| Special #71 - September 25, 2020 |
| | Strategic HR Leadership Series New Schedule (New Registration is still available) - Enhancing or Designing a Wage & Salary Administration Plan
October 13, 2020 9:00 AM – 12:30 PM
- Functioning as a Human Resource Strategic Business Partner
Date TBD (October) 9:00 AM – 12:30 PM
- Practical Techniques to Enhance Your Training & Facilitation Skills Date TBD (November) 9:00 AM – 12:30 PM
- Positively Impacting Employee Behavior through Performance Appraisals, Coaching & Counseling
Date TBD (November) 9:00 AM – 12:30 PM
- Utilizing HR Metrics to Illustrate & Improve HR's
Date TBD (December) 9:00 AM – 12:30 PM
- Employment Law Essentials with Constangy, Brooks, Smith & Prophete Attorneys - Date TBD 9:00 AM – 12:30 PM
Visit our website to view the overview of workshops and to register
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| HR and Employment Law News |
| Justice Ginsburg March 15, 1933 - September 18, 2020 9.21.20
- Constangy.com News & Analysis: President forbids contractors from training on “divisive” concepts regarding race, sex 9.23.20
Illegal or ill-mannered? Title VII meets Ms. Manners9.22.20
- HRDive.com BRIEF: DOL to propose new FLSA independent contractor test PUBLISHED Sept. 22, 2020- HRDive.com BRIEF: Employer owes back pay to worker instructed to self-quarantine, DOL says PUBLISHED Sept. 23, 2020- ¶47,303 Survey finds many working parents fear job loss, being penalized by employer during COVID-19 — SURVEY RESULTS, (Sep. 24, 2020)- Georgia Department of Public Health COVID-19 Daily Status Report
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| | | | Georgia Employers' Association wants
to honor Justice Ginsburg
Thank you for your tireless service and dedication to this country. Your voice and influence will be missed.
**** BY ROBIN SHEA ON 9.21.20
March 15, 1933 - September 18, 2020.
Read Online>>
It is impossible to deny the impact that Ruth Bader Ginsburg has had on equality for women and on the Supreme Court.
Whether one agrees with all of her positions, they were brilliantly articulated, and her opinions were a pleasure to read. Her voice will be missed.
This obituary provides a vivid illustration of the obstacles that Justice Ginsburg had to overcome as a female law student and lawyer before being sworn in as judge for the U.S. Court of Appeals for the District of Columbia Circuit and, finally, a Supreme Court Justice 27 years ago. And here is my personal favorite -- a 2015 article from the Los Angeles Times about Justice Ginsburg's close friendship with her nemesis in Court opinions, the late Justice Antonin Scalia. (According to the article, their love of vigorous debate -- and opera -- far outweighed their philosophical differences.) I like to think that RBG and Nino are happily mixing it up again in the hereafter.
We offer our prayers and condolences to Justice Ginsburg's family and loved ones.
(For today, at least, we will remain politics-free. However, we will be following the developments regarding the nomination of a successor to Justice Ginsburg.)
Image Credit: From flickr, Creative Commons license, by Frank Balsinger (official portrait).
Tags: Ruth Bader Ginsburg, SCOTUS, Supreme Court
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Constangy.com News & Analysis: President forbids contractors from training on “divisive” concepts regarding race, sex 9.23.20
President Trump signed an Executive Order on September 22, titled “Combating Race and Sex Stereotyping.” The Order focuses on prohibiting the federal government, the U.S. military, and federal contractors from promoting race or sex stereotyping or scapegoating through workforce training.
The Executive Order creates a new contract clause to be inserted in all government contracts and subcontracts to which Executive Order 11246 applies. (EO 11246 prohibits federal contractors from discriminating against employees or applicants on the basis of race, color, religion, sex, sexual orientation, gender identity, and national origin, and requires contractors to take affirmative action to employ females and minorities.)
