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John Dudrey

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John Dudrey is a partner in the firm’s Labor & Employment group. His practice focuses on wage and hour compliance, representation of employers with unionized workforces, and complex advice and counsel matters, in addition to general labor and employment practice.

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On April 1, 2020, the U.S. Department of Labor (“DOL”) issued regulations for the Families First Coronavirus Response Act (“FFCRA”), which went into effect the same day.  The regulations are available here.

The majority of the content in the regulations is not new and simply repeats information that is also available in the DOL’s FAQs guidance (which has been updated several times since it was first posted).  The DOL’s FAQs are here, and our blog post highlighting key takeaways from the FAQs as initially posted is here.

The latest information for employers from the regulations and the updated FAQs includes:

Clarification of small business exemption.

  • Employers with fewer than 50 employees may assert they are exempt from providing emergency paid medical leave (“EPML”) or emergency paid sick leave (“EPSL”) to employees who miss work due to a school or childcare closure. (Note that there are numerous qualifying reasons to use EPSL, including when an employee has been advised to self-quarantine or is showing symptoms consistent with COVID-19 and seeking a medical diagnosis.  However, there is no exemption that will allow small employers to avoid providing EPSL altogether.)
  • To deny an employee EPML or EPSL as outlined above, an “authorized officer” of the small employer must determine that:
    • providing such leave would cause the employer’s expenses and financial obligations to exceed available business revenue and cause the employer to cease operating at a minimal capacity;
    • the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of their specialized skills, knowledge of the business, or responsibilities; or
    • the employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services that the employee(s) requesting leave provide, and these labor or services are needed for the employer to operate at a minimal capacity.
  • Small employers are not required to formally “apply” for the exemption; rather, they must “document the facts and circumstances . . . justify[ing] [the] denial” of leave. The small business exemption does not require prior approval from the DOL, and neither the FFCRA nor the regulations create an express right for employees to challenge the employer’s determination that it qualifies.  Thus, it would appear that small employers have a great deal of discretion to determine whether they qualify for the exemption.
  • Small employers who assert the exemption must still post the FFCRA notice to employees.

Use of employer-provided paid time off during EPML.  After the first two workweeks of EPML, employers can require that employees take EPML concurrently with any employer-provided paid time off (such as vacation or personal leave) that would otherwise be available for employees to care for their children under the employer’s policies during their absence.  Employees can also elect to use employer-provided paid time off concurrently.  During the first two workweeks of EPML, employees may elect to use their employer-provided paid leave or EPSL, but the employer may not require them to do so.
Continue Reading Department of Labor Issues Regulations and Updates Guidance for Families First Coronavirus Response Act

Current Oregon law grants two important rights to manufacturing employees: (1) they are entitled to overtime pay if they work more than 10 hours in a single work day (and can never work more than 13 hours in a day); and (2) they may not work more than 55 hours in a workweek unless they provide their written consent to work up to a maximum of 60 hours.  In response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries (“BOLI”) has adopted a new emergency rule that allows manufacturing employers to seek a partial exemption from these requirements as described below.

Under BOLI’s new rule, employers engaged in manufacturing products that “reasonably result in the preservation of life and property” during the coronavirus pandemic may seek the exemption.  (BOLI has also issued a FAQ to help employers determine whether they are making such products, among other guidance.)

Here is what BOLI had to say about what kinds of manufactured product will support the exemption:

“Manufacturers that are part of the supply chain for food or medical equipment and have seen increased demand during the pandemic are great examples. For example, garment factories producing medical personal protective equipment (PPE), scrubs, or gowns may be included, whereas a regular clothing manufacturer may not.”
Continue Reading UPDATED: BOLI Issues New Rule Providing for Emergency Exemption from Manufacturing Hours Limits

In the wake of an onslaught of employee complaints about social distancing in the workplace, the Oregon Occupational Health and Safety Administration (“OR-OSHA”) announced that it would begin workplace inspections in order to enforce the social distancing requirements imposed by Governor Brown’s March 23 Executive Order.  Our blog post describing the Executive Order is here, a link to a media article about OR-OSHA’s announcement is here, and a link to OR-OSHA resources regarding workplace safety during the COVID 19 pandemic is here.

