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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.

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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

With the rise of the #MeToo movement, companies have been forced to re-examine how they litigate and settle allegations of sexual harassment in the workplace.  Specifically, companies are facing increasing criticism if they compel claims of sexual harassment to private arbitration or force employees who allege sexual harassment to sign settlement agreements with confidentiality clauses, effectively shielding both the company and the alleged sexual harasser from public scrutiny.
Continue Reading #MeToo Changes the Face of Sexual Harassment Litigation for Employers

In the recent election, San Jose voters passed a voter initiative creating the “Opportunity to Work” ordinance.  The purpose of the ordinance, which will become effective on March 13, 2017, is to promote full-time jobs and to prevent San Jose employers from choosing to employ workers on a part-time basis only as a means of reducing costs of providing health insurance or other benefits.  The ordinance requires San Jose employers to offer hours of work to existing qualified part-time employees before hiring new staff, to keep records of its compliance with the ordinance, and to refrain from retaliation against any employee who exercises rights under the ordinance.
Continue Reading Part Time Workers Must Be Offered Additional Hours: San Jose’s Opportunity to Work Ordinance (Effective March 2017)