US Regional Employment 2020 Comparisons

Last Updated September 30, 2020

Law and Practice

Authors



Barnes & Thornburg LLP has offices in Fort Wayne, Indianapolis, Elkhart and South Bend, with a complement of 38 attorneys and paralegals. The firm's key practice areas are employment litigation, traditional labor, OSHA, immigration, supervisor training, employment counseling, trade secrets and non-compete claims, employment contracts, class-action defense, state and federal laws, NLRB, and affirmative action plans. Barnes & Thornburg attorneys routinely defend clients against claims of wrongful discharge, harassment, discrimination, workplace defamation, breach of contract, invasion of privacy, ERISA violations, illicit drug testing and other federal and state law claims, and enforce non-competition and non-solicitation agreements. The firm’s extensive traditional labor practice encompasses defending against unfair labor practice charges and union-organizing campaigns, negotiating and administrating union contracts, and coaching and training on lawful union-avoidance techniques.

The COVID-19 pandemic will likely change the workplace permanently, not simply because of the immediacy of the 2020 pandemic, but also as employers realize their workplaces must be prepared for future airborne or other viral outbreaks. Although the USA has previously experienced viral outbreaks (SARS, MERS, H1N1), those outbreaks were limited in terms of geographic spread. The highly contagious nature of SARS-CoV-2 (the new coronavirus that causes COVID-19) has affected employers, employees, their workplaces, and their families, all while federal, state, and local governments and health authorities have struggled to understand the spread of the virus and to contain and mitigate the spread through shutdowns, staggered reopenings, and containment measures.

Some employers have faced downturns, closures, and reductions in force; others have struggled to keep up with consumer demand and to overcome worker shortages. Employers have:

  • adapted to repeated updates to federal, state, and local laws addressing pandemic-related financial assistance, leave, accommodation, safety processes, and screening;
  • changed the way workers interact with each other in traditional, shared workspaces and non-traditional remote locations (ie, home work spaces); and
  • moved to remote means of handling employee onboarding, training, transfer of information, supervision, investigations, and other processes.

For the foreseeable future, the workplace will likely remain changed as employers seek to protect their employee populations and limit the risk that their workplaces become sites of community spread. Remote work has allowed for some employers to maintain productivity and service, potentially becoming – at least to some degree – the new “norm.” This, in turn, may impact commercial real estate if employers shrink their physical workplaces due to permanent reliance on remote work for some or all of their employees. For example, at the time of writing, Google had already announced its 200,000-plus employees would continue remote work until at least July 2021, and Facebook had announced that it will permit some employees to work from home permanently. Employees are also likely to proactively seek out employers that offer some type of remote work to avoid or limit long commute times, public transit, or even relocations.

Likewise, the COVID-19 pandemic forced large global employers to limit or ban travel (both within their own countries, as well as internationally). With the success of videoconferencing on platforms such as Zoom and WebEx, it is expected that global entities will revisit their travel budgets for sales, recruiting and other functions that have traditionally been performed face to face.

The impact of the COVID-19 pandemic is also likely to have long-term implications on safety and health. In response to the pandemic, most employers developed or updated existing infection control policies, sick leave policies and evaluated additional protective measures for their workforces, including physical barriers, additional spacing, and staggered shifts. Obviously, one size does not fit all with respect to reconfiguring workplaces, and employers must remain in compliance with federal and state laws protecting older workers, workers with disabilities, and other employment-related laws.

The "Black Lives Matter," "Me Too," and other social justice movements have pushed global entities, including those operating in the USA, to take a hard look at anti-discrimination and anti-harassment policies, and commitment to social justice and diversity. Employers have been re-examining how they manage their workforces and how they interact with their communities. Part of that process has resulted in employers reframing how they view sensitive issues, with many following a wider cultural trend in shifting the focus from simply preventing illegal conduct to adopting a proactive approach in promoting a more respectful and inclusive work environment.

Updated training focuses on legal requirements, civility, respect, and bias (including unconscious bias), and offers multiple avenues to bring concerns forward, coupled with an appropriate response to those concerns.

The pervasiveness of social media brings scrutiny and rapid societal response, implicating companies and employees who can be tied to them. An employer may now need to consider whether an employee’s public bad conduct may require separation, particularly when the conduct reflects racism or sexism.

The Black Lives Matter and Me Too movements have placed the spotlight on discriminatory actions and practices, including systemic racism and implicit bias, leading employers to provide additional support and training to their existing workforces in an effort to mitigate or eliminate bias, thereby enhancing their abilities to recruit, hire, and develop diverse workforces.

The law has struggled to keep up with rapid advances across industries. Before the COVID-19 pandemic, employers had already warmed to the "gig" economy approach, sometimes relying heavily on transient, temporary, and short-stint workers, many focused on particular projects or ventures. COVID-19 has pushed that emphasis as consumers make demands on gig-heavy economies, and individuals have trouble maintaining traditional employment.

With the steady increase in the gig economy, employers must understand the challenges and risks of contracting for services and promoting contracted services. While the economy has drastically changed, applicable US law has not.

