2020

On December 3rd, Governor Gavin Newsom and the California Department of Public Health implemented the Regional Stay At Home Order (the “Order”), California’s latest response to the COVID-19 pandemic.

California’s Occupational Safety and Health Standards Board has passed emergency [regulations](https://www.dir.ca.gov/oshsb/documents/noticeNov2020-COVID-19-Prevention-Emergency.pdf) requiring employers to implement a detailed written COVID-19 Prevention Program and specifying provisions which must be included.

Effective November 21, 2020, California issued a Limited Stay-At-Home Order (curfew) for all “purple tier counties,” including Los Angeles County.

The Office of Federal Contract Compliance Programs (OFCCP) has published a request for information (RFI) in the Federal Register seeking comments, information, and materials from the public (mainly meaning federal contractors and subcontractors, hereinafter “contractors,” but also employees) that involve race or sex stereotyping or scapegoating.

On September 20, 2020, President Trump issued Executive Order 13950 (EO 13950) which takes direct aim at certain diversity and/or inclusion training programs that the President views as promoting what he calls race and sex stereotyping.

Serving as a stark reminder of the consequences of failing to comply with state and local COVID-19 safety protocols, the Department of Industrial Relations published a news release on September 30, 2020 announcing that Cal/OSHA issued citations to five area supermarkets in Los Angeles for COVID-19 workplace safety violations.

California Assembly Bill 685 was recently passed and amends the California Labor Code to impose a number of new COVID-19 related reporting and other requirements.

California Governor Gavin Newsom signed Senate Bill 1159 (“SB 1159”) into law, codifying his previous Executive Order which established a legal presumption that certain workers with a COVID-19 related illness developed that illness in the course of their employment. The new law extends the timeline of the presumption until 2023 and imposes additional requirements.

We always like to share good news, especially with so many stressful events occurring all around us. In this 2020 issue of Firm Notes, we once again highlight the achievements of the firm and several of our lawyers.

California Governor Gavin Newsom recently signed Executive Order N-62-20 , establishing a temporary legal presumption that certain employees who develop a COVID-19 related illness did so in the course of their employment, and thus the illness is covered by your workers compensation policy.

The Department of Labor has issued revisions and clarifications to the emergency paid family leave and paid sick leave temporary rules originally issued on April 1, 2020 under the FFCRA. These temporary rules are set to expire on December 31, 2020. The Department’s actions are largely in response to a New York District Court ruling invalidating parts of the FFCRA.

Last week, Governor Gavin Newsom signed into law Assembly Bill 1867 which requires covered employers to provide COVID-19 supplemental paid sick leave to their California employees beginning no later than September 19, 2020.

Much has been written about the world-wide opioid addition crisis. In a great many of these cases, those addicted to opioids became dependent on the drug after being prescribed the medication for legitimate medical reasons.

As California continues its re-opening under the new four-tier color-coded system announced by Governor Newsom on August 28th and an increasing number of Californians are leaving their homes, it is important to remember that this gradual re-opening will only be successful if people follow existing social distancing and face covering guidelines.

On August 28th, California’s Governor Newsom announced a new, color-coded process for reopening California businesses. The State’s new program is designed to be more deliberate and gradual than the rule it replaces. The new system is designed to ensure that businesses don’t reopen too soon, like they did earlier this year when restrictions were eased. In simple terms, the rules tie loosening of restrictions to more favorable testing results. The higher the case statistics, the tighter the restrictions.

COVID-19 has forced many employees to work from home or “telework”. This has left employers struggling with how to track hours to make sure they are in compliance with federal and state wage and hour laws. The US Department of Labor, Wage and Hour Division, issued a Bulletin in an effort to provide guidance regarding the employer’s obligation under FLSA to exercise reasonable diligence in tracking the hours of work of teleworking employees.

In grade school, we are taught that our signature is one of our most valuable assets. We also learn that if you sign a document without reading it, you may be binding yourself to a contract you don’t like. That’s exactly what happened in a recent Court of Appeal decision.

Despite the new test, Uber and Lyft have continued to assert that their drivers are properly classified as independent contractors. In response the state of California, the Los Angeles City Attorney, the San Diego City Attorney, and the San Francisco City Attorney sued both companies under AB5 for misclassifying their drivers.

California Labor Commissioner Lilia Garcia-Brower has filed the State's first enforcement action under AB 5, the controversial bill passed by the Legislature last year which dramatically restricts the treatment of workers as independent contractors in California.

