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Robert Foster

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Robert Foster is an associate in the Labor and Employment Practice Group in the firm's San Diego (Del Mar) office.

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As the end of the year draws near, it is important for employers in California to remember there are multiple COVID-19 regulations and laws that will still apply to the workplace in 2023. The Division of Occupational Safety and Health of California’s (“Cal/OSHA”) constantly evolving COVID-19 Emergency Temporary Standard (“ETS”) that has been in effect for the last two years is finally expiring. However, the ETS will be replaced by Cal/OSHA’s new COVID-19 Prevention Non-Emergency Regulations (“Permanent Standard”), which will remain in effect through 2024. This article provides a comprehensive update on the Permanent Standard, AB 2693 (the new law modifying an employer’s notification and reporting requirements under Labor Code section 6409.6), and the current state of COVID-19 Supplemental Paid Sick Leave.…

Continue Reading Ring in the New Year With a Refresher on California’s COVID-19 Regulations and Laws

The Ninth Circuit Court of Appeals panel that originally decided Chamber of Commerce v. Bonta last fall recently issued an order withdrawing its prior opinion and granting a panel rehearing. The divided panel’s original decision upheld portions of Assembly Bill 51 (“AB 51”), a California law that prohibits employers from requiring that employees sign an arbitration agreement as a condition of employment. The panel’s decision to rehear the appeal is notable because it suggests that the panel may rule that the Federal Arbitration Act (“FAA”) preempts AB 51 in its entirety following the U.S. Supreme Court’s recent decision in Viking River Cruises, Inc. v. Moriana. The Supreme Court in Viking River Cruises held that California law precluding the division of PAGA actions into individual and non-individual claims through an agreement to arbitrate was preempted by the FAA.…

Continue Reading Ninth Circuit Grants Rehearing on California Law Banning Mandatory Employment Arbitration Agreements

On September 15, 2022, the California Occupational Safety and Health Standards Board (“Board”) will hold a public hearing to address its draft proposed COVID-19 Permanent Standard (“Permanent Standard”).[1] At the hearing, the Board will hear comments from the public in favor of adopting, amending, or repealing the Permanent Standard. The good news for employers who are tired of revising their COVID-19 policies is that the Permanent Standard largely tracks with the protocols already required under the current COVID-19 Emergency Temporary Standards (“ETS”). Additionally, the Permanent Standard eliminates or reduces some of the costly requirements under the current ETS. The bad news, however, is that it appears COVID-19 protocols are here to stay for the near future and California employers will need to continue to remain in compliance with the state’s COVID-19 regulations and enforce them in the workplace.…

Continue Reading Cal/OSHA Announces Public Hearing on Proposed COVID-19 Permanent Standard

On April 21, 2022, the California Division of Occupational Safety and Health (“Cal/OSHA”) Standards Board adopted the fourth iteration of its COVID-19 Emergency Temporary Standards (“ETS”). Sheppard Mullin previously wrote about the proposed revisions to the current ETS here, which were adopted without substantive changes. The revised ETS will become effective once approved by the Office of Administrative Law, which should occur by May 5, 2022, and the revised ETS will remain in effect until December 31, 2022.
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Continue Reading Cal/OSHA Adopts Fourth Iteration of COVID-19 Emergency Temporary Standards

At its upcoming April 21, 2022 meeting, the California Division of Occupational Safety and Health (“Cal/OSHA”) Standards Board will decide whether to readopt the fourth iteration of its COVID-19 Emergency Temporary Standards (“ETS”), which first went into effect on November 30, 2020.  The ETS apply to all employees not covered by Cal/OSHA’s Aerosol Transmissible Disease Standard or employees working alone or at home, and require employers to establish, implement, and maintain a COVID-19 Prevention Program (“CPP”), among other things.  Sheppard Mullin previously wrote about the implementation of the original ETS here, and previous revisions to its requirements here and here. …
Continue Reading Further Updates to Cal/OSHA’s COVID-19 Emergency Temporary Standards Likely Coming Soon

On January 13, 2022, the United States Supreme Court granted emergency relief to the petitions of numerous states, businesses, and non-governmental organizations by staying the implementation and enforcement of the federal Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Emergency Temporary Standard (“ETS”).  Under the original ETS, private employers with 100 or more employees were required to implement a mandatory vaccination or weekly testing/face covering policy, which constituted a drastic change in policy for many employers and contradicted many state requirements.  Although the U.S. Court of Appeals for the Sixth Circuit has yet to ultimately decide on the merits whether the ETS can stand, the stay by the Supreme Court indicates how the Court may ultimately view the ETS and OSHA’s authority to require vaccinations and weekly testing.  Nonetheless, the ETS is not dead yet, so employers should continue to monitor the appeal process and OSHA’s response to the stay.
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Continue Reading U.S. Supreme Court Stays Implementation of OSHA’s COVID-19 ETS Requiring Vaccination or Weekly Testing Policy

For the second time, the standards-setting board for the California Division of Occupational Safety and Health (“Cal/OSHA”) has readopted, with revisions, the agency’s COVID-19 Prevention Emergency Temporary Standards (“ETS”).  The revised ETS become effective on January 14, 2022, and impose new obligations on nearly all employers in the Golden State.
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Continue Reading California Employers Face New Obligations Under Cal/OSHA’s Revised COVID-19 ETS

In our annual California Legislative Update, we briefly explained that SB 606 expanded the enforcement authority of the California Division of Occupational Safety and Health (“Cal/OSHA”) in various ways.  With the new law’s effective date (January 1, 2022) right around the corner, we are providing a more detailed breakdown on the two new categories of Cal/OSHA violations created by SB 606 and its potential impact on California employers.
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Continue Reading New Year Means Newly Expanded Enforcement Authority for Cal/OSHA

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 November 4, 2021, in response to President Biden’s Executive Order, the Department of Labor, through the Occupational Safety and Health Administration (“OSHA”), issued an Emergency Temporary Standard (“ETS”).  You can read our prior article about the ETS here.  Generally, the ETS mandates all employers with 100 or more employees to require employees be vaccinated against COVID-19 or undergo weekly testing.  The ETS was immediately halted when the United States Court of Appeals for the Fifth Circuit issued a temporary stay.  Then, numerous lawsuits were filed across the nation, and actions were pending in each of the other Circuit Courts.  The Sixth Circuit “won” the multidistrict lottery, and was selected to hear the combined challenges, including OSHA’s emergency motion to dissolve the stay.  You can read our prior article about the temporary stay here.
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Continue Reading Sixth Circuit Reinstates OSHA’s Emergency Temporary Standard for Private Employers Mandating COVID-19 Vaccinations or Weekly Testing

On September 27, 2021, California Governor Gavin Newsom signed SB 62, also known as the Garment Worker Protection Act, into law.  SB 62 makes California the first state to require an hourly minimum wage for garment workers by banning piece rate pay.  SB 62 expands the definition of a garment manufacturer and extends the scope of liability for wage and hour violations to clothing brands—and likely some retailers.  Under SB 62, “any person contracting for the performance of garment manufacturing” is joint and severally liable with any of their manufacturers and contractors, thus creating upstream responsibility for unpaid wages, attorney’s fees, and civil penalties arising from Labor Code violations.  Although the new law does not become effective until January 1, 2022, companies that contract or subcontract for garment manufacturing, or have employees who perform garment manufacturing functions in California, should begin familiarizing themselves with SB 62 and determining whether/how it affects their business.
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Continue Reading California Passes Law Establishing New Wage and Hour Requirements for Employers in the Garment Industry