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Paul Cowie is a partner in the Labor and Employment Practice Group in the firm’s Silicon Valley office.

The Equal Employment Opportunity Commission (“EEOC”)—the agency tasked with enforcing federal labor laws—was deputized by Congress in 1972 with authority to bring lawsuits against employers for violating anti-discrimination laws and retaliating against employees.  Since then, the agency has made a concerted and aggressive effort to challenge, among other things, standard clauses in separation agreements that have the potential to chill former employees’ participation in legal actions against their former employers, including non-cooperation and covenant not to sue clauses.  This concern is especially salient in the age of COVID-19, where many employers are using separation agreements at a breakneck pace due to the unprecedented rate of employee layoffs, and EEOC enforcement actions may be just around the corner.
Continue Reading Employee Separation Agreements Likely to Face Increased EEOC Scrutiny

After a decade of ups and downs on the question of federal preemption, the Ninth Circuit Court of Appeals has upheld the Federal Motor Carrier Safety Administration’s (“FMSCA”) decision to preempt California’s meal and rest break rules.  The long-awaited decision in IBT v. FMCSA upholds the FMSCA’s December 2018 determination that drivers, who are involved in interstate commerce and subject to federal hours-of-service regulations, are exempt from California’s stringent meal and rest break rules because they are “incompatible” with federal regulations.  “The FMCSA reached this conclusion because California required more breaks, more often and with less flexibility as to timing,” the Court’s three-judge panel said in its January 15 opinion.
Continue Reading The Ninth Circuit Puts the Brakes on Truckers’ California Meal and Rest Break Claims

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 April 14, 2020, the San Francisco Board of Supervisors unanimously passed the Public Health Emergency Leave Ordinance (PHELO).  Mayor London Breed signed the ordinance into law on April 17, 2020, making it effective immediately.  The PHELO was created in an effort to fill the gap left by the federal Families First Coronavirus Response Act (FFCRA).
Continue Reading San Francisco Surpasses Other Jurisdictions and Enacts Expansive COVID-19 Related Paid Sick Leave

To slow the spread of the coronavirus, millions of United States workers are under government orders to stay at home.  However, many businesses considered “essential critical infrastructure” continue to operate and their employees are needed to work.  Many of those businesses are administering health tests like temperature checks to ensure the health and safety of their workforce and the public.  When quarantine restrictions eventually lift, businesses will reopen and employers may choose to screen employees before returning to work.  In a question and answer format, this article discusses the intersection of laws that require employers to maintain a safe work environment with an employee’s right to privacy.

According to the World Health Organization, the primary symptoms of coronavirus include fever, tiredness and dry cough.  Other reported symptoms may include shortness of breath, aches and pains, sore throat, nausea, runny nose and loss of smell or taste.  Temperature checks are currently the most common form of workplace testing.  As we learn more about the virus, other forms of inquiries or testing may arise.
Continue Reading Employee Privacy Forecast: Temperature Checks

On March 19, 2020, Los Angeles County and City officials issued separate orders which significantly restrict public mobility and business operation in Los Angeles in an effort to curtail the spread of the novel coronavirus.

hsr filings, Coronavirus


Continue Reading Los Angeles County and City Ban Gatherings and Order Immediate Closure of “Nonessential” Businesses in an Effort to Curb COVID-19: What You Need to Know About L.A.’s Safe At Home Orders

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

On March 17, 2020, California Governor Gavin Newsom signed Executive Order N-31-20 to ease restrictions on commercial drivers engaged in support of emergency relief efforts.  This new order was issued in conjunction with the Federal Motor Carrier Safety Administration’s (“FMCSA”) Emergency Declaration 2020-02 announced last week to ensure the free flow of critical supplies and equipment in interstate commerce.
Continue Reading Governor Newsom Issues Executive Order Easing Restrictions on Commercial Drivers During COVID-19 Outbreak

On October 10, 2019, Governor Newsom signed Assembly Bill 51 (AB 51) into law. This important legislation is aimed at reversing a series of cases that allow employers to unilaterally impose pre-dispute arbitration agreements on their employees as a condition of hire or continued employment. Its stated purpose is to ensure that: (1) all persons have the full benefit of the rights, forums and procedures (rights) established by the California Fair Employment and Housing Act (FEHA) and the state’s Labor Code, including the right to file and pursue a civil action or complaint with, or otherwise notify any state agency, public prosecutor, law enforcement agency or court or other governmental entity of, any alleged violation of rights; and (2) there is no retaliation against a person for refusing to consent to the waiver of such rights, and that any contract relating to the relinquishment of those rights is entered into as a matter of voluntary consent, not coercion. The new law goes into effect on January 1, 2020.
Continue Reading AB 51 – Arbitration Under Attack

On September 5, 2019, the Washington Supreme Court issued a huge win for all non-agricultural employers who pay commission or piece-rate pay to their employees in Washington state. In a 6-3 decision, the Washington Supreme Court held in Sampson v. Knight Transportation (No. 96264-2) that a non-agricultural piece-rate employer complies with the Washington Minimum Wage Act when an employee’s total earnings in given workweek divided by the employee’s total hours worked in the same workweek exceeds the applicable minimum wage rate. While this conclusion may seem obvious, the Washington Supreme Court in 2018 rejected the same workweek averaging method for agricultural workers. Carranza v. Dovex Fruit Co., 190 Wn. 2d 612 (2018) held that the Washington Minimum Wage Act (“MWA”) requires agricultural workers earning piece-rate pay to be separately compensated on an hourly basis for all “activities outside of piece-rate [] work.” The question in Sampson was whether the holding in Carranza should be extended to non-agricultural piece-rate employers. Relying on a regulation promulgated over 40 years ago by the Washington Department of Labor & Industries (“DLI”), the Washington Supreme Court held that Carranza’s separate compensation rule is confined to the narrow context of agricultural employment.
Continue Reading Peace for Piece-Rate Employers in Washington

Signaling another positive development for interstate motor carriers operating in California, the United States District Court for the Central District of California (the “Central District”) recently dismissed a truck driver’s claims that motor carrier U.S. Xpress failed to provide a class of drivers with legally required meal and rest periods compliant with California law. See, Ayala v. U.S. Express Enters., Inc. et al. Case No. 5:16-cv-00137-GW-(KKx) (Order Granting Partial Summary Judgment). The Court, in granting U.S. Xpress’s motion for partial summary judgment, stated that it did not possess the authority to review the merits of the case since the Federal Motor Carrier Safety Administration (“FMCSA”) determined, in December 2018, that Federal law preempts California state law. The Central District applied the FMCSA’s order retroactively to the Ayala case, filed in 2016, stating that it was bound by the FMCSA order and would apply the order in similar cases unless and until the order was invalidated by the Ninth Circuit.
Continue Reading California’s Meal and Rest Break Rules for Commercial Motor Vehicle Drivers Remain Preempted by Federal Law . . . For Now