Employers (or entities contracting for services or personnel) must consider the costs, savings, and potential risks related to particular choices in this framework. Misclassifying workers as "independent contractors" who should be classified as "employees" leads to the following potential legal issues: collective bargaining, taxes, wage and hour compliance, benefits, and anti-discrimination laws.

Independent contractors typically have no such protections under federal and most state employment laws. The question regarding whether a worker or group of workers is properly classified can easily lead to disputes before administrative agencies, and state and federal courts. See more detailed information on the independent contractor relationship in 2.1 Defining and Understanding the Relationship.

Most companies prefer to operate union-free for various reasons, such as avoiding limitations on dealing directly with their employees and minimizing the risk of work stoppages. Union membership has been on a significant decline in the United States for decades, with private sector union membership hovering around 6.5%. Their ranks remain strongest on the coasts (eg, New York and California). The South historically has the lowest unionization rate, but many states in the Midwest, including Indiana, have seen their union numbers dwindle increasingly in recent years. Indiana is a "Right to Work" state. As a Right to Work state, it is unlawful for a collective bargaining agreement in Indiana to require employees to pay union dues.

In 2020, there has been a national uptick in unionization efforts in the COVID-19 pandemic. To the extent that workers feel their workplace is unsafe or believe they should receive things such as “hazard pay,” companies may see unions try to exploit those issues to gain entry to the company.

The National Labor Relations Board (NLRB, or "Board") is vested with enforcing the National Labor Relations Act (NLRA), which provides workers with certain rights with respect to unionizing and discussing, protesting, etc their terms and conditions of employment. The NLRB governs private sector labor relations in the United States, and its regulations and administrative decisions apply to all 50 states. Consisting of five members appointed by the president, their views can change from administration to administration. Because the law is national in scope, no specific region, generally speaking, has a "leg up" on another when it comes to US labor law.

The NLRB has yet to weigh in on many pressing issues related to the COVID-19 pandemic. For example, it is not yet clear whether companies have to bargain with unions over their emergency measures undertaken in response to the virus. In addition, it is not clear whether bargaining with unions must be done face-to-face (as is customary) or via videoconferencing. Accordingly, companies looking to start or augment their business in the USA should continue to closely monitor important decisions coming out of the NLRB.

Employment

The default service relationship in the United States is that of employer and employee. Most states, including Indiana, are "at-will" employment jurisdictions, meaning either party (the employer or the employee) can terminate the relationship at any time and without having to provide a reason – provided, of course, that the termination decision is not otherwise prohibited by law (ie, due to discrimination or retaliation). In some situations, employees may have contracts specifying the terms and conditions of their employment. Such contracts are not required in the United States, but may be warranted depending on the type of employee in question (ie, an executive). Barring a formal written contract, terms defining the relationship are typically relegated to documents such as offer letters, job descriptions, employment policies, or employment handbooks.

Joint Employment

Joint employment is not the norm and applies only in limited circumstances, usually in a legal proceeding as a mechanism by which an employee attempts to recover damages against a third party. However, to show that a third party is a joint employer, they must do more than simply allow another employer’s employee to work at its facility; the third party must have exerted significant control over the employee and codetermine matters governing the essential terms and conditions of employment. Factors to consider in determining joint employer status are:

  • supervision of the employee’s day-to-day activities;
  • authority to hire or fire the employee;
  • promulgation of work rules and conditions of employment;
  • issuance of work assignments; and
  • issuance of operating instructions.

Independent Contractors

Contracting is commonplace in the United States and has become more prevalent in light of COVID-19 as more people have become comfortable working from home. The increase in the popularity of contracting has been matched by increased scrutiny from lawmakers and courts. There is no nationwide standard for determining whether a person is an independent contractor or an employee. Accordingly, most jurisdictions have come up with their own rules for determining employment status. For example, California recently adopted the ABC test, which requires that the worker be free from control and operate their own business, and that they also perform work that is outside the usual course of the hiring entity’s business. This last part can be difficult to meet, and has led to ride-share companies such as Uber and Lyft to announce they will be leaving California, at least temporarily. Depending on the outcome of 2020 elections, it is possible that the ABC test could be adopted on a more national scale.

For its part, Indiana has adopted a flexible approach, distinguishing employees from independent contractors based on various factors:

  • the extent of control that the employer may exercise over the details of the work;
  • whether or not the one employed is engaged in a distinct occupation or business;
  • the kind of occupation and whether this is usually done under the direction of an employer or by a specialist without supervision;
  • the skill required in the particular occupation;
  • whether the employer or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
  • the length of time for which the person is employed;
  • the method of payment, whether by the time or by the job;
  • whether or not the work is a part of the regular business of the employer;
  • whether or not the parties believe they are creating the relationship of employer and employee; and
  • whether the principal is or is not in business.

While no one factor is dispositive, the extent of control over the work performed by the worker is regarded by Indiana courts as the single most significant factor in determining the existence of an employer-employee relationship.

