On Tuesday, March 9. 2021 Kegler Brown presented its annual Managing Labor + Employee Seminar. The virtual seminar focused on timely information regarding labor and employee relations, and allowed attendees to earn CLE and SHRM credit hours. Danielle Crane kicked things off walking through the implications on the labor and employment sectors and how to prepare for anticipated changes with Joe Biden taking office and his inauguration. Our litigation attorney, Jane Gleaves covered how courts have had to adjust to the pandemic, how lawyers are taking litigation virtual and the noticed trends in litigation in light of the COVID-19 pandemic. Brendan Feheley, the chair of our Labor + Employment practice closed the seminar by providing an update on the employment law issues surrounding the global pandemic and America’s response to it.

2. Presented by
Danielle Crane
The Next
Four Years
What a Biden
Administration Means
for Employers

4. COVID-19: Government
Relief + Response

5. Relief: Unemployment
Compensation
The current $300 federal supplement is
set to expire March 14
New administration proposed an
extra $400 per week
Proposed relief package would extend
the federal supplement through summer
Also extended unemployment benefits to
workers who refuse to return to a job
that is unsafe

6. Occupational
Safety + Health
Biden issued an executive order requiring
OSHA to update its COVID-19 guidance
New rules effective January 29th
Anticipating an immediate increase in
inspections + enforcement

7. Employers are also likely to
encounter the return of the
Obama administration’s
workplace-safety reporting
rule, which required
employers with over 250
employees to report illness
+ injury information to
OSHA annually, rather than
only upon request

8. Wage + Hour
UPDATES

9. “Raise the
Wage” Act

11. Impacts on Salaried
Employees
The salary basis threshold was increased
to $35,568 per year on January 1, 2020
Full-time hourly equivalent with
proposed minimum wage: $31,200/year
Possible staggered increase

12. Gig Workers
Biden’s DOL is making it harder for
companies like Uber to classify workers
as independent contractors
Delayed effective date of Trump’s final
rule on classifying workers
Removed Trump DOL’s interpretive letters

13. Paycheck Fairness Act
Factor other than sex
Bona fide objective factors

14. Retaliation against
employees who inquire
about wage practices
or disclose their own or
other’s wages
Screening applicants
based on their salary
history or requiring
salary history during
interview
Expanded remedies
The act
would also:

15. The Act also contains a
provision that would require
the EEOC to collect
compensation hiring,
termination, and promotion
data from employers broken
down by race, sex
+ national origin

16. Paid Family
Leave

17. Discrimination
LAWS

18. Equality Act
Would ban discrimination in
employment, housing, education, and
public accommodation on the basis of
sexual orientation and gender identity
Increased EEOC enforcement
Employee Handbooks

19. Age Discrimination
in Employment Act
But for causation in age discrimination
cases
Mixed motive theory of liability

20. Pregnant Workers
Fairness Act
Pregnancy treated as disability
Guarantees pregnant employees
reasonable accommodations

21. Biden has also
expressed support
for the following:
Stronger
protections
for older +
disabled
workers
National
harassment-
prevention
task force
Mandatory
non-
discrimination
training
Limits on use
of non-
disclosure
clauses

22. Employment-Related
AGREEMENTS

23. Arbitration

24. Class-Action
Waivers

25. Non-Competes

26. NLRB + Unions
Stronger worker organizing, collective
bargaining, and union rules anticipated
Support for the Protecting the Right to
Organize (PRO) Act, which would further
strengthen unions

27. Danielle Crane
Kegler Brown Hill + Ritter
dcrane@keglerbrown.com
keglerbrown.com/crane
614-462-5444

28. Presented by
Jane Gleaves
The Pandemic’s
Effect on
EMPLOYMENT
LITIGATION

29. Litigation by the Numbers
1
Challenges + Changes
2
Implications + Predictions
3

30. Litigation by the Numbers
1

32. What Qualifies as “Employment Litigation”?
Those cases alleging a federal law violation – discrimination,
harassment, retaliation, wage and hour claims FLSA, interference
and retaliation under FMLA

