In these circumstances – involving a collective bargaining agreement (CBA) that provides no employer flexibility on issues such as scheduling and assigning work – an institution needs to consult counsel with experience in wage-hour laws to consider its options. Making unilateral changes to or ignoring the provisions of a CBA, even in an emergency situation, could result in unfair labor practice charges.
Your institution should review current faculty and employee handbooks, collective bargaining agreements applicable to unionized employees, and any individual employment contracts your institution has (such as with administrators or coaches). UE suggests performing these reviews in consultation with legal counsel.
Because multiple federal and state laws may apply, UE strongly recommends consulting with counsel about which laws impact your institution.
On March 18, 2020, the Families First Coronavirus Response Act (FFCRA) became law. Among other things, it requires smaller employers – those with fewer than 500 employees ─ to provide emergency paid sick leave to employees who can’t work (including telework) and emergency paid Family and Medical Leave Act (FMLA) benefits. Those provisions became effective April 2, 2020, and expire Dec. 31, 2020. Some states passed their own laws. During the pandemic, both federal and state legislative changes may be rapid and seeking legal advice is essential. For more information on the FFCRA, review the Department of Labor’s FFCRA Fact Sheet and FFCRA Questions and Answers.
In addition, institutions still need to comply with a host of other federal and state laws ─ regardless of the emergency caused by COVID-19 – and should consult counsel about continuing to meet these obligations. Applicable laws may include (but are not limited to):
- Title VII of the Civil Rights Act, and equivalent state laws
- The Age Discrimination in Employment Act (ADEA), and equivalent state laws
- FMLA, and equivalent state laws
- The Fair Labor Standards Act (FLSA), and equivalent state laws
- The Americans With Disabilities Act (ADA), and equivalent state laws
- Section 504 of the Rehabilitation Act
- The Occupational Safety and Health (OSH) Act, and equivalent state laws
- The Worker Adjustment and Retraining Notification (WARN) Act, and equivalent state laws
- The National Labor Relations Act (NLRA), for unionized faculty or staff
- FERPA
- The Employee Income Retirement and Security Act (ERISA)
- Health Insurance Portability and Accountability Act (HIPAA)
- The Genetic Information Nondiscrimination Act (GINA)
- The Equal Pay Act (EPA)
- The Uniformed Services Employment and Reemployment Rights Act (USERRA)
Whether to conduct layoffs or furloughs is a business decision for the institution, but UE strongly recommends consulting an attorney with appropriate expertise before making that decision ─ and continuing to seek legal advice during any layoff process. State laws may come into play. For example, some states require accrued vacation time to be paid when employment is terminated (but usually not if employees are furloughed, since they may be called back to work). In addition, be careful to follow any internal policy and procedure your institution has adopted governing layoffs, including how employees are selected for layoff. This is especially important if you need to lay off tenured faculty, who usually have specific rights through a faculty handbook or individual contracts.
Regarding pay, institutions should examine all handbooks, employment agreements, and collective bargaining agreements to determine any contractual obligations they might have to pay employees who are not working. In addition, check your institution’s written policies on paid time off/paid sick leave, accrued vacation time, and the like, to determine employees’ entitlement to pay if they are temporarily unable to work.
Otherwise, under the Fair Labor Standards Act (FLSA), employers are allowed to pay “nonexempt” employees – those entitled to overtime pay ─ only for the hours they actually work. “Exempt” employees usually receive salaries and are entitled to their full base salary for a designated work period in which they perform any work. In addition, states have their own versions of the FLSA and because these may have different rules, it’s important to consult an attorney licensed in your institution’s state – again, the attorney should have experience in wage-hour laws.