Internships

Internships have been subject to considerable scrutiny in the past few years – notably from the standpoint of whether private businesses can rely on unpaid interns. The US Department of Labor’s Wage and Hour Division has developed a test for evaluating whether an individual constitutes a "trainee" (intern) for the purposes of the FLSA. The factors considered in determining whether a for-profit employer lawfully can utilize an unpaid intern are the extent to which:

  • the intern and the employer clearly understand that there is no expectation of compensation – any promise of compensation, express or implied, suggests that the intern is an employee – and vice versa;
  • the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions;
  • the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit;
  • the internship accommodates the intern’s academic commitments by corresponding to the academic calendar;
  • the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning;
  • the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern; and
  • the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

See Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act.

The COVID-19 pandemic has negatively impacted the ability of employers to attract and retain foreign national talent. The pandemic, and the federal government’s response, disrupted virtually every aspect of the US immigration system. The processing of immigration benefits by US Citizenship and Immigration Services (USCIS) has dramatically slowed; visa processing abroad by the US Department of State (DOS) has ground to a halt; and entry into the USA has been restricted by several presidential proclamations.

Corporate Structure and Relationships

Employers are finding it increasingly difficult to sponsor foreign nationals for employment in the USA. Increased scrutiny by USCIS and DOS has resulted in lengthy delays in the adjudication process and greater rates of visa denials. The pandemic has resulted in even longer delays due to the temporary closure of local immigration offices for in-person services and the suspension of routine visa services by DOS. In addition, various presidential proclamations have prohibited a number of foreign national employees from seeking entry to the USA to initiate or return to employment.

Employers often consider the H-1B and L visa when sponsoring foreign nationals for employment in the USA. However, due to increased scrutiny and changes in the immigration processes for the above visa classifications, employers may also wish to consider the H-1B1, E, and TN visas in addition to the H-1B and L.

The H-1B visa is generally reserved for specialty occupations – positions requiring the theoretical and practical application of a body of highly specialized knowledge and that require the attainment of a bachelor’s degree or higher in a specific specialty or its equivalent, as a minimum for entry into the occupation in the USA. New H-1B petitions are sometimes subject to an annual lottery due to high demand and USCIS has conducted a lottery in recent years. In 2020, the lottery underwent a significant processing change and resulted in the implementation of an additional fee for employers. This classification has experienced increased scrutiny in recent years, resulting in lengthy processing delays and increased rates of denial. Of note, while several presidential proclamations limited the ability of foreign nationals to enter the USA on various visa classifications, Presidential Proclamation 10052 specifically restricted the ability of employees in the H-1B visa to enter the USA to initiate or resume employment.

The L visa is generally reserved for international companies seeking to transfer executives, managers, or specialized workers to the USA. Like the H-1B visa, the L visa has experienced heightened scrutiny, resulting in lengthy processing delays and increased rates of denial. In addition, a change in the immigration process for renewals has added to the length of time required for a renewal and increased costs. As with the H-1B visa, various presidential proclamations, including Presidential Proclamation 10052, have restricted the ability of employees in the L-1 visa classification to enter the USA to initiate or resume employment.

Due to the challenges of securing visa sponsorship for foreign national employees through H-1B or L visa classifications, employers are exploring alternatives to include the H-1B, E, and TN visa classifications.

The H-1B1 visa is reserved for citizens of Chile and Singapore. Like the H-1B visa, the H-1B1 is generally restricted to specialty occupations. Similar in many respects to the H-1B visa, the H-1B1 is attractive to many employers due to the relative ease and reliability of the H-1B1 sponsorship process. This visa classification is generally a more reliable and faster option than the H-1B visa, although there is concern with timing due to the suspension of routine visa services at US embassies and consulates because of the pandemic.

Another option for sponsorship of foreign national employees is the E visa. The E visa category includes treaty traders (E-1), treaty investors (E-2), and Australian specialty occupation workers (E-3). To qualify as an employee of a treaty trader or treaty investor, the employee must share the same nationality as the employer, and that the employee be engaged in the duties of an executive, manager, or specialized worker. As with the H-1B visa, employers have generally found the E visa to be reliable, fast, and cost-effective, although there is concern with timing due to the suspension of routine visa services at US embassies and consulates because of the pandemic.

The TN (NAFTA) visa allows employers to sponsor citizens of Canada and Mexico for employment in the USA in a professional capacity. While NAFTA has been replaced by the USMCA Agreement, USMCA retains the TN visa classification. To be eligible for the TN classification, the profession must be noted on the treaty (list) and the foreign national employee must satisfy the qualifications for eligibility for employment in that profession. Employers have generally found this visa classification to be reliable, fast, and cost-effective. Of note, an employer seeking to sponsor a Canadian citizen for employment under this visa classification may simply have the sponsored employee present an application package directly to a US Customs and Border Protection agent. Unfortunately, Mexican citizens requiring a visa are generally required to attend an appointment at a US embassy or consulate and there is concern with timing due to the suspension of routine visa services at US embassies and consulates because of the pandemic.