On July 21, 2020, the National Labor Relations Board issued an important decision that gives employers broad protections to discipline or discharge employees who engage in abusive workplace conduct without running afoul of the National Labor Relations Act.

California’s Department of Industrial Relations’ Division of Occupational Safety and Health, also known as Cal/OSHA, has issued strict employer requirements for recording and reporting COVID-19 cases. Cal/OSHA’s guidance differs in some regards from federal OSHA guidance. As counties continue to open their doors, employers return employees to work, and COVID-19 cases continue to rise, employers need to understand when to record and report COVID-19 illness.

Effective July 13, 2020, Governor Newsom made a series of drastic moves designed to reduce the dramatic spread of COVID-19 in California.

The First Amendment to the United States Constitution precludes any law “respecting an establishment of religion, or prohibiting the free exercise thereof.”

There is a growing list of California cities and counties which have set their own minimum wage requirements. Whereas the state’s minimum wage is adjusted annually on January 1st , most of these local ordinances typically adjust their minimum wage on July 1st.

On July 1, 2020, Governor Newsom ordered tougher restrictions for 19 counties across the state that are seeing an increased spread of coronavirus, including Los Angeles County. This is part of his “dimmer switch” approach to reopening.

On July 21, 2020, the National Labor Relations Board issued an important decision that gives employers broad protections to discipline or discharge employees who engage in abusive workplace conduct without running afoul of the National Labor Relations Act.

Governor ordered all Californians to wear face coverings while in “high-risk situations” after growing concerns that an increase in coronavirus cases has been caused by residents failing to voluntarily take that precaution.

In a landmark decision, the United States Supreme Court has ruled that the term “sex” in Title VII also precludes discrimination against employees solely because they are gay or transgender.

On June 17, 2020 the Equal Employment Opportunity Commission (“EEOC”) updated its ongoing FAQ on COVID-19 and stated that _employers may not require antibody testing before permitting employees to re-enter the workplace._

On June 1, 2020, the NLRB announced some good news for employers faced with responding to a union election petition filed with the NLRB. Not surprisingly, organized labor galvanized to fight the new rules.

On May 19th, the City of Long Beach passed its own COVID-19 related Paid Sick Leave law. The law is effective immediately and has considerable overlap with the COVID-19 Paid Sick Leave laws passed by other localities with a few key differences.

In the midst of the chaos created by the COVID-19 pandemic, it is easy for employers to forget about their other obligations. One such obligation is that created by SB 1343, requiring employers to provide sexual harassment training to their employees by January 1, 2021.

For businesses that are open, or will be re-opening soon, the County of Los Angeles created numerous different printable posters to help protect employees and customers during the COVID-19 pandemic.

The County’s version of the Worker Recall and Retention Ordinances is almost identical to the City’s, except that the County’s Ordinances only apply to Commercial Property Owners and Hotel Employers in unincorporated areas.

The Los Angeles City Attorney’s office has filed criminal charges against 60 businesses across Los Angeles that were operating in violation of Los Angeles’ Safer At Home Order. The owners face criminal misdemeanor charges, and the businesses could lose their licenses to operate.

The coronavirus (COVID-19) pandemic is generating legal-related news of critical importance to all of us. For your convenience, we have created links to easily allow you to review our COVID-19 resources.

Please join us for a complimentary three-part webinar series where our COVID-19 team will offer up guidance on the critical employment issues and new legal pitfalls that employers face in planning for and implementing a viable re-opening plan.

On Monday, April 27th, six Bay Area counties and the City of Berkeley announced that they will issue revised Shelter-In-Place Orders extending through May. The current Shelter-In-Place Orders were set to expire on May 3rd.

Employers operating essential businesses during the COVID-19 pandemic potentially face significant liability if they do not strictly adhere to the various COVID-19 workplace guidelines issued by government agencies.

Occupational Safety and Health Administration (“OSHA”), the federal agency charged with ensuring safe working conditions and enforcing related government standards, just recently released a memorandum regarding enforcement of OSHA standards during the COVID-19 pandemic.

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, which requires employers with 500 or more employees nationwide – i.e. , employers that are exempt from the FFCRA – to pay up to 80 hours of COVID-19 supplemental paid sick leave to a broad range of employees.

As we previously reported, Los Angeles Mayor Eric Garcetti issued a Public Order mandating that certain large employers provide up to 80 hours of supplemental paid sick leave. The City just recently issued rules and regulations to clarify a number of unanswered questions regarding that Order.

