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Brian Fong

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Brian S. Fong is a partner in the Labor and Employment Practice Group in the firm's San Francisco office.

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We previously described the “framework” for an agreement to reinstate California’s Supplemental Paid Sick Leave.  Governor Newsom signed Senate Bill (“SB”) 114 into law on February 9, 2022.  The specifics of the bill are summarized below.

Author’s Note: The prior version of this article noted SB 114 required employers to list the amount of CSPSL used by an employee during a given pay period.  SB 114 can be interpreted to require that wage statements list both available and used CSPSL.  The wage statement section has been updated to reflect best practices in light of the ambiguity in the law.…

Continue Reading California Reinstates COVID-19 Supplemental Paid Sick Leave

On January 25, 2022, Governor Gavin Newson announced a “framework” for an agreement to reactivate California’s COVID-19 Supplemental Paid Sick Leave (“COVID PSL”) law for the period from January 1, 2022 to September 30, 2022.  California employers should assume this agreement will become law in some form and prepare accordingly to re-institute supplemental paid sick leave for their California employees in the near term.
Continue Reading California Likely to Soon Implement COVID-19 Supplemental Paid Sick Leave, Retroactive to January 1, 2022

On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS).  This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated.  While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022.  Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.
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Continue Reading OSHA Emergency Temporary Standard Survival Guide

On Thursday, August 12, 2021, the San Francisco Department of Public Health (SFDPH) published an order strengthening the COVID-19 safety requirements applicable to many business establishments and event spaces in the City and County of San Francisco (the “Order”).  As outlined below, the Order requires significant new vaccine mandates for San Francisco businesses operating (1) Indoor Food and Drink and Fitness Facilities; (2) Large Outdoor and Indoor Events; and (3) High Risk Care or Living Settings and Other Health Care Facilities.
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Continue Reading San Francisco Mandates Proof of Full Vaccination for Entry Into Many Establishments

On June 17, 2021, the Cal/OSHA Standards Board voted to adopt revisions to the Emergency Temporary Standards (ETS), and Governor Gavin Newsom signed an executive order allowing the revised ETS to go into effect immediately.  The revised ETS now applies to nearly all workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
Continue Reading Cal/OSHA Finally Enacts Revised Emergency Temporary Standards

UPDATE:  At its June 9, 2021, special meeting, the Cal/OSHA Standards Board voted to withdraw the revisions to the Emergency Temporary Standards (ETS) that had been approved at its June 3rd meeting, and were set to go into effect on June 15th.  Instead, Cal/OSHA indicated that it will further consider the recent guidance from the CDC and the California Department of Public Health with respect to face coverings for fully vaccinated individuals.  For now, the original ETS that has been effective since November of 2020 will remain in place.  The Standards Board will convene to consider potential further revisions at a future meeting, perhaps as early as its next scheduled meeting on June 17th.   Stay tuned for further updates.

After several fits and starts, on June 3, 2021, the Cal/OSHA Occupational Safety & Health Standards Board finally passed revised Emergency Temporary Standards (ETS) that now take into account employee vaccination status and loosening restrictions from the Centers for Disease Control (CDC) and California’s elimination of the colored Tier system.  The revised ETS will go into effect on June 15, 2021 and creates additional employer obligations beginning on July 31, 2021.  The Cal/OSHA Standards Board has indicated that it will convene a subcommittee to consider further revisions in the coming months.
Continue Reading Cal/OSHA Approves Revised Emergency Temporary Standards

UPDATE:  At its May 20, 2021, meeting, the Cal/OSHA Standards Board agreed to table its vote on the proposed revised Emergency Temporary Standards to allow Division staff time to draft potential revisions that would more closely align Cal/OSHA’s requirements with the CDC’s latest guidance concerning face coverings for fully vaccinated individuals.  Proposed draft revisions will be posted by May 28, 2021, and that draft will come up for a vote on June 3, 2021.  If approved, the revised ETS would become effective on June 15, 2021.  We will provide further details as they arise.

