of “arrangements to regulate the use of digital equipment, in order to ensure compliance with rest and holiday periods and to protect personal and family life.”

Under French law, there are no direct sanctions on companies for not complying with these rules, but employees can sue if they feel their rights have been infringed. For example, an employee at a large pest control company was granted EUR 60,000 in compensation for being “on call,” after a French court found the company had required the employee to “permanently leave his telephone on… to respond to requests from his subordinates or customers” if problems arose outside his hours of work.

In practice, some companies have gone so far as introducing measures including cutting email connection in the evening or on weekends, or even destroying emails automatically that are sent to employees while they are on holiday.

In Belgium, legislation does not grant a general “right to disconnect” but rather a right to address and discuss the issue. Each employer must consult with the Health and Safety Committee about disconnecting and the use of digital communication tools. The measures decided on should then be confirmed in company work rules, in a collective bargaining agreement or a policy.

In Spain, companies are obliged to come up with a policy, to be negotiated with employee representatives, including measures to allow the employees to “digitally disconnect.” While the regulation does not include the specific actions that need to be taken, companies have taken a variety of measures, for example, (i) the right to not respond to email, phone, or instant messages after working hours, unless in exceptional circumstances, and the Company will not impose any disciplinary action for being unavailable during hours of “disconnect”; (ii) that managers must refrain from requesting a response out of working hours or in a time close to the end of working hours, or if sent the recipient can expressly assume that they can respond the following day; and (iii) that meetings must be set up and take place during working hours.

In May this year, the Italian legislator introduced the right for employees working remotely to disconnect from the company tools and systems used to carry out their work. Notably, this only recognizes the right to disconnect for employees on the “smart working” model (i.e., employees alternating between working in the office and remotely as opposed to someone on a teleworking contract and based permanently at home), and there are currently no sanctions for non-compliance in place.

In the US, although some companies have implemented programs like this experimentally, we are not aware of any analyses of the efficacy of these programs.

Potential issues?

While the above measures show what several countries outside the US are doing to try to address employee work/life balance , there are also certain factors to be considered given the current trends in global workplaces:

Will a right to disconnect actually benefit employees?

  • A right to disconnect is not the same as an obligation to disconnect. For example in the UK, it can be argued that working time legislation has little impact on long working hour cultures with many employees opting out and few willing to complain that a right has been breached.
  • Legislation may actually reduce flexibility by introducing rigid working hours and could increase pressure to meet deadlines by a hard stop finish time. Employees may have become accustomed to choosing different working hours every day as a result of the pandemic. Being uncontactable during evenings and weekends may mean employees need to be “always on” during normal working hours, whereas many might favor greater flexibility and autonomy over their own working hours especially when care obligations are triggered.

Global companies: the practical  concerns

  • The idea of employees being able to completely disconnect outside of working hours may be impractical. Certain industries expect employees to work outside of their normal working hours, for example, to service paying clients. Additionally, some employment contracts may even require employees to work “the hours necessary to perform their duties.”
  • Any right to disconnect will need to take into account the global reach of international companies and recognize that employees work across different time zones and legal landscapes. Completely switching off may not be practical and could disrupt business operations.

Although the remote work practices temporarily adopted in response to the Covid-19 pandemic have created an unexpected opportunity to roll out more flexible work arrangements on a permanent basis going forward, the “new normal” reinforces existing concerns over employees being permanently connected. Some countries have taken the view that legislation is needed in order to help employees to “switch off.” Whether this is an effective approach remains to be seen, but in any event, global employers will want to ensure that the benefits of greater flexibility are not jeopardized by excessive working hours and burn-out situations. Finding the right balance will be key.

Ana, Laurence, and Gabriella are part of Seyfarth’s leading International Employment team. To find out more about employees’ right to disconnect and how these new policies might affect your business, please reach out to them or anyone else on our specialist team.