Is the Arbitration Provision in Your Employment Contract Enforceable?

David R. Bohm

By David R. Bohm



arbitrationMany employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer.  However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.

In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration.  The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations.  Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee.  As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »

Access to Patient Medical Records During COVID-19

Laura Gerdes Long

By Laura Gerdes Long



Issues relating to a patient’s right of access to medical records have never been more important than now, in the midst of the COVID-19 pandemic.  Healthcare providers, big and small (from a large New York City non-profit providing health care and other services to the homeless population to small psychiatric services providers in Virginia and Colorado), are facing monetary penalties and having to comply with Corrective Action Plans (CAP) imposed by the Office for Civil Rights (OCR) with strict requirements and short deadlines.

One of these psychiatry services providers must distribute new policies and procedures concerning patient requests for records to all members of its workforce and relevant business associates within 30 days and to new employees upon hiring. Recipients are required to execute certification of having read, understood, and promised to abide by these policies and procedures. Training and individual certifications must be completed within 60 days. Going forward, the practice must implement annual training. Any reportable events must be fully investigated and described in a report as part of the full-scale written “Implementation Report.” The practice must submit the report to the U.S. Department of Health and Human Services (HHS) within 120 days. The CAP concludes with a “Final Report,” again containing specific terms and obligations of the psychiatry practice. Continue reading »

Department of Labor’s Updated Regulations for FFCRA

Lauren L. Wood

By Lauren L. Wood



The Department of Labor (DOL) published new guidelines on September 16, 2020 that revise and clarify portions of the Families First Coronavirus Relief Act (FFCRA). The new guidelines were issued following a ruling by a New York District Court that declared certain previously issued regulations invalid. These updated regulations relate to the following:

  • The requirement of “work availability,”
  • The requirement of employer approval for FFCRA leave to be intermittent,
  • The definition of “health care provider,” and
  • Requirements for notice and documentation.

The new regulations went into effect at the time they were published and will remain in effect until December 31, 2020 when the FFCRA is set to expire.

Work Availability Requirement

The DOL clarified that the work availability requirement applies to all qualifying reasons to take leave under the FFCRA. Thus, the leave may only be taken if the employer has work for the employee. The qualifying reason must be the actual reason the employee is unable to work, rather than not having work to do regardless of whether the qualifying reason occurs. Previously, the work availability requirement was only explicitly applicable to three of the six possible qualifying reasons for leave.

Intermittent Leave Requires Employer Approval Continue reading »

A Closer Look at Title VII and Sexual Orientation and Gender Identity

Katherine M. Flett

By Katherine M. Flett



Authored by Katherine M. Flett with assistance from Connor P. Lynch

The Supreme Court, in a 6-3 decision, ruled that Title VII of the Civil Right Act, which prohibits employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.

Background

In recent years, federal circuit courts have come to conflicting conclusions when addressing whether Title VII of the Civil Rights Act, prohibiting employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.  In an attempt to resolve the inconsistent holdings across federal appellate courts, the Supreme Court agreed  to hear three cases that dealt with this issue: Altitude Express,  Inc. v. Zarda; Bostock v. Clayton County; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. All three cases involved an employer allegedly firing a long-time employee simply for being homosexual or transgender. Continue reading »

Missouri Employers and Medical Marijuana: What You Need to Know – On-Demand Webinar

Katherine M. Flett

By Katherine M. Flett



co-presented by Katherine M. Flett and Ruth Binger

Ruth Binger and Katherine Flett presented a webinar on what Missouri employers need to know about medical marijuana in the workplace.

Missouri Employers and Medical Marijuana – What You Need to Know,” a Facebook Live webinar, was part of the Greater St. Charles County Chamber of Commerce‘s Chamber University.

Topics included: Continue reading »

Keeping Your Business in Business During COVID-19: On-Demand Webinar

Katherine M. Flett

By Katherine M. Flett



co-presented by Katherine M. Flett and Ruth Binger

Ruth Binger and Katherine Flett presented a webinar on keeping your business in business, which included employment and business strategies during the pandemic.

Maintaining a Legally Compliant Work Environment and Navigating the ‘New’ Workplace in the Face of COVID-19,” a Facebook Live webinar, was part of the Greater St. Charles County Chamber of Commerce‘s Chamber University.