The EEOC recently published updated guidance on compliance with EEO laws during the COVID-19 pandemic. We provide a summary of the relevant information regarding: Disability Related Inquiries; Confidentiality of Medical Information; Hiring; Reasonable Accommodation; and Pandemic-Related Harassment.

FFCRA went into effect on April 1 and since its enactment, there has been a tremendous amount of confusion surrounding it. However, the Department of Labor (DOL) has provided much needed clarification in its recently issued regulations.

On April 10, 2020, Mayor Garcetti launched the L.A. Emergency Child Care Connection to provide child care resources to essential employees of participating hospitals during the COVID- 19 crisis.

The County of Los Angeles Health Officer issued an Order requiring employers to post a notice and implement certain social distancing protocols. The Order is applicable to all essential businesses within the County of Los Angeles, with the exception of the cities of Long Beach and Pasadena.

As we anticipated in our Compliance Matter regarding the CARES Act unemployment benefits provisions, the Department of Labor has issued further guidance to states on how to administer these unemployment benefits. We summarize some of the key clarifications for individuals seeking these benefits below.

On April 7, 2020, Los Angeles Mayor Eric Garcetti issued an emergency Public Order mandating “larger” employers who are not covered by FFCRA to provide “supplemental paid sick leave” for specified COVID-19-related absences. The City of Los Angeles Order permits more employees to obtain these benefits than FFCRA, so we urge readers to review this information carefully.

On April 7, 2020, Los Angeles Mayor Eric Garcetti issued an emergency “Worker Protection Order” to protect workers in “essential businesses” which are exempt from state and local stay-at-home orders, such as employees working in grocery stores, restaurants, pharmacies, banks, hotels and transportation or ride-sharing services.

In response to the COVID-19 crisis, employers across the nation have swiftly implemented work-from-home policies in order to limit physical proximity among employees. The DHS has announced that it will defer the physical presence requirements for the Employment Eligibility Verification (Form I-9).

Late Friday night, the President signed the CARES Act (the Coronavirus Aid, Relief, and Economic Security Act). This issue of Compliance Matters summarizes some of the key provisions of the bill that employers should keep in mind in evaluating their options in navigating through these challenging times.

Last week, President Trump signed the Families First Coronavirus Response Act. The purpose of the law is to provide relief to employees who are displaced by issues surrounding the coronavirus (COVID-19) outbreak. Here is a Q & A that summarizes some of the key provisions of the new law…

During these unprecedented times, Employers are posed with challenging situations that are often at odds with traditional employment laws. Both the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing have issued useful guidance to help employers navigate these murky waters.

Ballard Rosenberg Golper & Savitt continue to monitor the coronavirus (COVID-19) situation closely. We are prepared to handle all business affairs in a wholly responsible and safe manner. We realize this health situation has already been disruptive to many businesses across the globe and wanted to share facts about what we are doing to support you.

The California Supreme Court once again expanded the scope of what is considered “compensable work” in its recent decision regarding Apple. In California, employers are required to pay employees for all “hours worked.”, including time where employees are subject to the control of their employer.

The Guidance provides recommended strategies for employers to use, and identifies planning considerations. We encourage you to review the Guidance and modify your approach to health and safety in light of the threat posed by Coronavirus accordingly.

Under the new law, employers with five (5) or more employees are required to either provide their own workplace retirement savings program (such as a 401(k) plan) or register for the CalSavers program and facilitate employees’ contributions to Individual Retirement Accounts.

On January 31, 2020, U.S. District Judge Kimberly Mueller issued a preliminary injunction against the controversial new California law (AB 51) which forbids California employers from requiring employees to enter into an arbitration agreement as a condition of employment. As a result, AB 51 will not go into effect until the conclusion of litigation, meaning …

With the recent outbreak of the coronavirus, employers need to be armed with practical advice to address the complicated workplace issues that stem from the outbreak. At the onset, all employers are responsible for providing a safe workplace for their employees under California’s Occupational Safety and Health regulations (“Cal/OSHA”).

On December 16, 2019, the NLRB changed the standard it uses when analyzing rules requiring confidentiality in workplace investigations. Confidentiality rules are now generally permitted and presumptively valid when limited to the duration of the investigation. Confidentiality rules extending beyond the investigation will be examined on a case-by-case basis.

On December 16, 2019, the NLRB reversed an Obama-era rule that permitted employees to use their employer’s email system for union organizing purposes. In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino , the NLRB held that, except in limited circumstances, employees have no right to use their employer’s email system for union organizing or other activity protected by the National Labor Relations Act.