To the extent that the company desires to remain union-free, the importance of hiring a strong human resources and employee relations staff who can establish a positive culture and get buy-in from the managers cannot be overstated. The vast majority of union campaigns start because of perceived toxicity in the workplace (eg, favoritism or no outlets for employees to express their views). Being union-free vests the organization with the autonomy to make decisions about policies and other terms and conditions of employment. If the employees are represented by a union and/or ever vote a union into the workplace, an employer has a legal obligation to bargain virtually every potential change to workers’ terms and conditions employment with the union. Accordingly, many employers strive to remain union-free in order to enjoy maximum flexibility.

It is important to note that in 2020, there has been a national uptick in unionization efforts in the COVID-19 pandemic. To the extent that workers feel their workplace is unsafe or believe they should receive things such as “hazard pay,” companies may see unions try to exploit those issues to gain entry to the company.

The pre-hire and interviewing process is a significant opportunity for Indiana employers to wisely identify and hire the strongest candidates for the available positions. Prior to the employment interview, employers should consider requiring applicants to complete an employment application that accurately describes prior educational and work history, reasons for leaving prior employment, references, and any special skills. While many applicants currently seek to replace completing the work history part of the application with a resume, employers should consider requiring the applicants to complete the application as well, as the questions on the application seek additional information not included on a resume, such as dates of employment and reasons for leaving.

As a best practice, the employment application should include a certification by the applicant that he or she provided complete, accurate, and truthful information on the application. This certification provides employers with a means to limit or mitigate damages in an employment discrimination case. The employment application should also contain an affirmation of the at-will nature of the employment relationship, and employers should refrain from making verbal or written assurances of "long-term" or "permanent" employment, or other statements that could adversely affect the employer’s ability to successfully assert that the employee was employed at-will at a later time. In addition, to the extent that any post-offer testing is to be conducted, employers should include that information in the employment application to ensure that applicants are aware of the requirements and allow them to request reasonable accommodations, if needed.

The employment application and the interview process should not ask questions or elicit information about legally protected characteristics such as age, national origin/race, religious practices, pregnancy or desire to have children, sex, sexual orientation or gender identity, or medical conditions/disabilities, and similarly should avoid questions that would elicit this type of information.

A common aspect of the hiring process is a limited criminal background check for the successful candidate. While this due diligence provides benefits for employers, such as a defense to a negligent hiring claim and the avoidance of a high-risk hire, this is an area of the law that is evolving on the national, state, and local level. The Equal Employment Opportunity Commission (EEOC) has taken the position that, given that minorities are disproportionately adversely affected with regard to convictions and arrests, a criminal conviction should only be considered if it is job-related to the particular position being sought. Employers should consider doing a case-by-case analysis, and review the type of conviction, the date of the conviction, the nature of the job in question, and any exceptional circumstances before making a decision about employment based on a criminal conviction. Indiana has enacted a law that makes it unlawful for employers to refuse to employ or discriminate against a person because of a conviction that has been expunged. In addition, numerous cities across the country have been enacting "ban the box" laws that prohibit even having questions about criminal backgrounds on the employment application. For example, Indianapolis has enacted an ordinance applicable to any company doing business with the City. Thus, requests for background checks and the process must be appropriately tailored to the state and local laws, and proper authorization must be acquired when third-party vendors are used for this purpose prior to completing the background checks.

Another common component of a background check involves credit checks. Again, because credit checks tend to disproportionately disqualify minorities, it is best practice to conduct a similar analysis of the job-relatedness of a credit check to the position in question to avoid unnecessary legal exposure.

The Americans with Disabilities Act (ADA) also imposes restrictions on employers with regard to what information can be sought or discussed during the hiring process. The ADA generally prohibits employers from any pre-employment inquiries about an applicant’s medical condition. Thus, the employer may not ask any questions designed to elicit medical information prior to a conditional job offer being made.

After a conditional offer of employment has been made, the employer may then conduct a post-offer medical examination, provided that this is required of all applicants for the position. However, to withdraw an offer of employment, the employer must be able to demonstrate that the individual is unable to perform the essential functions of the job in question, even with reasonable accommodations. Thus, to the extent that post-offer testing is to be completed, employers should ensure that the components of the test directly correlate to the essential functions of the position. As this is a highly technical area of the law, employers are well advised to seek legal assistance with these determinations.

The Genetic Information Nondiscrimination Act (GINA) similarly imposes restrictions on employers during the hiring process (and afterward), making it unlawful for employers to request genetic information with respect to employees. Because genetic information is defined broadly to include family medical history, employers should ensure that any post-offer medical examinations, even those conducted by occupational doctors, do not elicit this information.

Finally, the ADA requires employers to provide reasonable accommodation to disabled applicants to permit them to participate equally in the hiring process. While reasonable accommodations may take many forms, such as having an interpreter for a hearing-impaired applicant, administering a test in an accommodated format (more time, reading the questions, answering in a different format (eg, dictating), ensuring access to the testing site, etc), the employer is not required to "carve off" essential functions of the position in question as such an accommodation would not be reasonable. During the COVID-19 pandemic, reasonable accommodations may vary, such as utilizing a virtual interview process.