Under yesterday’s Executive Order, organizations entering into federal contracts or subcontracts must agree that they will not
use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that
(a) one race or sex is inherently superior to another race or sex;
(b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
(c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
(d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
(e) an individual’s moral character is necessarily determined by his or her
race or sex;
(f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
(g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
(h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
The Executive Order labels these topics as “divisive concepts.”
In addition, the Executive Order defines “race or sex stereotyping” as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” “Race or sex scapegoating” is defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
The Executive Order specifically provides, however, that it does not prevent contractors “from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are” not inconsistent with its mandates.
The Executive Order includes a notice and posting obligation for contractors. The federal contracting officer will provide contractors a notice regarding the requirements of the Executive Order, and contractors will be required to post this notice “in conspicuous places available to employees and applicants” as well as provide it to any union with which they have a collective bargaining agreement.
The Office of Federal Contract Compliance Programs must develop a “hotline” to receive and investigate complaints that a contractor is providing training in violation of the Executive Order. The OFCCP is also directed to publish a notice in the Federal Register “seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.”
These new requirements apply to new contracts with the government and covered subcontracts that are entered into on or after November 21, 2020. (Contractors that have difficulty identifying when the organization enters into new or amended federal contracts should consider ensuring compliance on this effective date.)
The Executive Order states that its purpose is to promote economy and efficiency in federal contracting, as well as “to combat offensive and anti-American race and sex stereotyping and scapegoating.” To support this premise, the President’s Order explains,
many people are pushing a . . . vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.
* * *
Unfortunately, this malign ideology is now migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors. For example, the Department of the Treasury recently held a seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and that instructed small group leaders to encourage employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.”
- In addition to the requirements noted above for federal contractors, the Executive Order
- Prohibits the U.S. military from instructing service members to believe any divisive concepts.
- Mandates that federal agencies identify programs for which the agency may condition receipt of grant funds on certification that federal funds are not used to promote divisive concepts.
- Requires federal agencies to ensure that training provided to federal employees does “not teach, advocate, act upon, or promote in any training to agency employees any of the divisive concepts.”
- Directs the Attorney General to determine whether “workplace training that teaches the divisive concepts . . . contributes to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.”
- Suggests that the Attorney General and the Equal Employment Opportunity Commission “issue guidance to assist employers in promoting diversity and inclusive workplaces without violating Title VII.”
This Executive Order will undoubtedly be viewed as political in nature and will most certainly be rescinded if Vice President Joe Biden is elected in November. Meanwhile, however, federal contractors should review all training materials to ensure that any component that could fall within the purview of “divisive concepts” is eliminated.
For a printer-friendly copy, click here.
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| | Constangy.com Podcast News & Analysis: Illegal or ill-mannered? Title VII meets Ms. Manners By Susan Bassford Wilson & Cherie Silberman
9.22.20
Is it discriminatory to discipline employees for wearing #BLM face masks? When does Supervisor Karen cross the line from rude into discrimination? And join us to count down the top eight things you should never, ever say in the workplace – particularly to a pregnant woman. Spoiler alert: Animal-related comparisons are rarely welcome.
This podcast is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This podcast should not be used as a substitute for competent legal advice from a licensed attorney in your state.
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| | | | | HRDive.com BRIEF: DOL to propose new FLSA independent contractor test \
AUTHOR Ryan Golden @RyanTGolden PUBLISHED Sept. 22, 2020
Dive Brief: - The U.S. Department of Labor is set to propose a regulation revising its interpretation of the Fair Labor Standards Act's classification provision to determine whether a worker is an employee or independent contractor, senior DOL officials said in a press call Tuesday.
- The Notice of Proposed Rulemaking (NPRM) will propose an "economic reality" test that would examine two "core factors": the nature and degree of a worker's control over the work; and the worker's opportunity for profit or loss based on initiative and investment. Three other factors — the amount of skill required for the work; the degree of permanence of the working relationship between worker and potential employer; and whether the work is part of an "integrated production unit" — would serve as "additional guideposts" in the analysis.
- DOL's proposal is being processed for publication in The Federal Register either later this week or next week, senior officials said; once published, it will be subject to a 30-day public comment period.