Prompted by increased availability of vaccine appointments, and broad eligibility for all U.S. adults and teenagers, the federal Centers for Disease Control (CDC) and California’s Department of Public Health (CDPH) have loosened restrictions with respect to fully vaccinated individuals, defined as those who are two weeks past their final required vaccination dose (second dose of either Moderna or Pfizer-BioNTech, or single dose of the Johnson & Johnson/Janssen vaccine).  Cal/OSHA now proposes to align itself with this guidance through proposed revisions to its Emergency Temporary Standards (“ETS”), which have been effective since November of 2020, just prior to the pandemic’s winter peak. …
Continue Reading Significant Updates to Cal/OSHA’s Emergency Temporary Standards on the Horizon

On July 3, 2020, San Francisco enacted a temporary emergency ordinance requiring businesses with more than 100 employees to offer reemployment to employees laid off due to the COVID-19 pandemic.  Known as the “Back to Work” emergency ordinance and aimed at mitigating the severe economic harm to individuals who have been unable to work due to the public health emergency caused by COVID-19, this enactment creates a right to reemployment for eligible laid-off workers if their prior covered employer resumes business operations and/or seeks to re-staff.  According to its terms, this statute will remain in effect for only 60 days.  Thus, unless it is extended or reenacted, the statute will remain in effect only through September 1.  However, what its lingering legal effect will be in terms of hiring rights, duties and obligations in San Francisco beyond its expiry remains an open question. …
Continue Reading San Francisco Enacts a Temporary Ordinance Granting Workers Laid Off Due to COVID-19 a Right to Reinstatement

On March 19, 2020, California Governor Gavin Newsom issued a mandatory “stay-at-home” order, directing all California residents to stay home or at their place of residence.  This order has taken immediate effect and is in place until further notice.
Continue Reading California Statewide Stay at Home Order: What Employers Need to Know

Enacted in 1963, the Equal Pay Act prohibits differential payments between male and female employees doing equal work except when made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a fourth, catch-all exception for “a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). These exceptions are affirmative defenses which the employer must plead and prove.

In Rizo v. Yovino, 2018 U.S. App. LEXIS 8882, an en banc panel of the Ninth Circuit considered whether an employee’s prior salary was a permissible “factor other than sex” under the Equal Pay Act. Prior Ninth Circuit precedent held that “the Equal Pay Act does not impose a strict prohibition against the use of prior salary.” Kouba v. Allstate Insurance Co., 691 F.2d 873, 878 (9th Cir. 1982). Under Kouba, employers were prohibited from using a factor which “causes a wage differential between male and female employees absent an acceptable business reason.” Id., at 876.

On April 9, 2018, a bare majority of the 11 judge en banc panel of the Ninth Circuit overruled Kouba and held that “a legitimate ‘factor other than sex’ must be job related and that prior salary cannot justify paying one gender less if equal work is performed.” Rizo v. Yovino, 2018 U.S. App. LEXIS 8882, at *15. Writing for the majority, the late Stephen Reinhardt announced a bright-line rule that “prior salary alone or in combination with other factors cannot justify a wage differential.” Id., at *5-6. Five judges concurred in the result, but disagreed with the majority’s holding that prior salary can never suffice to constitute a “factor other than sex” sufficient to justify a wage differential.
Continue Reading Ninth Circuit Holds Prior Salary Cannot Justify Wage Differences

The California Supreme Court issued its long awaited ruling in Mendoza v. Nordstrom, in which it clarified California’s so-called “day of rest” rule, which guarantees employees “one day’s rest therefrom in seven,” prohibits employers from “causing” its employees to work more than six days in seven, and exempts employees when, inter alia, the total hours of employment do not exceed 30 hours in any week or six hours in any one day. (Cal. Labor Code §§ 551, 552, 556.) Although part of California law since 1858 in one form or another, the day of rest rule had not been actively litigated until Plaintiffs Christopher Mendoza and Meagan Gordon brought a Private Attorney General Act claim against their former employer, Nordstrom, Inc. for allegedly failing to provide them, and other aggrieved employees, “one day’s rest therefrom in seven.” Nordstrom removed the case to federal court and prevailed at the district court level. On appeal, the Ninth Circuit asked the California Supreme Court to determine:…
Continue Reading Mendoza v. Nordstrom – Day Of Rest Rule