By now, most employers have taken a variety of steps to address the COVID-19 pandemic, including, for example, furloughs, pay cuts, telework arrangements and outright closures. Talk has now turned to restarting the economy and returning to some semblance of normal life. As we enter this next phase of an unprecedented situation, employers should consider several issues. The following list is by no means exhaustive but touches on some of the key concerns for employers.
Wage and Hour Issues: Many employers have permitted non-exempt employees to telework for the first time. In many cases, this has been limited by the fact that business has slowed significantly and overtime has not been an issue. As businesses prepare to reopen, these employees may have more work to do from home and managers will have to be vigilant in managing overtime and clear in their directions to employees. Under federal law, non-exempt employees must be paid for all hours worked and must receive premium pay for hours over 40 in any workweek. Even unauthorized hours must be paid, with the issue of the unauthorized work time addressed separately. Moreover, once business resumes, employers will have to reset rules and expectations regarding telework.
Returning Employees to Work: Unfortunately, restarting the economy is probably not as simple as flipping on a switch. The same goes for restarting business operations. It is unlikely that businesses will call back all of their employees at the same time and some jobs may simply be eliminated. The sales team of ten that was in place at the beginning of the year may only be a sales team of seven or eight going forward. The decision of who returns and when will have to be considered carefully by employers as it may be the basis for a variety of discrimination claims. Similarly, employees who have utilized the new paid sick leave available under the FFCRA are protected from retaliation and may have claims based on decisions related to returning to work. Along the same lines, employers should be particularly vigilant in preventing harassment and discrimination against Asian-American employees.
WARN Issues: Most employers did not issue WARN notices for furloughs on the basis that the anticipated layoff would be less than six months. Some businesses may determine that certain closures or furloughs may become permanent or extend beyond six months. In these cases, the issue of WARN notices needs to be re-examined.
Anticipating Litigation: A sudden increase in the unemployment rate may bring with it an upswing in litigation. Employers should anticipate an increase in employment litigation over the next several months. Every issue raised above could be the basis for a legal claim. As a result, employers need to be mindful of their decision making processes and utilize objective criteria to the greatest extent possible. Employers should also take steps to thoroughly document the reasons for their decisions regarding employment matters and recognize that many of these decision may be subject to close scrutiny in the future.
Obviously, there are many more issues that may come up in connection with employers restarting their businesses. Please feel free to contact any member of our Labor & Employment Group or the KMK Coronavirus (COVID-19) Response Team for further assistance.
KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.
ADVERTISING MATERIAL.
© 2025 Keating Muething & Klekamp PLL. All Rights Reserved
Topics/Tags
Select- Labor & Employment Law
- Employment Law
- Discrimination
- EEOC
- Labor Law
- Americans with Disabilities Act
- Department of Labor
- OSHA
- Pregnancy Discrimination
- Coronavirus
- Title VII
- NLRB
- Workplace Violence
- Non-Compete Agreements
- Supreme Court
- Reasonable Accommodation
- Religion Discrimination
- FLSA
- Department of Justice
- Compliance
- NLRA
- National Labor Relations Board
- Diversity
- Wage & Hour
- Privacy
- Performance Improvement Plans
- Department of Homeland Security
- Immigration and Customs Enforcement
- Foreign Nationals
- Immigration and Nationality Act
- Employee Benefits and Executive Compensation
- Federal Trade Commission
- Arbitration
- FMLA
- Overtime Pay
- Employment Litigation
- Workplace Accommodations
- Artificial Intelligence
- Inclusion
- LGBTQ+
- Litigation
- IRS
- Medical Marijuana
- Social Media
- Employer Policies
- Disability Discrimination
- Retirement
- National Labor Relations Act
- Accommodation
- Sexual Orientation Discrimination
- Race Discrimination
- Employer Handbook
- ERISA
- ADAAA
- Medical Cannabis Dispensaries
- Unions
- ACA
- Affordable Car Act
- Employer Rules
- Whistleblower
- United States Supreme Court
- Sexual Harassment
- Technology
- Federal Arbitration Act
- Transgender Issues
- Disability
- 401(k)
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Benefits
- Paycheck Protection Program
- Class Action Litigation
- Disability Law
- Gender Identity Discrimination
- Posting Requirements
- E-Discovery
- Evidence
- Securities Law
- Family and Medical Leave Act
- Preventive Care Benefits
- Environmental Law
- Health Savings Account
- Privacy Laws
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Representative Election Regulations
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Telecommuting
- Affirmative Action
- Compensable Time
- Electronically Stored Information
- Equal Opportunity Clause
- Security Screening
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Occupational Safety and Health Administration
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Unemployment Insurance Integrity Act
- Classification
- Confidentiality
- Disability Leave
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- Misclassification
- National Origin Discrimination
- Retaliation
- Social Media Content
- State Minimum Wage
- Wage Increase
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
- Taxation
Recent Posts
- OSHA’s Updated Inspection Program: What Employers Should Know and Expect
- SCOTUS Lowers Bar for Reverse Discrimination Claims
- Revisiting ADA Compliance: Lessons from a Recent Court Decision
- Federal Court Strikes Down Part of EEOC Rule Requiring Accommodations for Elective Abortion Under the PWFA
- More on Equal Opportunity: Executive Order Seeks to End Disparate Impact Liability to promote Equal Opportunity
- PIP This: The Expansion of Actionable Adverse Employment Decisions in the Wake of Muldrow v. City of St. Louis
- The Independent Contractor Tug-of-War: Navigating the Latest DOL Shifts
- ICE Raids and Audits – What’s an Employer to Do
- New Online Registration Requirements for Foreign Nationals
- Workplace Violence: Are You Taking Required Steps to Protect Your Employees?