We’re dropping fresh labor law news and, shockingly, more COVID-19 guidance. But first, with this being our last newsletter of 2021 (or perhaps more fittingly – 2020 Part Deux), we wanted to begin with an apology to make sure we start the new year off on the right foot. Last week’s newsletter – delivered on December 23rd – failed to wish all who celebrate, a happy Festivus for the rest of us. As employment attorneys, this is unacceptable. You deserve better. We will be better. Please consider this edition our belated “airing of grievances,” starting with, of course, the latest COVID-19 guidance and then discussing the National Labor Relations Board’s (“NLRB”) latest “feats of strength.”
According to the CDC’s Latest Guidance – Don’t “Sit Tight and Assess”
It’s as if 2021 has been some sort of alternate universe version of 2020, particularly where the CDC’s response to the Omicron surge is to shorten the quarantine period for asymptomatic individuals who test positive for COVID-19. Yes, unlike Meryl Streep’s character in the film “Don’t Look Up” (btw: meh), the CDC is now telling us that they’ve thought about that whole “quarantine” thing and have some new thoughts. Should auld acquaintance be forgot, CDC?
Surprisingly, earlier this week the CDC announced that it has shortened its quarantine and isolation recommendations for asymptomatic individuals who test positive for COVID-19 from ten days to five days, followed by a five-day mask-use period.
The five-day period is calculated like it’s been: day zero is the day symptoms begin or the individual is exposed, and day one is the first day after that. What does this mean for businesses? Well, please first remember that the CDC’s guidance is merely a recommendation, and it is up to each state (and in some places, each city) to adopt it or not. Businesses must pay attention to directives issued by their state or city, and we will keep you apprised of any significant updates. Given the fact that New York previously adopted similar healthcare/critical workforce-specific guidance, and Governor Hochul’s recent re-tweeting of the CDC’s update, New York seems likely to adopt this guidance as well.
Considering this recent round of vaccination mandates, mask requirements, and ever-changing guidance, we strongly urge that revisiting your COVID-19 and leave of absence policies becomes one of your new year’s resolutions.
It Started with “Strike-tober” . . .
2022 will be an interesting year to watch as we finally should be getting Season 2 of The Home Edit (fact: Season 1 debuted in September 2020) . . . and oh yes, dramatic changes to the national labor scene. You may recall “strike-tober” being used to describe the significant uptick in union activity beginning in *checks notes* October. This includes events like the Kellogg’s employees strike (1,400 employees, strike lasted 11 weeks) and Starbucks baristas forming the coffee giant’s first-ever union. And while those stories made national headlines, there have been other changes occurring behind the scenes that will have significantly more of an impact on the labor movement.
As we typically see whenever there is a new administration in the White House, the NLRB is undergoing a makeover. This started with President Biden appointing a new NLRB general counsel, Jennifer Abruzzo, and recently continued with the confirmation of Biden’s two appointments to the NLRB. Here are some things we’ll be monitoring under the new regime:
- Bargaining unit size. A key issue up for discussion is whether the NLRB will revert to its Obama-era legal standard for determining the appropriateness of a bargaining unit. A “bargaining unit” is whatever similar group of employees a union is looking to represent (for example: “teachers” and “food service workers” would be two separate bargaining units). Under the Obama-era standard, smaller bargaining units were proper unless the objecting party (usually the employer) can establish that employees outside of the proposed unit shared an “overwhelming community of interest” with employees in the petitioned-for-unit. The current standard permits the NLRB to consider the interests of all employees in determining the appropriateness of a bargaining unit.
- Employee misclassification. Additionally, the NLRB plans to revisit its independent contractor test established in 2019 (no, that’s not a typo), which provides that a potential employee’s opportunity for profit or loss (“entrepreneurial opportunity”) was the main factor in determining whether an individual is an independent contractor or an employee. This standard made it more difficult for individuals to achieve employee classification, and thus made it more difficult to unionize. If this employee/independent contractor discussion sounds familiar to you, it’s because the NLRB is not the only one cracking down on employee misclassification: reminder that New Jersey’s new rules regarding misclassification go into effect January 2022.
- GC Abruzzo’s policy. The general counsel’s office releases memoranda that provide helpful insights into its prosecutorial agenda. Abruzzo has already released several memos on topics ranging from the definition of “protected activity” under the NLRB, her office’s willingness (or unwillingness) to settle cases for less than 100 cents on the dollar, and student-athletes’ labor rights. These memos, along with various public comments made by Abruzzo, signal a massive shift from the prior administration’s policy on employer-union relations. Stay tuned!
Whether you’re toasting to the end of 2021 with champagne or cough medicine, we hope you all stay safe and wish you nothing but happiness, health, and success in the coming year. Thanks for reading.
As always, if you’ve got questions – you know we’ve got answers.
Damien + Brian
ABOUT WEINSTEIN + KLEIN P.C.
Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.