On June 23, the San Francisco Board of Supervisors voted to approve “right to reemployment” legislation that requires large employers to first offer laid-off workers their old jobs back before offering employment to new applicants (“Ordinance”). It will become effective immediately upon Mayor London Breed’s signature and will expire upon the 61st day following enactment unless extended.

Advocates of the Ordinance argued the requirement is necessary to ensure employers don’t use the pandemic as an opportunity to simply replace old workers with new employees who are younger and less expensive. Organizations lobbying against the Ordinance argued that it is overly burdensome; violates core constitutional principles; runs counter to several federal and state laws; and is extremely vulnerable to abuse. Similar legislation has surfaced in Los Angeles County as well. More on that to come.

Covered Employers

“Covered employers” are defined as for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020.


Continue Reading San Francisco Provides Temporary Right to Reemployment Following Layoff Due to COVID-19 Pandemic

Due to the pandemic, employees in the US are working from home in unprecedented numbers. Some, particularly in tech, may be working from home through the end of the year, or even permanently! While working from home raises a myriad of issues (e.g., data privacy and security, health and safety, employee engagement, and more), this post focuses on expense reimbursements related to telecommuting. The trickiest areas are cell phones and internet given that employees are now working from home because they cannot go into the office, as opposed to perhaps at their convenience.

Reimbursement Obligations

There is no federal requirement to reimburse employees for business-related expenses. However, several states (including California, the District of Columbia, Illinois, Iowa, Massachusetts, Montana and New York) have legislation requiring reimbursement for necessary businesses expenses. For example, California Labor Code Section 2802(a) requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….” Failing to reimburse employees can lead to class or collective actions and quickly become incredibly burdensome for employers. Under California law, an employer that does not reimburse employees risks a lawsuit where the damages will include not just the unreimbursed expenses but the attorney’s fees incurred by the employee seeking reimbursement. The employee can also ask the Labor Commissioner to cite the employer or anyone acting on the employer’s behalf under Labor Code Section 2802(d). Where the practice is widespread (or just alleged to be) the claims can be brought on a class-wide basis.


Continue Reading Reimbursement Refresher: Cell Phone and Internet Expenses Related to Telecommuting in the US

Recently, Southwest Airlines won a second major victory when Northern District of Illinois Judge Seeger granted its motion to dismiss claims brought under Illinois’ unique Biometric Information Privacy Act (“BIPA”). Crooms v. Southwest Airlines Co., Case No. 19-cv-2149.

Plaintiffs alleged Southwest violated BIPA by requiring them to scan their fingers when clocking in and out of work without giving them the written notice or receiving their consent as required by BIPA. When initially employed, three of the plaintiffs were represented by the Transportation Workers Union of America, AFL-CIO Local 555 (“TWU”) and were covered by a collective bargaining agreement (“CBA”). The CBAs at issue provided Southwest had the “right to manage and direct the work force” and included a mandatory four-step grievance and arbitration procedure for resolution of disputes. Plaintiffs were later promoted to Ramp Supervisors, a non-union position and agreed to comply with Southwest’s Alternative Dispute Resolution (“ADR”) Program.  The fourth named plaintiff was never covered by a CBA but was always a party to the ADR Program.


Continue Reading “This Case Does Not Belong In Federal Court” — Southwest Secures Dismissal of Illinois Biometric Lawsuit

As Companies develop their reopening playbook, we know that many are considering instituting temperature screening procedures either as a precaution or because local Orders may require it. Here’s the *tl;dr* on temp checks (it’s okay if you need to look that up . . . some of us did too):

Temperature checks

The way we work has been permanently transformed by the rapid deployment of a largely remote workforce during the shelter-in-place. Threats to companies’ most valuable confidential data have not merely increased — an entirely new set of legal and technical risks to trade secrets have emerged over the last 90 days that are fundamentally different

On April 29, public health officials in six Bay Area counties (Alameda, Contra Costa, Marin, San Francisco, Santa Clara) and the city of Berkeley released new health orders extending mandates to shelter in place through May 31, while relaxing restrictions around some outdoor businesses and recreation activities. The new Orders will take effect May 4, the day existing shelter-in-place mandates would have expired. (We previously discussed the local Orders here and here.)

Continue Reading Bay Area’s Shelter-In-Place Orders Modified and Extended to May 31

The COVID-19 pandemic raises challenging issues for employers, particularly those that have multiple locations, provide a variety of services, and employ a global workforce that may travel routinely for business.

With increasing quarantine and other lock-down requirements appearing across the globe, what should employers be doing now to support the health and safety of their workforces?

An employer’s first priority is to protect the health and safety of its workforce. Recognize that this is unlikely to be a one-time occurrence. Being prepared now will allow employers to iterate in the future.

(1) Understand employer obligations in each affected jurisdiction (which will change).

  • Review applicable government health alerts and requirements for reporting.
  • Review local laws on employee privacy, association, potential for discrimination and leave/benefit/wage & hour entitlements. Remember that the balance between privacy and public health is achieved differently in different countries, but as viruses spread, those restrictions are often relaxed. For instance, primarily due to data privacy laws, employers in most of the EU generally may not notify health authorities that an employee has been infected.
  • Coordinate internally to develop employee communications and plans. Frequent communications with employees and their families is critical. Keeping in contact with official or governmental bodies such as the US State Department or the British Foreign and Commonwealth Office (FCO) is essential to ensure the latest updates are available and to ensure employees are aware of any national contingency plans.


Continue Reading Pandemic Pause — Are you taking the right actions to protect your workplace?

With signs that the virus is peaking in the US, and with some state Shelter-in-Place Orders scheduled to be lifted in the coming weeks, employers are turning their attention to planning for how best to bring employees back to work.

As with the initial outbreak, US employers can look to other corners of the world

With our thanks to Chris Guldberg for this post. 

The financial fallout from the outbreak of COVID-19 has unfortunately forced employers to turn to layoffs and furloughs. Many employers facing these decisions are looking for cost effective ways to mitigate the financial impact on affected employees. A supplemental unemployment benefit plan (“SUB Plan”) may be one way to assist employees while generating some cost savings for the company.

A SUB Plan is a unique type of severance benefit plan that permits employers to supplement state unemployment benefits on an employment tax-favored basis. The employer can make up the difference between an employee’s normal wages and state unemployment benefits and, unlike traditional severance, payments under a SUB Plan are treated as a benefit rather than wages and are thus not subject to FICA or FUTA for the employer or employee.


Continue Reading An Alternative to Traditional Severance: SUB Plans

The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, first published in 2009, to specifically address the COVID-19 pandemic. The updated guidance is here.

Significantly, the EEOC confirms that the COVID-19 pandemic meets the “direct threat” standard for employee medical examinations and disability