Topics included: Continue reading »

Getting Back to Work: OSHA Guidance for Non-Essential Businesses

Ruth Binger

By Ruth Binger



OSHA has released new guidelines for reopening to help non-essential businesses ensure the safety and health of their employees and customers from the spread of COVID-19.

This new guidance supplements Guidance on Preparing Workplaces for COVID-19 from the U.S. Department of Labor and U.S. Department of Health and Human Services and Guidelines for Opening up America Again from the White House.

Under the new OSHA guidelines, businesses should establish reopening policies and procedures in the following areas: Continue reading »

President Trump Signs Paycheck Protection Program Flexibility Act

Marcia Swihart Orgill

By Marcia Swihart Orgill



The Paycheck Protection Program Flexibility Act (Flexibility Act) makes key changes to the Paycheck Protection Program (PPP) that provide borrowers with more flexibility to obtain loan forgiveness, including extending the time period to spend PPP loan proceeds, reducing the payroll expenditure requirement for PPP loans, and extending the time period to restore employment and wage levels. The following is a summary of the modifications the Flexibility Act makes to the PPP.

1. Extension of Time to Spend Loan Proceeds. The Flexibility Act extends the covered period that a borrower must spend its loan funds from eight weeks after the loan origination date to 24 weeks or until December 31, 2020, whichever is earlier. The Flexibility Act allows borrowers that already received a PPP loan prior to enactment of the Flexibility Act to elect an eight week covered period, which may be beneficial for borrowers who have already spent most of their PPP loan proceeds and are near the end of their original eight week covered period.

2. Payroll Expenditure Requirement. The Flexibility Act reduces the payroll expenditure requirement from 75% to 60%. The remaining 40% of loan funds may still only be used for payments of interest on any covered mortgage obligation, rent and utilities.

In an Interim Final Rule issued on April 3, the SBA established the requirement that at least 75% of the PPP loan proceeds be used for payroll costs. If less than 75% of the of loan funds are spent on payroll costs, the SBA Loan Forgiveness Application requires a borrower to reduce the amount eligible for loan forgiveness. In changing the payroll expenditure requirement to 60%, the Flexibility Act added the following language to the CARES Act: “To receive loan forgiveness”, a borrower “shall use at least 60% of the covered loan amount for payroll costs.” Based on this language it is not clear whether a borrower will still be able to obtain partial loan forgiveness if the 60% threshold is not obtained. Continue reading »

Legal Guidance for Employers on Navigating New Wellness/Health Policies – On Demand Webinar

Ruth Binger

By Ruth Binger



A recent survey of Missouri manufacturers by Missouri Enterprise found that understanding wellness and health guidelines due to Covid-19 is a top challenge for moving forward.

In “Legal Guidance to Help Employers Navigate New Wellness/Health Policies,” a webinar from Missouri Enterprise, I discuss major obstacles and gray areas related to protecting employees in the new normal of Covid-19.

Watch the webinar to learn how to navigate the new health order while protecting employees on the job. Questions include:

  • Can employers require employees to get flu or Covid-19 vaccinations?
  • What questions can an employer legally ask when an employee calls in sick?
  • What can an employer do if an employee doesn’t want to return to work because they are afraid of getting sick?
  • Can an employer require high-risk employees (due to age or health) to stay home?
  • What information can an employer share with other employees if an employee is being tested for the virus?
  • Can a company require an employee to leave work if they seem ill?
  • Can an employer be held liable if an employee contacts the virus at the workplace?
  • If the virus spread through the workplace, is it considered a workers’ comp injury?

Click below to watch the webinar: Continue reading »

Employers Must Report Work-related COVID-19 Cases to OSHA

Ruth Binger

By Ruth Binger



Under new guidelines from OSHA, employers must record all work-related COVID-19 cases that meet the following three conditions:

  1. The case is confirmed as COVID-19 as defined by the CDC.
  2. The case is determined to be work-related.
  3. The case results in any of the following:
    1. Death
    2. Significant injury or illness diagnosed by a medical professional
    3. Days away from work
    4. Restricted work or transfer to another job
    5. Medical treatment beyond first aid
    6. Loss of consciousness.

In addition, per the new guidelines: Continue reading »