Keeping up with the deluge of COVID-19 laws, regulations, interpretive guidelines, and the like is quite a challenge for employers. You need to react to constantly changing circumstances and do so in a way that gives your company the best possible chance to succeed.

We have created a Coronavirus Resource page to help. We’ve not only created it, but we’re updating it constantly and you can subscribe to updates.

What can you find there? I’m so glad you asked! We have:

  • An explanation and FAQs on the Family First Coronavirus Response Act (FFCRA).
  • A guide for employers on the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act).
  • A chart comparing SBA loan options for small businesses.
  • Steps to take if an employee tests positive for or is suspected of having COVID-19.
  • Strategies for dealing with unionized workers during the pandemic.
  • A link to the new federally required posting.
  • Plenty of industry-specific guidance and discussions of laws unrelated to the employment relationship.

This is a free resource that we’ve made available to help businesses weather these fast-changing and challenging times. Good luck and stay safe.

The Los Angeles City Council passed an Ordinance on Friday that fills some key gaps left open by the FFRCA (Families First Coronavirus Response Act).   If you don’t know about the FFCRA  yet, please visit our Coronavirus Resources page to read all about it.

This Supplemental Sick Leave Ordinance (“LA Supp Sick Ord”) provides 80 hours of paid sick leave, in addition to the 48 hours already provided to employees of larger businesses within the City of Los Angeles, to use for pretty much any type of Covid 19 related purpose.

Here are some further details:

  • Applies only to employees of businesses with over 500 employees.  The FFCRA applies only to businesses less than 500.
  • Applies to employees who worked for the same employer from February 3, 2020 to March 4, 2020 (but not to those hired after March 4th).
  • The date range means it applies to furloughed employees. (i.e., employees with no work hours scheduled due to lack of business or closure, but who have not been formally laid off or terminated).  Put another way, the employment relationship has paused, not ended.  In contrast, the DOL has now opined that the FFCRA does not apply to employees on furlough (see FAQ #23).
  • Some health care providers and first responders are excluded, as may be union employees and employees covered by other Ordinances, such as the LA Hotel Ordinance.
  • Generous employers who provided more than the city’s statutory minimum sick leave since March 4th can offset hours already given from the additional 80.
  • The LA Supp Sick pay rate is the employee’s average pay between February 3rd and March 4th (capped at $511 consistent with the FFCRA).
  • No doctor’s notes are needed.
  • LA Supp Sick pay can be used until December 31, 2020 when the statute expires.

This LA Supp Sick Ord should be signed by Mayor Garcetti this week.  At that time, impacted employees may request this additional sick time (although if they are already on unemployment they will need to advise the EDD so as not to double dip on benefits).

We can expect other cities to follow with similar ordinances.

Feeling overwhelmed with new statutes relating to Covid 19?  Join the club and subscribe to get updates from Fox Rothschild.  We’ve got it all covered for you in one place!

One of my favorite things about California employment law is that it changes constantly. But this coronavirus situation changes minute to minute, and that’s hard to keep up with. Here are resources to help you stay current. Here’s a link to various sites that contain information – some by Fox Rothschild LLP, some by government agencies. One of the resources you’ll find there is a list of answers to many of the questions employers have. Another is a link to a webinar that the inimitable Steve Ludwig and I presented earlier today. At that link, you can review the slides and listen to the audio.

Stay tuned for updates, too. I promised to answer some of the many questions that we didn’t get to during the hour-long presentation.

To our friends in the HR community: We’re well aware of the challenges you’re dealing with and will do what we can to provide you the tools you need. Stay safe!

With the rapidly evolving landscape, new issues arise daily for employers.  Join our Labor & Employment and Hospitality teams, on March 12th at 12pm pacific time, for a Q&A format webinar on addressing COVID-19 concerns at work.  While the focus will be on customer-facing industries such as hospitality and retail, most guidance is applicable to all.  Register here and we look forward to you joining us.