Dive Insight:
The announcement is a "jolt of good news" for businesses that use independent contractors, including so-called gig economy companies, Rich Meneghello, attorney with Fisher Phillips, said via email.
In issuing the NPRM, DOL is addressing an issue that has received increased attention in recent years, particularly at the state level. Notably, California codified in 2019 a three-part joint-employer test adopted by the Supreme Court of California. The law, known as Assembly Bill No. 5, has been called a restrictive test for determining whether an employee is an independent contractor, according to management-side attorneys who previously spoke to HR Dive.
In California and elsewhere, independent contractor classifications have been used heavily by companies that operate gig worker platforms. Courts have reached various conclusions on whether these workers should be classified instead as employees. In March, a New York appeals court held that couriers on delivery platform Postmates were entitled to receive unemployment insurance, adding that Postmates "could not operate" without the couriers. Last month, an ongoing case in California saw a state judge order ride-hailing companies Uber and Lyft to reclassify their drivers as employees. But an appeals court later granted an emergency stay that temporarily halted the lower court's order.
DOL weighed in on the worker classification issue through a 2019 opinion letter in which it said service providers working on an unnamed virtual marketplace company were independent contractors. DOL said in the letter that economic dependence on an employer is "the touchstone of employee versus independent contractor status." The upcoming NPRM "sharpens" the test DOL applied in that opinion letter, senior agency officials said.
"The growth of the 'gig' economy, in which cellphone apps provide a 'platform' for connecting willing workers with interested customers, has provided new convenience and work opportunities for millions of Americans," Secretary of Labor Eugene Scalia wrote in an opinion piece for Fox Business on Tuesday. "But that economy and other developments are seen as subversive by those who believe that for most workers, being a company's employee — not an independent contractor — is the only proper aspiration."
"Unlike AB-5, our rule doesn't propose radical changes in who's classified as an employee or independent contractor," Scalia continued. "Instead, our rule aims to simplify, clarify and harmonize principles the federal courts have espoused for decades when determining what workers are 'employees' covered by the minimum wage and overtime pay requirements of the FLSA."
The proposed rule "will almost certainly be challenged" by worker advocates and, potentially, state attorneys general, Meneghello said, which could delay its implementation past Election Day. During the press call, senior DOL officials didn't voice concerns about the rule's timeline, only noting that the agency would analyze public comments "very thoroughly."
Follow Ryan Golden on Twitter
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| | | | HRDive.com BRIEF: Employer owes back pay to worker instructed to self-quarantine, DOL says
AUTHOR Lisa Burden PUBLISHED Sept. 23, 2020
Dive Brief: - A Georgia-based insurance company has agreed to pay $1599 in back wages to an employee who was denied paid sick leave under the Families First Coronavirus Response Act (FFCRA), the U.S. Department of Labor’s (DOL) Wage and Hour Division said Sept. 15.
- Risk & Insurance Consultants Inc. failed to pay an employee who received a healthcare professional’s instructions to self-quarantine because of coronavirus concerns, according to the agency.
- DOL "is protecting the American workforce during the coronavirus pandemic by ensuring employers comply with all of the requirements of the [FFCRA]," said Wage and Hour Regional Administrator Juan Coria in a statement announcing the settlement.
Dive Insight: The FFCRA went into effect earlier this year and requires businesses with fewer than 500 employees to provide up 80 hours of paid sick leave if an employee can’t work because of COVID-19, including if they’ve been quarantined or have symptoms of COVID-19 and are seeking a diagnosis. The law also temporarily expanded the Family and Medical Leave Act for employers with fewer than 500 employees to guarantee paid leave if an employee has to care for a child whose school or daycare is closed, or otherwise unavailable, due to COVID-19.
Businesses with fewer than 50 employees can obtain an exemption from providing workers with paid emergency leave "when the imposition of such requirements would jeopardize the viability of the business." Employers can use tax credits to defray the cost of providing paid leave under the law.
