As the COVID-19 global pandemic has disrupted life, the business world faces a stark new reality. Executives have been forced to make difficult decisions about layoffs and furloughs, investor disclosures, and cybersecurity threats as employees work from home. At the same time, these executives must understand new government programs in the United States and abroad that have been enacted to support businesses, but that raise a host of questions. And many must assess how they will deal with future M&A activity, including unsolicited offers and activist investors drawn to depressed stock prices.
To help our clients better understand this new business and legal landscape, our lawyers have prepared an ongoing series of S&C Memos, Podcasts and Webinars that outline and explain important issues in the fields of Corporate, M&A, Financial Services and Labor and Employment. While the law and regulations continue to evolve, we will keep you updated on the latest developments. Partner Contacts: Nicolas Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner
RECENT CLIENT GUIDANCE
U.S. Department of Labor Launches the Essential Workers, Essential Protections Initiative During the COVID-19 PandemicMay 6, 2021 – On April 26, 2021, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act and the Family and Medical Leave Act.
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U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA LeaveMay 6, 2021 Update – On April 26, 2021, the U.S. Department of Labor (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).
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New York Imposes Employer Obligations to Provide Leave for COVID-19 VaccinationsApril 5, 2021 Update – The New York State Department of Labor issued guidance in the form of Frequently Asked Questions on New York’s COVID-19 Vaccine Leave Law to clarify certain aspects of the law. This new guidance has been incorporated into this updated post.
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OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 CasesFebruary 8, 2021 Update – On or around February 8, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide guidance on when employers are required to post OSHA Form 300-A (Summary of Work-Related Injuries and Illnesses) in the workplace. This additional guidance has been incorporated into this updated post.
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OSHA Issues Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
February 3, 2021 Update – On January 29, 2021, the Occupational Safety and Health Administration (“OSHA”) issued guidance to employers and workers in most workplace settings (excluding healthcare) to help them (1) identify risks of being exposed to and/or contracting COVID-19 at work, and (2) determine appropriate control measures to implement (the “Guidance”). The Guidance, titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” has been issued for “planning purposes” and “is not a standard or regulation, and it creates no new legal obligations.” The Guidance contains recommendations and descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, and are intended to assist employers in providing and abating hazards (potentially including workers that may have COVID-19) likely to cause death or serious physical harm as part of their obligation to provide a safe and healthy workplace.
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OSHA Issues General Guidance on Returning to WorkFebruary 3, 2021 Update – On February 1, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published advisory Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. Our blog post on this new guidance is available here.
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New York Imposes Employer Obligations to Provide Leave Related to Quarantines During COVID-19 Pandemic
February 2, 2021 Update – On January 20, 2021, the New York State Department of Labor issued supplemental guidance on the application of New York’s COVID-19 leave law (the “Act”). This guidance addresses situations in which employees may be eligible for additional sick leave under the Act, and has been incorporated into this updated post.
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COVID-19 “Phase IV” Stimulus
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COVID-19 Phase IV Stimulus Package—Key Employer Takeaways
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COVID-19 Vaccine Policies—What Employers Should Know
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California’s OSHA Adopts Temporary, Emergency COVID-19 Regulations
Updated December 17, 2020 – On December 14, 2020, Governor Newsom issued an executive order that suspends the employee exclusion period under the Cal/OSHA emergency COVID-19 regulations if they exceed guidelines from the California Department of Public Health or local health officers. The updated memorandum summarizes the important aspects of the executive order.
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| S&C Critical Insights – Annual Overview of Activism Trends December 8, 2020 – In this episode of S&C’s Critical Insights podcast series, Melissa Sawyer, co-head of S&C’s Corporate Governance & Activism Practice, and associate Lauren Boehmke provide an overview of U.S. activism trends they expect to persist into 2021. They cover the impact of the COVID-19 pandemic on activism campaigns in the spring of 2020 and look forward to how companies might get back to “business as usual” in the new year. They also discuss the convergence of strategy between activist investors and private equity funds, who are increasingly willing to borrow from each other’s playbooks. Finally, they explore how activists might look to capitalize on the ESP trend that has dominated corporate governance discourse among institutional investors. Listen to Our Podcast |
Delaware Court Issues Important COVID-Related M&A Opinion
Being the first word from the Court of Chancery on these M&A COVID-related issues, this decision provides some useful guidance on the interpretation of MAE and ordinary course covenants that are ubiquitous in transaction agreements.