The enforceability of restrictive covenants is heavily dependent upon state law, which can vary dramatically on this subject. Some states – such as California and North Dakota – consider non-competition and non-solicitation covenants to be void and unenforceable under almost all circumstances, whereas other states – such as Louisiana and Oklahoma – will enforce contractual restrictions, but only if they meet specific criteria set forth by state statute. Accordingly, careful attention should be paid to the state law controlling the covenant at issue, either set forth by the parties in the contract or that may be determined by the various jurisdictions where the parties are located.

Indiana will enforce restrictive covenants only if reasonable in scope and where the covenants do not unnecessarily interfere with a person’s livelihood. Accordingly, in order for a restrictive covenant to be enforceable, an Indiana employer must establish that it has a legitimate interest to be protected by the agreement, and that the restrictions imposed on the employee are reasonable as to time, activities and geographic area. To show a legitimate, protectable interest, the employer has to demonstrate that the former employee has gained a unique competitive advantage or ability to harm the employer before it can seek the protection of a covenant. In other words, not all employees in a company would be subject to a valid restrictive covenant – post-employment restrictions on workers such as menial laborers who have no knowledge that could harm the employer (ie, such as a janitor or cashier) likely would be disregarded as unreasonably overbroad. On the other hand, if an employee has unique knowledge of a company’s trade secrets or proprietary business practices and methods that could be used for a competitor, an Indiana court may enforce the restrictions – provided that they also are reasonable in terms of time, geography, and the activities that are limited.

There is no definitive test for what is reasonable in terms of time; this depends on the facts of each particular situation. Generally, two years is regarded by courts to be a reasonable period. With respect to geography, the reasonableness of an agreement’s geographic scope depends on the interest of the employer that the restriction serves. Correspondingly, blanket clauses that prohibit an employee from calling on all customers of a company, including those that pre-date the employee’s employment or that the employee never serviced, likewise are considered overbroad and unenforceable. For the same reasons, prohibiting an employee from working for a competitor in any capacity also would be regarded as overbroad.

Another area in which states can vary wildly on this subject concerns what happens if a part of the covenant is determined to be unenforceable. Some states will throw out the entire covenant and refuse to enforce it, while others will permit the court to modify the terms to make it enforceable. Indiana adopts a middle-ground position, and will only strike out terms that are unenforceable, and will not alter or modify the text to make it enforceable.

Recently, Indiana has tightened its enforcement of such covenants. Earlier in 2020, the state enacted legislation adding restrictions to covenants involving physicians. Also, in 2019, the Indiana Supreme Court struck down a covenant that prohibited an employee from recruiting “any individual” employed by his former employer to work for a competitor. The court concluded that the ban on recruiting “any individual” did not serve a legitimate protectable interest of the former employer, was too broad, and also could not be repaired by striking out terms. As such, it was unenforceable. Consequently, employers that intend to have employees execute enforceable restrictive covenants in Indiana must pay close attention to changes in the law and carefully draft the provisions to comport with those changes and so they will not be perceived to be unreasonable.

Employees generally enjoy a certain zone of privacy, even while they are on an employer’s premises. For example, employers should refrain from searching an employee’s person or the interior of their private vehicle. An unwanted touching could be viewed as a battery that could subject the company and the particular manager to liability. Detaining an employee in a room and refusing to allow him or her to exit could be viewed as false imprisonment, resulting in the potential for liability.

Employers that provide electronic equipment for employees to use in connection with their job duties (ie, laptops and internet access) are generally permitted to adopt policies notifying employees of the right to monitor the use of such equipment and reminding employees of their ownership interest in these devices. Employers also can impose reasonable requirements on how the employees use the equipment. For the most part, these policies have been upheld on the grounds that employees have no reasonable expectation of privacy while using company equipment. However, this is not without limits: employers cannot demand that an employee involuntarily turn over their private cell phone, divulge their password to a personal email or social media account, or attempt to hack into the employee’s personal accounts – even if the employee used company equipment to access the private accounts. In short, aside from issues relating to the terms and conditions of employment (ie, wage/hours) on nonworking time, employers have had a fairly wide berth in terms of regulating access and content on the electronic devices and networks they make available for employees.

With respect to monitoring employee activities in the workplace, this generally is permitted under federal and state law; however, employers should exercise caution in doing so and should make sure that the employer’s actions are reasonable. Employees typically have no reasonable expectation of privacy on a factory floor. However, the same is not true for a bathroom or locker room. Thus, an employer can conduct video surveillance of work areas, lunchrooms, offices, parking lots, and any other area of its business, with the exception of those areas where employees have a reasonable expectation of privacy from visual observation (such as restrooms and showers).

COVID-19 has altered the application of some traditional privacy rules. Generally, conducting medical tests or examinations on employees is prohibited. However, in the wake of COVID-19, the Center for Disease Control (CDC), and state and local authorities permit reasonable measures, including temperature checks, asking questions regarding potential COVID-19 exposure, and even testing to check if an employee has an active case of COVID-19, to help curb the community spread of the virus. Indeed, under the ADA, mandatory testing to check for an active case of COVID-19 (but not to check for COVID-19 antibodies) is permissible if “job related and consistent with business necessity.” Regulatory guidance from the EEOC confirms that COVID-19 testing meets these parameters due to the ongoing pandemic. Further, while all medical information (including information related to COVID-19) normally must be kept confidential, an employer may discreetly disclose the name of an employee who is COVID-19 positive to a public health agency.

