A Business-Minded Approach To Employment Law

How is Employment Law Evolving During a Pandemic?

On Behalf of | Apr 30, 2020 | Employment Law |

Circumstances are rapidly changing with the onset of the COVID-19 pandemic in regard to employment laws for employers. Rules and laws that once seemed unnecessary are being revisited and rewritten to address the changes in employment positions and workplace environments. As this crisis sweeps across the country, many employers are being forced to relook at how their employees’ needs are being met.

How are Non-Compete Agreements Being Handled During the Pandemic?

Amid this economic fallout created by the COVID-19 pandemic, layoffs are increasing. With this increase, there is an urgency to suspend the non-compete agreement instrument, which impedes a worker’s opportunity to secure new opportunities.

Organizations operating in the data analytics and market research space are being asked to forgo enforcement of non-compete agreements when their staff is involuntarily removed from the organization without compensation. This request does not remove an employer’s rights to legal action should an employee misappropriate trade secrets or other confidential information.

Respect will rise and fall during this pandemic, and how employees are treated will determine the reputation and future in these industries that use non-compete agreements to prevent someone from securing new employment. Unduly preventing someone from pursuing their livelihood and ability to provide for their family will have a significant impact on future viability.

The COVID-19 pandemic is causing extraordinary circumstances, and as an employer, you may want to revisit your non-compete practices, yet adhere to certain elements that need supporting. The factors which need to remain protected are any non-disclosure or non-solicit provisions that are protecting your company’s confidential information and customers. Your business has far more to gain during this pandemic if you remain compassionate and empathetic to those you have to let go.

Other Changes In Employment Laws During the Pandemic

The NLRA (National Labor Relations Act) is just one of the many laws as an employer; you have to consider. Some of the issues arising through this act include unions requesting information regarding safety inspections, the union demands to bargain for new employee policies, employee fears in regards to their exposure risks, and how to handle confidentiality with information related to exposures.

Your response as an employer to these issues depends on various factors:

  • Your collective bargaining agreement provisions
  • The industry you are involved in
  • Applicable state laws where you perform business

The healthcare industry has different responses than the non-healthcare sectors, but common issues are evolving with employment law during this pandemic.

Employers Duty to Bargain

You may be faced with a duty to bargain over new policies that are necessary as a response to COVID-19 and the changes it is causing with workplace practices. Many employers are furloughing employees or other forms of quarantine as a result of potential exposure and need to develop a policy on how to pay these employees.

To determine if you have a duty to bargain as these issues arise, you need to review your collective bargaining agreement. This agreement may include management rights, paid time off, health and safety, leaves of absence, and other provisions, which allow you to proceed unilaterally with new contract coverages under the NLRB (National Labor Relations Board.)

If your contract does not allow you to proceed unilaterally, and you feel there is a duty to bargain, your timing could be an issue. The COVID-19 pandemic will require fast action, and you will need to proceed quickly. You will want to ensure the union is clear with your proposed changes and why you are implementing them. It may be necessary to implement the changes before an agreement with the union is reached, but understand it does not relieve you from your duty to bargain. Negotiation may be necessary with the union after the implementation of your changes.

Information Request by the Union

If you are an employer with represented employees by a union, the union may seek extensive information regarding your response to the COVID-19 pandemic. Unions with healthcare employees are especially active in making these requests. Their main concern will be with the perceived safety and health concerns and how you will be handling absences resulting from this pandemic.

Look at your collective bargaining agreement, as information may be listed in there regarding your duties on how to respond to these requests for information. If you have a duty to respond, you should keep in mind these general principles:

  • You should be providing information that already exists and do not speculate or create information that you do not have
  • If the information being requested exists on a document, you should provide the document or policy to the union as your duty to respond
  • If you are in the process of developing a policy related to COVID-19 and how you will address a worker’s inability to report to work due to exposure, you may have to provide the union with the policy once you have completed it
  • You may experience tension between giving fast response and complete response. There are no concrete rules on how quickly you, as an employer, are required to respond. Your response will be determined on the circumstances you are dealing with, the amount of information they are requesting, and the competing duties of those who have to gather the information for you
  • All medical information will remain confidential, and you are not subject to disclosure to the union without a release

Employers across the nation are working overtime to address all the new issues associated with the COVID-19 pandemic. If you experience any situations of concern you are not prepared to address, you should seek legal counsel.