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WEEKEND READ | Avoiding Legal Issues When Bringing Back Furloughed Employees

Oct. 18, 2020, 9:55 PM

More and more companies are starting to bring workers back into the office. We highlighted several issues employers face with regard to returning furloughed employees, with an Insight by Epstein Becker Green employment attorney Genevieve Murphy-Bradacs.

And with the ongoing national conversation on diversity, Morgan, Lewis & Bockius LLP partner Russell M. Franklin highlighted what clients can do to further the career advancement of diverse law firm partners.

Our Insights also looked at the continuing controversy involving the politicization of the Justice Department, how Covid-19 liability waivers contribute to the spread of the virus, and steps public companies can take to enhance diversity in the boardroom.

If you have an idea for an Insight, let us know at, and check out our guidelines.

Navigating Return to Work Issues

Employers need to understand the potential legal liabilities they face as they return furloughed employees to work—whether on the work premises or on a remote basis, according to Epstein Becker Green’s Genevieve Murphy-Bradacs. Providing clear and timely communication of the return date and the furlough’s impact on benefits are just two of many key issues.

Read: Discrimination, Benefit Issues to Watch When Returning Furloughed Workers

  • Benefit Issues: If benefits continued during the furlough, potential employee “catch-up” payments are needed if the employer paid employee premiums during this period.
  • Mitigate Discrimination Risk: Employers must ensure they have a legitimate, non-discriminatory reason for selecting which employees return to active employment to avoid a class or collective action.

About the Author: Genevieve Murphy-Bradacs is senior counsel at Epstein Becker Green.

Photo by Chris Ratcliffe/Bloomberg

Advancing the Careers of Diverse Law Partners

In the recent past, more of corporate America has been focused on ensuring that diverse law firm partners are provided with opportunities to, and are recognized for, providing outstanding client service. Russell M. Franklin, partner at Morgan, Lewis & Bockius LLP, provides guidance on how clients might advance this goal.

Read: Five Things Clients Can Do to Support the Careers of Diverse Law Partners

  • Communicate: If you are steering work to a diverse partner because you want to support them, be sure that firm leadership knows you are doing so.
  • Powerful Question: Periodically ask if there is anything else you can do.

About the Author: Russell M. Franklin is a partner at Morgan, Lewis & Bockius LLP.

Standing Up for DOJ Professionals

Former Department of Justice trial attorney Joshua P. Bogin explains why he was one of more than 800 signatories on an open letter supporting DOJ attorneys who stand up to partisan actions by Attorney General William Barr. The letter is aimed at helping preserve public trust that DOJ professionals are not simply pawns of whatever administration occupies the White House.

Read: Why Are DOJ Alums, Bar Leaders Speaking Out for Conscience Now?

  • Seeking Justice: DOJ lawyers toil not only to prevail in their cases, but to represent the American people in serving fair and impartial application of law.
  • Overreach: It is clear that Barr has not simply crossed a line but has trampled it.

About the Author: Joshua P. Bogin teaches constitutional law and civil liberties at Springfield College.

Attorney General William Barr arrives to the Rose Garden of the White House in Washington, D.C., on June 16, 2020.
Photographer: Stefani Reynolds/CNP/Bloomberg via Getty Images


Instead of Liability Waivers, Reduce the Spread of Covid-19
Covid-19 liability waivers may be useful to the businesses they protect, but they are terrible for society at large, according to Jeff Sovern, professor at St. John’s University School of Law. He says Congress should enact legislation prohibiting liability waivers and businesses should focus on being more careful and protecting the public from Covid-19.

Steps for Corporate Boards Serious about Improving Diversity in the Boardroom
Boardroom diversity continues to be a struggle for most public companies, but it’s not for a lack of trying. Two attorneys in Sidley Austin LLP’s public company practice offer corrective steps and say problems usually stem from how boards identify what they want in new directors and how they evaluate potential candidates.

Tips for Maximizing Your Virtual Mediation Experience
Attorneys involved in virtual mediation need to carefully plan their online video calls for even mundane things like deciding who will be on camera, how to virtually break for lunch, and how to know when a mediator “enters a room,” say attorneys from Nutter‘s litigation department.

A Proposed Presidential Disability Commission Under the 25th Amendment
In the aftermath of President Trump’s recent hospitalization, a bill that would create a commission to examine presidential fitness under the 25th Amendment was proposed in the U.S. House. Michigan State University law professor Brian C. Kalt explains how the proposal would work and how it could increase the incentive for a U.S. president to conceal any impairments.

Guidance for Complying With California’s New Board Diversity Mandate
The immediate challenge for California-based public companies to comply with the state’s mandate on corporate board diversity is the lack of regulatory guidance. Mintz‘s Jen Rubin says boards need to expand their recruitment networks, have strict recordkeeping and reporting procedures, and offers other tips to ensure compliance.

Second Circuit Sets Precedent in 50 Cent Right of Publicity Case
The Second Circuit recently gave courts in its jurisdiction a blueprint for deciding cases involving right of publicity claims based on the use of copyrighted music. Jonathan Goins, partner at Lewis Brisbois Bisgaard & Smith LLP, says the case involving rappers 50 Cent and Rick Ross furthers a circuit split and the court’s language suggests that performers’ approval could be required for licensing that occurs following the expiration of their contracts.

Employers Can Avoid Arbitration Issue Raised in Amazon Case
The Ninth Circuit recently refused to enforce arbitration agreements for Amazon drivers. Robyn E. Frick, senior counsel at CDF Labor Law LLP, says employers can take steps to make such agreements enforceable.

Trump Administration Sued Over International Criminal Court Sanctions
Former South Africa Ambassador Patrick Gaspard, president of Open Society Foundations, examines the first lawsuit filed against the U.S. government over the Trump administration’s executive order authorizing travel and economic sanctions on persons working with the International Criminal Court.

Georgia Business Court Now an Alternative During the Pandemic
Georgia businesses now have the option of bringing their disputes in the state’s new Georgia State-Wide Business Court. Attorneys from Parker Poe in Atlanta offer some pointers and say the new court offers a timely alternative while other state courts face backlogs.

Citizen Suits Lead the Way for Agencies on Plastics Enforcement
Beveridge & Diamond P.C. attorneys look at trends with recent citizen suits involving plastics by environmental non-governmental organizations. These lawsuits have consequences beyond the immediate defendant and outcome in each case and they say the best way to avoid enforcement by citizens or regulators is to assess current and future plastics management in light of evolving regulatory and permit interpretations, and be prepared with a plan for compliance, regulatory communications and community engagement where warranted.

California Strengthens Mental Health Parity Law
California just passed a law expanding parity requirements for mental health coverage. Hooper, Lundy & Bookman P.C. attorneys look at what will be required of disability insurers and health plans as of Jan. 1, 2021, and predict an uptick in related litigation and regulatory enforcement.

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