A number of federal laws prohibit discrimination, harassment or retaliation based on legally protected characteristics or legally protected activity. Legally protected characteristics include age, gender (including sexual orientation and/or gender identity), pregnancy, race, color, national origin, disability, military or veteran status, genetic information, religion, or citizenship status. In addition to federal laws, many states – as well as local governmental entities such as cities, counties and townships – have enacted laws that expand the coverage of legally protected characteristics. The Indiana civil rights laws generally follow their federal counterpart. Moreover, many counties and municipalities in Indiana have adopted ordinances covering protected characteristics such as gender identity, marital status, and sexual orientation. Thus, it is important to understand and abide by all the laws in the jurisdiction in which the employer is located.

Employers should ensure that supervisory training is periodically provided that identifies the types of behaviors that are inappropriate in the workplace, the methods to report concerns, their role as a member of the management team (both in communicating with applicants and employees and in the investigatory process), and how to appropriately document and issue any discipline needed. Employees should also receive training on the applicable policies, the types of behaviors that would violate the policies, the mechanism to report concerns, and the non-retaliation provisions of the policies.

Critically examining corporate culture and policies in these areas, and ensuring that employees – and especially managerial personnel – are properly trained to root out bias, harassment, and prejudice has taken on even greater importance given the growing social awareness of these issues over the last few years. Coupled with the widespread use of social media, this has made many employers rethink their approach on these subjects, both from a legal and a general business standpoint. Part of that process has led companies to shift their focus from just preventing illegal conduct to actively promoting more inclusive and respectful workplaces. Notably, there has not yet been a general change in the legal standards by which employee performance is measured. However, many employers have taken it upon themselves to adjust how they view these sensitive topics, from adopting policies and training programs consistent with promoting a culture of inclusion, to paying more attention to equity and implicit bias concerns raised by employees.

The Occupational Safety and Health Administration (OSHA) is the federal agency charged with enforcing all applicable safety laws and regulations in the OSH Act. Roughly 22 states have applied for and have been granted authorization to establish state plans to administer and enforce the applicable safety and health compliance program for private employers in their states. While state plans must be at least as effective as the federal standards, states can be stricter than their federal counterpart with regard to regulatory compliance, and some states are more restrictive, a factor that a potential employer should evaluate. Indiana has an approved state plan, and the Indiana Occupational Safety and Health Administration administers the OSHA statutory and regulatory mandates. Indiana typically follows the federal OSHA regulations and does not implement standards that are stricter than the federal guidelines. Generally, the employer’s obligation under the OSHA statute and regulatory framework runs to employees, not to third-party non-employees or members of the public. The COVID-19 pandemic has resulted in a barrage of employee complaints that the employer is not providing them a safe work environment, which has challenged the Agency given its current resources. In addition, at present, the majority of IOSHA investigations are being conducted virtually. Thus, employers are challenged both with staying current with federal, state, and local guidance, and quickly responding to these complaints as they arise.

The Indiana worker’s compensation framework has several advantages for employers, including relatively modest statutory caps on benefits available under the Act, the ability of the employer to direct authorized medical care, and a robust exclusivity provision. The Indiana Worker’s Compensation Act is adjudicated through an administrative law structure, with hearings being held by a single hearing member assigned to that geographic location. Appeals from the decision of the single hearing member may be appealed to the full Board.

Employers throughout the USA face federal laws that address compensation (for instance, minimum federal wage and overtime). However, state and local governments impose broader and/or different mandates related to pay and benefits, including regarding paid time off, sick pay, vacation pay, minimum wage, reimbursement of business expenses, unemployment compensation benefits, workers compensation benefits, tax rates, and related areas. Quite simply, the cost of doing business in the USA varies by location (state, county, and/or municipality).

In addition, the COVID-19 pandemic has brought changes to the federal statutory framework governing benefits and benefit plans, enhanced unemployment compensation benefits, and employee leave (paid and unpaid). In this regard as well, certain state and local governments have imposed broader and/or different mandates.

At-Will Terminations

If an employee is at-will, this should be disclosed to employees up front, preferably in writing (employment application, offer letters, and employee handbooks and acknowledgment forms), so there are no surprises if they are terminated at a later point in time. Care also must be taken throughout employment to ensure that the at-will status is maintained.

Terminations by Operation of Contract and Severance

If the employer and employee enter into an employment agreement that addresses how the employment relationship will end, the terms of the agreement will normally govern the situation. Employers should pay close attention to the language of the employment agreement, especially with defined terms addressing terminations for "cause," "change of control," and provisions describing the renewal of the contract. Employees typically are not entitled to severance unless the employer agrees to provide it pursuant to the terms of an agreement or policy. If the employer offers severance, best practices dictate that such payments be contingent upon the employee releasing and waiving any claims against the employer (unless a waiver is precluded by explicit operation of law).