33. This doesn’t include
labor laws or state
court filings

35. 12% decrease in federal employment cases from 2019,
but 16% decrease compared to the average number
of filings from 2010-2019
Significant decreases in harassment (-22%), Americans
with Disabilities Act (-20%) and discrimination (-17%)
from 2019, perhaps due to lack of workplace contact,
mass layoffs, shifts to remote work

36. What is happening
with these cases?
Approximately 2,000 fewer cases were closed
in 2020 than 2019, reflecting the dramatic
slowdown in court activity during the pandemic

38. When will I get
a trial?
2020 – 859 days
2019 – 721 days

39. Reasons for Decreases in
LITIGATION
Employee Lay-Offs, Not Working
Fear of Losing Job During Pandemic
Remote Work Environment
Courts Closed for Many Weeks/Months

40. COVID-19 Case Trends
in Federal Court

41. Cases caused by COVID-19
would not have been filed
if not for COVID or facts
exacerbated by COVID
Not reflected – WARN cases, CARES Act leave,
traditional labor law grievances

43. 309 employment cases attributable directly to the
COVID-19 pandemic filed in federal court
The 309 cases include 228 claims of retaliation, 142
claims of Family and Medical Leave Act violations, and
129 claims of Fair Labor Standards Act violations

44. Who are these
cases being filed
against?

45. Healthcare Manufacturing Transportation Hospitality

46. 36 of the 309 COVID-19 cases already have settled,
most of which were filed against hospitality
businesses, warehouse companies, and retirement
homes

48. Where are cases
being filed?

50. The majority of federal COVID-19 employment cases
were filed in Florida, New York, Texas, Michigan,
Pennsylvania, and Ohio
WHY? States that were hit hard and early by COVID

51. They involve claims of disability leave and
accommodation, discrimination/harassment,
retaliation/whistleblower, and wage and hour claims

52. Even though case filings are down,
keep in mind that there are hundreds
of cases that have been filed before
COVID was even on our radar and
that are pending – we have to deal
with those

53. Challenges + Changes
2

54. Looming trials are a
driving force keeping
litigation moving

55. But jury trials
are suspended
across the state

56. Franklin County – through April 4
Cuyahoga County – through April 26
Hamilton County – through March 8
Southern District – indefinitely suspended

57. The
Courtroom

60. Many Aspects of Litigation
Have Gone Virtual
Temporary restraining order hearings
Evidentiary hearings
Appellate arguments

61. Depositions
+ Discovery

62. Concerns
Hard to know who is in the room
Hard to exchange exhibits
Potential to take away “surprise” factor
Fear of technical difficulties

63. Benefits
Cut down travel costs
Can work in exhibits seamlessly with
screenshare capabilities
Can ask a witness to pan around a room
or ask on record if anyone in the room
Ability to depose people all over the world

64. Parties are also taking
depositions in person,
but the witness is
wearing a mask – it
really depends on
what you need to get
from a witness

65. Paper Discovery

66. Mediations

67. Also via Zoom
Breakout rooms are available
Reduces costs greatly

68. Implications + Predictions
3

69. Incentives of
Defendants
Get litigation over without incurring too
much cost
Avoid negative publicity
Absolve themselves of wrongdoing

70. Incentives of
Plaintiffs
Compensation for their injuries +
damages
Prove that they were wronged
Get paid quickly

71. Implications of
COVID-19 on Incentives

72. Mediations
Power of mediation is pressure on
both sides
Can be a huge reality check for a plaintiff
in an employment case
Sometimes, it’s the person’s first time in a
courthouse
Forces the party to evaluate its case for a
whole day

75. Can we settle this?

76. Potential
Future
CLAIMS
More WARN cases if more layoffs
Age, disability, gender discrimination claims
Age discrimination – older workers
State whistleblower litigation
ADA accommodation
Companies requiring vaccines
Novel claims

