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With special thanks to Teresa Michaud and Sara Pitt for contributing.

Revised Health Orders were handed down yesterday across the Bay Area (Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Berkeley Counties), intended to “clarify, strengthen, and extend” the terms of the prior shelter-in-place orders. Each supersedes its prior order, and provides that the county order is intended to implement more stringent county-level restrictions, to complement the “baseline statewide restrictions” set by Governor Newsom’s Executive Order. In addition, where a conflict exists between the county order and any state public health order, “the most restrictive provision controls,” unless the State Health Officer formally determines that a given provision is a public nuisance.

Under the new orders, “Essential Businesses” remain “strongly encouraged” to remain open, but should maximize the number of employees working from home, and may only require employees to work on-site if their duties cannot be performed from home.

Most importantly, the revised county orders require that businesses that include an essential component, along with non-essential components, must (to the extent feasible) scale down their operations to the essential business component only. In addition, “Essential Businesses must follow industry-specific guidance issued by the Health Officer related to COVID-19.”


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At noon today, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties extended their Shelter-In-Place Orders until at least May 1, 2020. The original Shelter-In-Place Orders were set to expire on April 7. The joint press release may be found here.

These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders now remain in effect through “at least May 1, 2020,” with the term “at least” indicating further extensions are likely.

The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of COVID-19 to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same. Information about California’s separate, state-wide Shelter-In-Place Order may be found here.

What Businesses are Covered by the Orders?


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Effective Friday, March 20, 2020, Governor Newsom imposed a California-wide Shelter-in-Place via Executive Order (“Executive Order”). This Executive Order comes on the heels of numerous shelter-in-place orders issued by individual counties and cities across the state in the past week. The Governor’s Executive Order requires all individuals living in California to stay home or at

As previously reported, effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders (“SF Bay Area Orders”).  The SF Bay Area Orders require all individuals to shelter in place in their residences and businesses to cease all activities at facilities located within

Effective Tuesday, March 17, 2020, San Francisco, Alameda, San Mateo, Santa Clara, Santa Cruz, Marin, and Contra Costa counties imposed Shelter-In-Place Orders. These Orders require all individuals ordered to shelter in place in their residences and for businesses to cease all activities at facilities located within the listed counties and with certain exceptions for: (1) “Essential Businesses” (as defined by the Orders); and (2) “Minimum Basic Operations” for businesses that do not qualify as “Essential Businesses.” The Shelter-In-Place Orders currently remain in effect through April 7. At this time, Napa, Solano, and Sonoma counties have not issued similar mandates.

The intent of the Orders is to ensure the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, and to slow the spread of Coronavirus (also known as COVID-19) to the maximum extent possible. Although each of the seven Bay Area counties issued a separate Order, the substantive terms of the Orders are the same.

What Businesses are Covered by the Orders?

All businesses with a facility in the above-listed counties, except for “Essential Businesses,” are covered by the Orders. The Orders list 21 categories of Essential Businesses, ranging from healthcare operations and hardware stores to businesses that ship or deliver goods directly to residences. Employees of Essential Businesses may perform travel to/from and related to the Essential Business. The full list of Essential Businesses may be found here:


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On February 10, 2020, United States District Judge Dolly M. Gee denied a motion for a preliminary injunction to enjoin California from enforcing Assembly Bill 5 (AB 5) against Postmates Inc. and Uber Technologies, Inc. Judge Gee concluded: “Plaintiffs have not shown serious questions going to the merits — the critical factor in determining whether to issue a preliminary injunction — and, though company plaintiffs have shown some measure of likelihood of irreparable harm, the balance of equities and the public interest weigh in favor of permitting the state to enforce this legislation.”

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On December 30, 2019, Judge Kimberly Mueller in the Eastern District of California issued a temporary restraining order that enjoined California from enforcing AB 51. AB 51 prohibits employers from requiring, as a condition of employment, employees’ waiver of any right, forum, or procedure for an alleged violation of the California Fair Employment and Housing Act or the California Labor Code. (For more on AB 51, read here).

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Baker McKenzie’s Mike Leggieri and Robin Samuel were recently interviewed on how best to avoid class arbitration in light of the US Supreme Court April 2019 Lamps Plus, Inc. v. Varela decision.

In Lamps Plus, the Supreme Court held that when an arbitration agreement is ambiguous on the availability of class arbitration, courts

Last Wednesday, the US Supreme Court issued yet another pro-employer arbitration decision.

In a 5-4 split, the Supreme Court held in Lamps Plus Inc. v. Varela that a party cannot be compelled to submit to a class arbitration (as opposed to the arbitration of individual claims) unless the arbitration agreement explicitly authorizes class proceedings in arbitration.

In doing so, the Supreme Court reiterated two key aspects of its Federal Arbitration Act jurisprudence:

  1. Arbitration is a matter of consent, not coercion; and
  2. Class arbitration is fundamentally different than the traditional individualized arbitration envisioned by the FAA.

Because, according to the majority opinion, class arbitration so fundamentally changes the nature of arbitration, a party can only be forced to litigate class claims in arbitration under the FAA if there is a contractual basis for concluding that the party agreed.


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“Rowdy” Roddy Piper famously said: “Just when they think they have the answers, I change the questions.”

California employers can relate to this feeling of uncertainty, given a recent trend of California appellate decisions that have upended established legal “answers” regarding certain employment law issues. Following last year’s decision by the California Supreme Court in Dynamex to adopt a new “ABC test” to determine employment status under the Wage Order, and the Court of Appeal’s decision in AMN Healthcare that cast doubt 33 on years of established authority regarding non-solicitation of employee provisions, the Court of Appeal in Ward v. Tilly’s, Inc. recently adopted a new standard for reporting time pay. Because disputes over reporting time pay may lead to putative class action claims, this decision is particularly important for California employers.

California is one of a few states requiring employers to pay a certain minimum amount to nonexempt employees as “reporting time” (also referred to as “show-up pay”) if the employee reports to work but does not actually work the expected number of hours. Specifically, each of California’s Industrial Welfare Commission wage orders requires employers to pay employees “reporting time pay” for each workday “an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work.”

In Ward v. Tilly’s, a divided Court of Appeal has expanded the “reporting time” obligation to situations where employees are required to contact their employer two hours before on-call shifts—even though they never actually physically report to work.


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