Separation Agreements and Releases

Separation or release agreements are treated as contracts, and generally will be subject to enforcement in a similar manner. One significant caveat, however, concerns waivers for employees over age 40. The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination against individuals over age 40 and applies to companies with 20 or more employees. In order for a waiver of claims under the ADEA to be valid, it:

  • must be written in plain language understandable by the average individual eligible to participate;
  • must specifically refer to ADEA claims and rights;
  • must not cover prospective (future) rights;
  • must be in exchange for valuable consideration in addition to any benefits or amounts to which the employee was already entitled;
  • must advise the employee, in writing, to consult with an attorney before signing;
  • must provide the employee 21 days to consider the agreement; and
  • must be revocable at least seven days after the employee signs it.

In the case of a group termination – which can be as few as two employees – employees age 40 or over must have at least 45 days (not 21 days) to consider the agreement (with a comparable seven-day revocation period), and the affected employees must be provided with a memorandum identifying:

  • the class of employees eligible to receive the severance package;
  • the specific eligibility requirements;
  • time limits on participation;
  • the ages of all employees selected for the program; and
  • the ages of all employees in the same job classification or organization who are not eligible or selected for the program.

Beyond federal law, some states (although not Indiana) require additional provisions to ensure that a release is valid. As such, the current state of the law in the applicable jurisdiction must be reviewed before any release is prepared and presented to an employee.

WARN Obligations

Terminating multiple employees may trigger requirements under another federal law, the Worker Adjustment Retraining and Notification Act of 1988 (WARN), if a sufficient number of employees are affected. This law applies to any business that employs 100 or more employees (excluding part-time employees). Under the law, if an employment loss results in a "plant closing" or "mass layoff," a qualifying employer must provide affected employees and certain government officials at least 60 days' advance notice of the event. Employers who fail to provide the requisite notice can be required to pay the affected employees’ back pay for each day of the violation, reimburse them for the loss of benefits and any medical expenses they incurred, and may also have to pay civil penalties.

In addition to the federal WARN Act, many states have their own mini-WARN acts. Indiana does not have a mini-WARN statute and follows the federal law.

COVID-19 forced many employers to quickly shutter their businesses and lay off large numbers of workers as a result of government lockdown orders, resulting in a widespread failure to provide the required WARN notices. WARN (and many of the corresponding states with mini-WARN statutes), however, expressly recognizes an unforeseeable business circumstances exception where an employer is excused from the statutory timetable – provided exigent circumstances exist and the employer provides the applicable notices as soon as practicable.

Additional COVID-19 Considerations

COVID-19 has presented several additional challenges with respect to terminations. For one thing, the Families First Coronavirus Relief Act (FFCRA) has created new leave mechanisms for qualifying employees, including paid leaves for limited amounts of time, and, correspondingly, potential new causes of action for interfering with these leaves or retaliating against employees for taking them. Additionally, employers who took advantage of Paycheck Protection Program loans and who terminated employees or reduced their work schedules will be obligated to rehire or reinstate employees to the extent they intend to have the loans forgiven pursuant to the terms of the legislation. Lastly, terminating an employee because they have the virus or are suspected of having the virus also raises the spectre of disability discrimination or retaliation.

Alternative Dispute Resolution

The law in the United States generally favors the private adjudication of disputes.

If the employer and employee have entered into an enforceable agreement to arbitrate a dispute, and the disputed matter is the type of claim that the parties agreed to arbitrate, courts typically will order the parties to proceed to arbitration. Arbitration can cover the full range of employment-related disputes.

Generally, in Indiana, and most other states, employers can easily retain workers on an "at-will" basis so that no "breach of contract" claims can be brought against the company upon an employee’s separation. Care must be taken, though, to ensure that a company follows a state’s requirements for keeping employees at-will. In Indiana, employees generally are presumed to be at-will absent an agreement with the company to the contrary. A best practice in Indiana is to have "at-will disclaimers" included in offer letters as well as any employee handbooks/manuals that state all employees remain at-will unless the company enters into a written agreement stating to the contrary. Having such disclaimers in all handbooks/employee manuals remains critical in the era of COVID-19. In the event that the company offers employment contracts to some or all of its workers, a company that violates those agreements – for example, terminating the workers for a reason arguably not provided for in the agreement – may face contractual claims for breach of contract. To the extent that claims for contractual rights are brought, they most often are filed in court but can, depending on the contract, also be pursued in arbitration.

In union environments, the labor agreement between the parties controls employees’ terms and conditions of employment, including termination decisions. Violations of labor contracts most often are adjudicated in arbitration, including disputes over employee discharges.

Damages for contractual claims most often are tied to the alleged harm suffered. For instance, if an employee had a five-year employment agreement and argued he or she was terminated improperly three years prematurely, the employee, if successful, would be entitled to three years of pay. It is important to note, however, that some contracts may provide for one or both parties to receive attorney’s fees or other, additional categories of damages in the event they prevail in a dispute under the agreement, which can be significant sums.