With cases of COVID-19, or novel Coronavirus, at 87 and rising in the United States, communities are bracing for widespread impact.  Here are some issues for consideration in managing wellness (and fear) in the workplace:

Protecting Employees

  • Reduce or cancel non-essential business travel (especially international).  Monitor relevant travel advisories and consider work-from-home arrangements upon return from travel.  Employees may refuse to travel under OSHA  in certain circumstances.
  • Limit attendance at large conferences, if not already canceled.
  • Limit workplace visitors, instead utilizing remote meetings or conference calls, where available.
  • Encourage sick employees to stay home.  California employees may utilize paid sick leave, however, employers may consider advancing or extending paid sick leave or telecommuting arrangements to minimize workplace exposure. Consider implementing temporary policies addressing current workplace needs.
  • Contemplate staffing needs if customer-facing employees do not feeling comfortable reporting to work or become ill.  Remember, on-call time must generally be paid.
  • Provide additional supplies such as alcohol-based hand sanitizers, tissues, antibacterial soap and wipes throughout the workplace.
  • Increase routine cleaning on frequently touched surfaces.
  • Communicate any workplace policy changes and continue to encourage prevention techniques.

Reducing Legal Risk

  • OSHA requires employers to provide employees with a safe working environment and may not retaliate against employees for refusing to work where a reasonable belief of injury or imminent death might occur.  Updated guidance on OSHA and coronavirus can be found here.
  • Remember responsibilities to engage in an interactive dialogue and to reasonably accommodate.
  • Reinforce non-discrimination policies and prohibitions based on national origin and disability.  Employers may also be liable for adverse treatment of an employee based on a perceived disability, making the case for a well-documented interactive dialogue with the employee even more critical.
  • Ensure no retaliation for employees who express protected activity or concerns over health and safety at work.
  • Employers are limited in the ability to ask for private health-related information; information may be requested on a case-by-case basis or to establish a reasonable accommodation. Employees may face delays in obtaining return to work notes from health care providers, so use be prepared for flexibility in enforcement of policies.
  • Employee testing or temperature taking cannot be mandated, but employers can require testing based on reasonable suspicion.

With a swiftly evolving landscape, employers should be assessing all aspects of their work environment, building response teams and communicating with employees as appropriate.  Our team is always here to talk through these novel issues as they arise in real-time.

A recent ruling confirmed that the time an employee spends waiting in line for a security check is considered “hours worked” in California and must be paid.  The California Supreme Court ruling applies even though the employees choose to bring in bags to work.  Put another way, the employees could skip the line by not bringing a bag, a purse, or even a phone to work.

This ruling is not surprising.  Clients from out of state are often surprised by California’s broad definition of “hours worked” compared to federal law under the FLSA.  Another difference is travel time.  Here in California, a non-exempt employee must be paid essentially door-to-door for travel time, regardless of what day travel incurs.  Under the FLSA, the standard is much more employer-friendly and fact dependent.

The moral of the story?  Just about everything is considered hours worked in California.  If you ever start to think otherwise, just remember that what is legal in California isn’t logical, and what is logical in California is not necessarily legal.

One of the hottest issues in employment law is Whistleblowing.

  • Did you ever wonder why the President can fire people who testify against him, but a California employer would be sued in a hot minute for doing so?
  • Or why certain high profile figures can be “handsy” or “flirty” (or way more) and get away with it, but others are being “outed” by victims with time-barred claims, crushed with job loss, litigation (and maybe even jail time) in the #MeToo era?
  • And did you know that even though most Whistleblowing statutes (such as California Labor Code Section 1102.5) do not provide for attorneys’ fees, that the Plaintiff’s bar is now arguing that PAGA applies?

If these issues keep you up at night (and they should), no worries.  Come to the Los Angeles County Bar Association’s 40th Annual Labor & Employment Law Symposium on March 11, 2020, and hear me and two colleagues from the “dark side” (i.e. Plaintiff’s bar), Gina Browne Olivares and David Myers, present on these hotly contested and very topical issues.

You can register here.  Hope to see you on March 11th!

Gig economy giants Uber and Postmates failed to convince U.S. District Judge Dolly Gee that she should grant an injunction to prevent enforcement of AB-5.  While seeking to halt enforcement of AB-5, the companies concurrently contend that the law does not apply to their drivers.  In case you’re just tuning in, AB-5 creates a legal presumption that all workers in California should be employees unless they pass a stringent ABC test or fall into a detailed exemption, which you can read more about here.

You may be familiar with the AB-5 ABC test, which provides that to establish independent contractor status in California beginning on January 1, 2020, employers must satisfy all three of the following prongs:

A) The company must not be able to control or direct what the worker does, either by contract or in actual practice;
B) The worker must perform tasks outside of the hiring entity’s usual course of business; and
C) The worker must be engaged in an independently established trade, occupation or business.

In the lawsuit, Uber and Postmates contend their delivery drivers  meet the ABC test and are properly classified as independent contractors, because the work performed is outside the usual course of their business.

