The Brightmine Podcast (US)

With the Supreme Court blocking the Biden administration's vaccine-or-test mandate for large employers from taking effect, what happens next? And, does the ruling leave companies on their own when it comes to vaccine-related safety measures?

XpertHR Legal Editor David Weisenfeld breaks down this monumental ruling striking down the COVID-19 Emergency Temporary Standard (ETS) that would have affected an estimated 84-million employees, and a separate opinion upholding a vaccine requirement for health care workers. Meanwhile, XpertHR Legal Editor Melissa Boyce, who leads our vaccination resource coverage, discusses how employers can proceed now that the Supreme Court has spoken.

Littler employment shareholders Bruce Sarchet and Emily Patajo join XpertHR Legal Editor David Weisenfeld for an in-depth look at the many new developments affecting California employers in 2021. Some of the more notable developments include the:

• Expansion of the California Family Rights Act to apply to employers with five or more employees;
• New pay data-reporting requirements for employers with 100 or more employees;
• Emergency COVID-19 workplace safety regulations;
• Changes to the California Consumer Privacy Act; and
• Added diversity requirements for the boards of publicly held corporations.

On this podcast, Littler employment attorney Natasha DeCourcy joins XpertHR Legal Editor David Weisenfeld to discuss what happens if the Families First Coronavirus Response Act and its federal paid leave provision is allowed to expire on December 31.

DeCourcy takes employers through all the potential contingencies, including whether an expiration also means the end of an employer's ability to continue claiming tax credits. She also advises that employers should not mention the FFCRA, or anything related to COVID, at all in their employee handbooks because of the fleeting nature of these requirements.

This podcast explores the various changes employers should expect after President-elect Biden takes office on January 20, as Proskauer employment attorneys Anthony Oncidi and Laura Fant join XpertHR Legal Editor David Weisenfeld. Oncidi heads the labor and employment group at Proskauer's Los Angeles office while Fant practices with the firm's New York City office.

While there would have been more developments had the Democrats taken control of the Senate (at best they can achieve a 50-50 split), Oncidi and Fant agree there will be significant action at the regulatory level. 

Long-time employment attorneys Jonathan Hyman and Robin Shea, both accomplished bloggers on workplace issues, join XpertHR Legal Editor David Weisenfeld for a wide-ranging discussion about employee social media use. Generally speaking, employers can hold an employee responsible for posts on their personal social media accounts. But there are lots of exceptions to the rule.

"Employers can't get too draconian or employees will perceive them as Big Brother," said Hyman. "The message shouldn't be 'don't post political stuff.' It should be 'let's be respectful.'" Shea asserted that employers must avoid content-based judgments. "You can't allow pro-Biden posts and not pro-Trump posts." Both agree there may be situations where employers may need to hold employees accountable for what they post on their personal social channels (e.g. harassment or calls for violence).

A new school year has started, and it is presenting unprecedented challenges for working parents and employers. Many schools are physically open on a reduced schedule or 100% remote. The US Department of Labor recently tried to clear up confusion regarding an employee's eligibility for leave under the Families First Coronavirus Response Act (FFCRA) when a child's school is on a hybrid or remote schedule.

On this podcast, Littler employment shareholder Jeff Nowak joins XpertHR Legal Editor David Weisenfeld to discuss a host of back to school leave issues. Nowak is sympathetic to the plight many parents are facing, but said they cannot take leave under the FFCRA for the hours or days that their child's school is open. However, he advises employers to look for creative solutions when possible in noting that they will help them to be an "employer of choice" when the coronavirus pandemic is over.

HR is at a tipping point, and must take a fresh look at how it approaches job candidates and employees. That's according to Ira Wolfe, author of "Recruiting in the Age of Googlization: When the Shift Hits Your Plan," who joins XpertHR Legal Editor David Weisenfeld to discuss recruiting challenges during this time of uncertainty. Wolfe is the president of Success Performance Solutions and often presents at SHRM conferences.

In our continued look at diversity and inclusion issues, corporate culture consultant Joy Stephens joins XpertHR Legal Editor David Weisenfeld to discuss the importance of having serious conversations about racial inequality to create greater understanding among your employees. That includes raising questions with your management team.

"If black people make up 10% or 11% of the country, why don't they make up 10% or 11% of the leadership team?" asked Stephens. "If you have an all-white executive board, ask yourself why." Noting that diversity is no longer an expendable line item, Stephens said she would like to see these conversations extend to other marginalized groups. "The differently abled, LGBT employees and others also suffer from microaggressions," noted Stephens. "All of them need that same attention."

Employers have had to adopt a host of new policies and procedures during the COVID-19 crisis and must continue weighing changes that were unthinkable just a few months ago.

This podcast features unique insights on ways to answer employee questions and prepare for future challenges from Ogletree Deakins employment attorney Kathy Dudley Helms, who heads her firm's Columbia, South Carolina office and Lin Hearne, Director of HR Operations for Acute Care at Prisma Health. Helms and Hearne share perspectives from the compliance side and the practical side on:

• Remote work policies;
• Visitor and mail policies;
• Bonus pay;
• Childcare issues; and
• Communicating changes to employees.

The Supreme Court broke new ground with its 6-3 ruling that an employer that fires someone merely for being gay or transgender violates Title VII of the Civil Rights Act. The Court's decision is a major victory for LGBT employees, who had lacked basic job protections in more than half of the states.

Anthony Oncidi, head of the labor and employment group for Proskauer's Los Angeles office, joins XpertHR Legal Editor David Weisenfeld to discuss the ruling's significance, what it means for employers and what the next big workplace issue will be at the nation's highest court.