Here are some general guidelines to keep in mind if OR-OSHA conducts an inspection at your workplace:

  • OR-OSHA has the legal authority to inspect workplaces for compliance with safety standards, with or without notice. This includes the right to enter the workplace “during working hours or at other reasonable times, within reasonable limits, and in a reasonable manner.”  What is “reasonable” will depend on the circumstances, but in general it means that investigators may access your facility during regular business hours and may inspect portions of the facility as much as necessary to determine whether sound safety practices are being followed.
  • The OR-OSHA investigator will generally begin the inspection by holding a short conference with the employer’s representative. This is why it is important now to plan ahead and designate your representative(s), who may or may not be the same individual(s) who are enforcing social distancing compliance with Governor Brown’s Executive Order, and prepare them for how to cooperate with OR-OSHA.  During the conference the investigator will present his/her credentials and explain the purpose and scope of the visit, request any records he/she intends to review, determine whether any personal protective equipment is necessary while touring the facility, and inform the employer of OR-OSHA’s right to speak to employees and take photographs or conduct sampling.
  • The employer is entitled to have a representative accompany the investigator during the inspection. Inspectors have the right to question employees confidentially without management representatives present.
  • At the conclusion of the inspection, the investigator will conduct a closing conference to discuss his/her findings and advise the employer of any violations and safety hazards that have been identified. The investigator will also discuss OR-OSHA’s remediation and enforcement plan, including items like timelines for correcting any hazards, possible penalties, and the employer’s appeal rights.

Continue Reading OR-OSHA Announces Workplace Social Distancing Investigations

The Families First Coronavirus Response Act (“FFCRA”) requires private companies with fewer than 500 employees, along with most public employers regardless of size, to post a notice summarizing the benefits available under the new law and directs the Department of Labor to prepare and publish a model notice. The Department issued its model notice yesterday.…

The National Labor Relations Board (“NLRB”) announced yesterday that all currently scheduled representation elections – including vote-by-mail elections—have been postponed until at least April 3, 2020 because of the ongoing COVID-19 crisis.  Here is what the NLRB had to say:

Due to the extraordinary circumstances related to the COVID-19 pandemic, the National Labor Relations Board today approved the suspension of all representation elections, including mail ballot elections, for the next two weeks effective immediately, through and including April 3, 2020. 
Continue Reading NLRB Postpones All Representation Elections Until At Least April 3

Through a series of decisions issued in late 2019, the National Labor Relations Board (“NLRB” or “Board”) has signaled a return to common sense in its approach to the rules governing labor relations.  Here are a few of the Board’s decisions that are of interest to employers.

Employers May Require Employees to Maintain Confidentiality in…

Oregon’s Legislature just enacted the most significant legislation for Oregon employers in years.  The new Workplace Fairness Act has been hailed as a #MeToo law and seems intended to curb incidents of sexual harassment in the workplace, but its reach is significantly broader than that.

Key Changes and Takeaways

  • Employers are now required to have

…

It might appear that in some years, the National Labor Relations Board (the Board) issues a series of decisions just as the year comes to a close, but it is not because the Board wants to give out holiday presents (or, from the employer’s perspective for the past several years, multiple lumps of coal).  Rather…

Employers know that the salary rule for “white collar” exemptions from President Obama’s Department of Labor (“DOL”) was blocked by a federal court last year (we blogged about that here).  (UPDATE: A Texas federal court invalided the rule on August 31, 2017.)  That rule would have more than doubled the salary requirement for an overtime exemption.  Now, President Trump’s DOL has formally announced that it will not pursue that rule.  Instead, it is soliciting comments to draft its own rule.

Employers have an opportunity to weigh in on what, if any, changes should be made to the white collar exemptions.  The DOL’s request for information suggests it is seriously considering making at least some changes to the exemptions. 
Continue Reading Department of Labor Seeks Input on New Rules for White Collar Exemptions

The federal Occupational Safety and Health Administration (“OSHA”) announced late last week that it was rescinding its 2013 “Fairfax” memorandum, which allowed union representatives to participate in workplace safety walk-throughs.

Here is the background. Soon after the Occupational Health and Safety Act (“the Act”) passed in 1970, OSHA interpreted the law to allow employees to…