77. New filings are
down but not
for long
Litigation is
going forward
Be aware of
incentives to
drag out or
quickly close
litigation
TAKEAWAYS
from this Presentation
Be on the
lookout for
COVID-related
lawsuits

78. Jane Gleaves
Kegler Brown Hill + Ritter
jgleaves@keglerbrown.com
keglerbrown.com/gleaves
614-462-5484

80. COVID-19
Where Are We,
What’s Still to Come
Presented by
Brendan Feheley

81. Ohio Cases
Ohio averaging around
2,000 new cases per day
Hospitalization + ICU admission
numbers dropping well below end
of 2020 numbers
Older people getting vaccinated,
earlier access to therapeutics

82. Ohio Cases
End of February – Franklin, Marion,
Cuyahoga counties 30-45/100
Virus is not dead, but we’re looking
better than we were
Highest numbers remain in rural
counties

83. Ohio Rules in Effect

84. Ohio Travel Advisory
Any state with over 15% positivity
advised to self quarantine for 14 days
As of March 1 that includes Idaho,
South Dakota, Iowa, Alaska + Kansas

85. Ohio Gathering
Limitation
November 15 order still in effect
No gathering of 10 or more people
(with exceptions)
Specific rules for wedding receptions,
funeral repasts, proms, and other
events

86. Duration of
Quarantine
Recommended
Actions
Optimal Duration to
Minimize Risk
14 days
*Especially if visiting assisted
living, or working in high
density workplaces or places
where possible contact with
vulnerable individuals
Social Distance
Self Monitor for 14 days
Self Isolate if symptoms
develop.
Reduced Duration 1 10 days after last exposure Social Distance
Self Monitor for 14 days
Get tested (Day 8 or later)
Reduced Duration 2 7 days
Assuming negative test
Day 5 or later
Social Distance
Self Monitor for 14 days
Self Isolate if symptoms
develop

87. What’s an
Employer to Do?

88. No quarantine letter = no legal obligation
to remain away from work
FDA approves at-home COVID-19 test –
documentation of positive test?
Example: Employee goes out drinking with a
friend, 4 days later friend has symptoms, day
5 tests positive and tells your employee
Do you find out? Now what?

90. Legal
OBLIGATIONS

91. Governor
Signs HB606
Provides protection for
business from suits
alleging harm caused by
COVID-19

92. What to do when employees/customers
claim they can’t wear face masks or are
vaccinated
E-Paid Sick Leave
E-FMLA

93. OSHA

94. President Biden’s
Executive Order

95. Separating + sending home
infected or potentially infected
people from the workplace
Implementing physical distancing +
installing barriers where physical
distancing cannot be maintained
Requiring the use of face coverings
Improving ventilation
Using PPE where necessary
Providing supplies for good hygiene
practices
Performing routine cleaning +
disinfection

96. Coronavirus
Prevention Program
Likely issued no later than March 15
Will require employers to have program

97. Notable Compliance
Aspects of the Program
Assignment of a workplace coordinator
Identification of where and how workers
might be exposed to COVID at work and
measures that will limit the spread
Protections for workers at higher risk
Providing guidance on screening + testing

98. Notable Compliance
Aspects of the Program
Establishment of an effective
communication system + training on
COVID policies + procedures in a
language workers understand
Implementing protections from
retaliation and setting up an anonymous
process for workers to voice concerns
about COVID-related hazards
Making a vaccination series available at no
cost to all eligible employees

99. COVID-19
VACCINE

100. Biden claims will have enough vaccine for all
Americans by end of May – will take time
Moderna vaccine highly effective according
to FDA; J&J approved, Oxford in progress
Can you require employees to take the
vaccine? All of them? Should you?

101. 47% of Ohio’s population aged 65-69 has started
vaccination
47%
16% of Ohio’s total population has started vaccination
16%
But only 7.6% of Black Ohioans have started vaccination
8%

102. Federal
STIMULUS

103. Brendan Feheley
Kegler Brown Hill + Ritter
bfeheley@keglerbrown.com
keglerbrown.com/brendanfeheley
614-462-5482