There are a number of federal laws that prohibit discrimination, harassment or retaliation based on legally protected characteristics or legally protected activity (as listed in 4.3 Discrimination, Harassment and Retaliation Issues). In addition to federal laws, many states – as well as local governmental entities such as cities, counties and townships – have enacted laws that expand the coverage of legally protected characteristics. The Indiana civil rights laws generally follow their federal counterpart. However, Indiana law will also protect the off-duty use of tobacco, for example, for which there is no federal counterpart. Moreover, many counties and municipalities in Indiana have adopted ordinances covering protected characteristics such as gender identity, marital status, and sexual orientation. It is important to understand and abide by all the laws in the jurisdiction in which the employer is located.

Employers are well advised to ensure that supervisory training is periodically provided that identifies the types of behaviors that are inappropriate in the workplace, the methods to report concerns, their role as a member of the management team (both in communicating with applicants and employees, and in the investigatory process), and how to appropriately document and issue any discipline needed. Employees should also receive training on the applicable policies, the types of behaviors that would violate the policies, the mechanism to report concerns, and the non-retaliation provisions of the policies. In light of the Me Too and Black Lives Matter movements, many employers are also including diversity training designed to foster an inclusive and respectful workplace, and to discuss varying perspectives employees may bring to the workplace as a result of their life experiences, and clearly communicating the types of behavior that will not be tolerated. Employers are also becoming engaged in the social justice movement, supporting these movements in a variety of ways.

No response has been provided.

There are a variety of federal and state laws that protect employees who report perceived unlawful acts. Even if it is ultimately determined that the employee’s perception is wrong, the employee generally will still be protected unless the employer can establish that the employee knew he or she was making a false report. The types of conduct that afford this protection include on-the-job safety issues; violation of federal or state anti-discrimination laws; violation of the Affordable Care Act; wage payment violations; environmental violations; fraud against the government; financial misconduct, including false reporting of financial information or tax evasion; and misappropriation or misuse of investor funds in a public company. To successfully defend against such a whistle-blower claim, the employer must typically provide substantial evidence of its non-retaliatory reason for the discipline or discharge. Many statutes give the governmental entity authorized with evaluating these claims the power to reinstate a terminated employee before making a final decision on whether the termination was lawful.

The growth of social justice movements has created increased awareness of the ability to pursue government redress of grievances. While Indiana has not yet done so, some states have adopted laws prohibiting confidentiality provisions in separation agreements that would prevent employees from discussing the facts of a discrimination or harassment claim with government agencies. The impact of COVID-19 also has seen employees reach out to government officials to express concerns over a variety of health-related issues, including hygiene protocols and adherence to social distancing and mask mandates that have been adopted by government bodies. These contacts can result in investigations and potential actions by law enforcement, state health agencies and the state and federal OSHA.

The growth of various social justice movements has caused many employers to reassess their training programs with respect to discrimination and harassment. The previous focus on simply preventing illegal conduct has shifted to one fostering a culture of inclusion. Part of that process involves giving greater emphasis to identifying bias, including unconscious or implicit bias, a greater awareness and sensitivity to these issues, particularly on the part of human resources personnel and managers, and strengthening the mechanisms by which employees can express concerns and by which those concerns will be evaluated. The promotion of environments that encourage reporting and offer multiple avenues to bring concerns forward, coupled with an appropriate response to the behaviors at issue, are important components of such a program.

In addition to wage and hour claims (addressed in 6.3 Wage and Hour Claims), certain forms of discrimination claims are often brought in a class action under Federal Rule of Civil Procedure 23. A class action allows a large number of employees citing similar alleged discriminatory practices to join against an employer to make claims for monetary and equitable relief.

Potential damages vary depending on the statute under which an employment-related claim is brought, but may include items such as unpaid wages, back pay, front pay, punitive or liquidated damages, and attorney's fees. The court can also order the employer to reinstate/rehire employees found to have been improperly discharged.

In class and collective actions, the remedies may be multiplied by the number of employees implicated. Seemingly minor errors in the payment of wages that by themselves would not cause concerns about litigation by an individual plaintiff can mutate into high-stakes litigation when large numbers of employees and former employees combine and become eligible for unpaid wages, liquidated damages and penalties, and attorney fees and costs, particularly when the potential minor errors span a number of years.

Barnes & Thornburg LLP

11 South Meridian Street
Indianapolis, IN 46204

+1 260 425 4657

+1 260 424 8316

Kanderson@btlaw.com btlaw.com/en/work/practices/labor-and-employment
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Law and Practice in Indiana

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Barnes & Thornburg LLP has offices in Fort Wayne, Indianapolis, Elkhart and South Bend, with a complement of 38 attorneys and paralegals. The firm's key practice areas are employment litigation, traditional labor, OSHA, immigration, supervisor training, employment counseling, trade secrets and non-compete claims, employment contracts, class-action defense, state and federal laws, NLRB, and affirmative action plans. Barnes & Thornburg attorneys routinely defend clients against claims of wrongful discharge, harassment, discrimination, workplace defamation, breach of contract, invasion of privacy, ERISA violations, illicit drug testing and other federal and state law claims, and enforce non-competition and non-solicitation agreements. The firm’s extensive traditional labor practice encompasses defending against unfair labor practice charges and union-organizing campaigns, negotiating and administrating union contracts, and coaching and training on lawful union-avoidance techniques.