But Uber and Postmates have not yet been forced to defend their position in court, despite a  tweet by Assemblymember Lorena Gonzalez asking local City Attorney’s office to actively enforce AB-5 against Uber specifically.  It remains to be seen whether cases will continue to settle through use of mandatory arbitration agreements, which is another hot topic.  Or, whether gig companies will be forced to defend their position, given the court’s refusal to halt enforcement of AB-5.  The companies’ request for an injunction claimed AB-5 was unconstitutional because it violated the equal protection and due process clauses of the Fourteenth Amendment, among other clauses.  But, today’s order found that AB-5 served a public interest and did not unlawfully target gig economy workers in violation of state or federal law.

Indeed, based off plain language of the bill and the many, many phone calls I have received since the law passed last fall, AB-5’s statutory language is broad and encompasses many more industries than just gig workers.  For companies still assessing their worker status or figuring out potential classification options, we have had many discussions surrounding:

  • The Uber approach and whether the “usual course of business” can be creatively defined.
  • The idea of utilizing a staffing agency as an employer (note joint employment concerns).
  • Whether a professional service exemption applies.
  • Whether a business to business exemption could apply.
  • Whether to pretend you’ve never heard of AB-5 (not recommended).

Any member of our team is happy to discuss the myriad of options and risks associated with AB-5, now that its enforcement has cleared one more constitutional hurdle.

AB 51, which restricts workplace arbitration, was scheduled to take effect on January 1, 2020. On December 30, 2019, US District Judge Kimberly Mueller granted a temporary restraining order to prevent the legislation from taking effect.  On January 31, 2020, she issued a preliminary injunction extending the ban, and promised to explain her reasoning in more detail later. On February 6, 2020, she provided that more detailed explanation.

AB 51 made it unlawful (even criminal) for anyone to require an applicant or employee to waive their right to have claims under the Fair Employment and Housing Act or Labor Code decided in court.  While the prohibition did not specifically mention arbitration, it was clear from the language and comments by the bill’s sponsors that that was the intent.

There is, however, a body of federal law (the Federal Arbitration Act) that prohibits states from imposing burdens or restrictions on arbitration agreements that they do not impose on other contracts. Former Governor Jerry Brown vetoed earlier versions of AB 51 because they ran afoul of federal law.  The drafters of AB 51 attempted to draft their way around the problems faced by the earlier bills. For one thing, AB 51 doesn’t even mention arbitration except to (1) exempt arbitrations with registered broker-dealers under the Securities Exchange Act of 1934; and (2) state that the statute does not invalidate existing agreements to arbitrate that are enforceable under the FAA.  Still, their intent to do away with workplace arbitration was clear. While Federal law states that courts must place arbitration agreements on equal footing with other types of contracts, the proposed state law says that asking someone to sign such an agreement is a misdemeanor.

The Supremacy Clause of the US Constitution says that “the Laws of the United States.. shall be the supreme Law of the Land….” This gives the federal government the power to preempt state regulation of certain areas. The employer groups that challenged AB 51 argued that the statute conflicted with the federal government’s declaration that states cannot put burdens on arbitration agreements that aren’t placed on other types of contracts. The state of California argued (unsuccessfully) that the bill does not regulate arbitration agreements, it instead regulates employers efforts to have workers sign them. Judge Mueller was not swayed by this sophistry. Nor was she swayed by the FAA exclusion mentioned above. On this issue, the state argued that, even if the employer and managers faced civil and criminal penalties, the agreement remained enforceable. It doesn’t require much analysis to see that such a provision does not put arbitration agreements on an equal plane with other types of contracts.

If arbitration is outlawed, only outlaws will have arbitration.

So the state remains banned from seeking to enforce AB 51. The litigation will proceed in the US District Court and will undoubtedly be appealed, whatever the outcome. So this is not the last word. As things stand now, however, employers in California remain free to enter into arbitration agreements with their employees.

Here is the latest in a series of blogs about AB 51, the California bill that threatened mandatory arbitration.  Thankfully, the District Court granted the preliminary injunction in full (not just temporarily), and stopped AB 51 from being enforced.  That means that as long as the arbitration agreement is governed by the FAA (Federal Arbitration Act), it can still be mandatory.  The Court promised a more detailed ruling with its analysis, which we will post when available.

Bottomline, California employers can still have mandatory arbitration agreements, or arbitration agreements with an opt-out provision.  AB 51 is not enforceable.  This case may be headed to the 9th Circuit and eventually the US Supreme Court, but until then, mandatory arbitration is lawful (as long as not unconscionable per existing California law).