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Frank Aquila Talks to Reuters About Dealmaking in the PandemicNovember 24, 2020 – Frank Aquila, global head of Sullivan & Cromwell's M&A practice, spoke to Reuters for a Q&A about the effects of the COVID-19 pandemic on M&A, how it's different from the global financial crisis, and whether virtual dealmaking is here to stay.
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California Takes Action to Curb COVID-19 Transmission November 19, 2020 – On On November 16, 2020, amidst an increase in COVID-19 cases in California and nationwide, California Governor Gavin Newsom announced new immediate actions to curb COVID-19 transmission, including pulling an “emergency brake” in California’s Blueprint for a Safer Economy Framework (the “Blueprint Framework”) and strengthening the state’s face covering guidance. These actions will remain in effect “until the State Public Health Officer determines it is appropriate to make modifications based on public health conditions and data.”
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ISS Releases FAQ on U.S. Compensation Policies and the COVID-19 PandemicOctober 21, 2020 – On October 15, 2020, Institutional Shareholder Services (ISS) released general, preliminary guidance as to how ISS U.S. Benchmark Research may approach pay decisions related to the COVID-19 pandemic in the context of ISS’ pay-for-performance qualitative evaluation. Consistent with existing ISS policy, an elevated concern in ISS’ quantitative screen will result in this more in-depth qualitative review. The guidance was shaped by feedback from discussions with investors at roundtables and ISS’ annual policy survey. ISS indicated that this FAQ provides preliminary guidance ahead of ISS’ regular annual FAQ update in December.
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| M&A: Dealing with Uncertainty October 19, 2020 – M&A partner Melissa Sawyer, co-head of the Firm’s Corporate Governance & Activism practice, participated in a discussion at the Milken Institute Global Conference on “M&A: Dealing with Uncertainty.” The panel examined whether M&A activity will remain subdued through the rest of the COVID-19 pandemic; whether previously prohibitive deals may become viable as industries and business models adapt to the new climate; and what factors might incite dealmakers to seize opportunities in a disrupted economy. Watch Our Webinar |
| Lessons From the 2020 Proxy Season: Human Capital Proposals October 13, 2020 – Marc Treviño, co-head of the Firm’s corporate governance practice and managing partner of its executive compensation group, discusses how the COVID-19 pandemic and other recent events may increase the prevalence of human capital proposals submitted by shareholders following the 2020 proxy season. Marc explores why more companies are likely to adopt or expand public disclosure on human capital management next year in response to growing pressure from investors and regulators. He also outlines changes to expect for specific categories of human capital proposals, including those related to diversity, arbitration and social capital. Watch Our Webinar |
| Lessons From the 2020 Proxy Season: Virtual Shareholder Meetings October 5, 2020 – Melissa Sawyer, M&A partner and co-head of the Firm’s Corporate Governance & Activism Practice, discusses the impact of the COVID-19 pandemic on shareholder meetings for U.S. issuers during the 2020 proxy season, when meetings were largely virtual for the first time. Melissa provides an overview of how companies and stakeholders have reacted to the shift. She also looks ahead to how the evolving expectations of investors might affect the format of meetings in 2021. Watch Our Webinar |
Updated: OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 CasesOctober 2, 2020 Update. On September 30, 2020, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide additional guidance on when employers should report work-related COVID-19 fatalities or in-patient hospitalizations to OSHA. This additional guidance has been incorporated into this updated post.
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September 23, 2020 Update: California Mandates COVID-19 Supplemental Paid Sick Leave Through the End of 2020 For Employers with 500 or More Employees In the United StatesSeptember 23, 2020 Update. The California Labor Commissioner’s Office published responses to frequently asked questions regarding the COVID-19 supplemental paid sick leave available to California workers at companies with 500 or more employees nationwide. The below post has been updated to reflect this guidance.
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California Expands COVID-19 Worker ProtectionsSeptember 23, 2020 – On September 17, 2020, California Governor Gavin Newsom signed two new bills as part of his worker protection package. The first, SB 1159, expands the presumption of workers’ compensation liability for COVID-19 claims. The second, AB 685, ensures timely notification to employees and local and state public health officials of COVID-19 cases at workplaces. These bills are covered in more detail below.
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| Marc Treviño, Melissa Sawyer and June Hu Present Webinar on Lessons From the 2020 Proxy Season September 23, 2020 – S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu hosted a webinar to further explain the lessons from the 2020 proxy season and what to expect going forward. They examined topics including Rule 14a-8 shareholder proposals, say-on-pay votes and equity compensation, and what to expect in 2021. Watch Our Webinar |