While larger employers were excluded from the FFCRA’s requirements, some cities and states have enacted laws mandating that large employers provide COVID-19-related leave. The state of California and many of its cities have been especially active in this area. For example, under an executive order signed by California Gov. Gavin Newson early this spring, grocery store, fast food and farm workers, as well as delivery drivers can receive two weeks of supplemental paid sick leave related to COVID-19. The order applies to employers with more than 500 employees in the U.S. Los Angeles mayor Eric Garcetti signed an emergency order April 7, requiring employers with 500 or more employees within the city or 2,000 or more employees within the United States to provide paid leave to workers affected by the coronavirus.
Employers with operations in more than one city or state may need to check local and state laws for recently enacted rules regarding emergency leave. Employers also may need to note that DOL has encouraged employers to adopt flexible leave policies to help combat the spread of the coronavirus.
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| | | | ¶47,303 Survey finds many working parents fear job loss, being penalized by employer during COVID-19 — SURVEY RESULTS,
(Sep. 24, 2020) from GEA HR Answers Now
More than half of working parents fear being a parent is a strike against them in the workplace during COVID-19. According to the new Catalyst-CNBC survey, "The Impact of COVID-19 on Working Parents," nearly 40 percent of working parents say that their employer does not have enough benefits for parents to support blended or virtual learning amidst the uncertainty of students of all ages returning to school.
In the survey of 1,000 working parents in the US, 57 percent of parents fear they will be the first group to be negatively affected by employer decisions. They also see a risk associated with reaching out to access, or asking for, benefits, fearing they will be penalized or even terminated:
- Four in ten parents (41 percent) say they have less job security than they did pre-pandemic; and 38 percent say they fear being penalized for being a working parent;
- Forty-one percent of mothers and 36 percent of fathers say they have had to hide their caregiving struggles;
- Forty-two percent fear that it would be a risk to their employment to take advantage of childcare offerings or benefits available to them through their workplace; and
- Thirty-nine percent worry that they'll be terminated if they ask for help.
Additionally, more than a third of parents say they are not aware of the plans their employers have in place for parents, or whether these plans simply do not exist at their company. Nearly half (49 percent) of working mothers and 39 percent of working fathers say they are not aware of any employer plans to help with childcare.
The survey also revealed other gender disparities in perceptions of parents' employers:
- Working fathers are more likely to say their employer is supporting them with paid leave (26 percent of men versus 16 percent of women; and 17 percent of men say their employer provides additional personal time off vs. 10 percent of women);
- Forty-nine percent of fathers report that their workplace has been proactive in expanding benefits since COVID-19 began, versus 37 percent of women;
- And working mothers are more likely to say that their organization has not been proactive at all (30 percent of working mothers versus 20 percent of working fathers).
"Working parents are combatting insurmountable challenges and impossible choices during the pandemic," said Lorraine Hariton, President & CEO of Catalyst. "We know some companies have stepped up in big ways to support parents during this time, but as this crisis continues, many of these strategies are fraying. It's essential that employers view this as an opportunity to lead and help other organizations rethink how work gets done and take action to find creative ways to give employees the support they need."
Parents feeling guilty. The disruption of COVID-19 has left parents across genders, race or ethnicity, and job levels feeling guilty about how they're managing work and family responsibilities during the pandemic. Over half of parents, 54 percent, said they feel guilty working because they are not able to attend to their caregiving responsibilities, while 43 percent said they feel guilty when they are caregiving because they cannot attend to their work tasks.
Despite this dynamic, most parents plan to keep their children in virtual learning, even as two-thirds of parents report that their children's school is currently open or planning to reopen for in-person learning. The same number of parents, 66 percent, also report that they are keeping their children in 100% remote or virtual learning. Only 20 percent plan to have their children participate in 100% in-person, classroom learning, and 57 percent of parents are either against the idea of sending their children back to in-person school or are unsure.
Source: Catalyst.
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Update from 09/24/2020 (State of Georgia)
Confirmed Cases 311,046
Deaths 6,822
Hospitalizations 27,903
ICU Admissions 5,120
Visit Georgia Department of Health website for more information:
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Georgia Employers' Association |
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