Listen to this post

With special thanks to our data privacy colleague Helena Engfeldt for her contributions.

 On February 17, 2022, California Senator Bob Wieckowski introduced a bill (SB 1189) that would add protections for biometric information and establish a private right of action permitting individuals to allege a violation of the law and bring a civil action. The legislation is similar to the Biometric Information Privacy Act in Illinois (BIPA) which is creating expensive headaches for Illinois employers. (Read about the latest BIPA developments here.) If enacted, the law will cover all employers that use biometric time-keeping systems in California. Many employers would have to navigate the law alongside other California privacy laws such as the California Consumer Privacy Act (CCPA).

Here’s what employers need to know about SB 1189:

Covered employers?

The bill would apply to any private entity regardless of size. “Private entity” is defined as an individual, partnership, corporation, limited liability company, association, or similar group, however organized.

How does the bill define biometric information?
  • A person’s physiological, biological, or behavioral characteristics, including information pertaining to an individual’s deoxyribonucleic acid (DNA), that can be used or is intended to be used, singly or in combination with each other or with other identifying data, to establish individual identity;
  • It includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.

Continue Reading Biometric Protections May Be Coming to California Soon | Employers Should Get Ahead Now

Listen to this post

As the COVID-19 Omicron wave recedes and the desire to get back to a pre-pandemic “normal” is stronger than ever, scores of states have either lifted mask mandates or have set a date for lifting them. But what should employers take into account before allowing employees to toss masks aside?

In this Quick Chat video, Baker McKenzie’s Labor and Employment lawyers discuss key considerations for employers before dropping mask mandates in the workplace.

Click here to watch the video.

Listen to this post

Baker McKenzie’s Mind the Gap report outlines the main barriers to I&D success and key actions that companies can take to further develop their I&D programs. In this episode of TMT Talk, Kate Alexander, Julia Wilson, and Paul Evans focus on the insights from a survey of 900 employment and I&D leaders, looking at the most relevant issues to the TMT sector. Our lawyers highlight the key I&D challenges that the tech industry is facing and give their perspectives on the priorities that these companies need to keep in mind as they build strategies and strengthen their I&D initiatives.

Please click here for the podcast.

Listen to this post

President Biden is expected to sign into law landmark #MeToo legislation, which allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” amends the Federal Arbitration Act (FAA), by narrowing its scope and applicability. The bill’s passage had bipartisan support in both the House and the Senate.

Historically, some employers have implemented arbitration programs that require both the employer and its employees to arbitrate most or all types of employment claims, including claims alleging sexual harassment or sexual assault. Largely in response to the #MeToo movement, which began in late 2017, some states passed laws designed to prohibit or restrict employers from requiring employees to arbitrate sexual harassment or sexual assault claims. For example, in New York, employers are prohibited from requiring the arbitration of sexual harassment claims except where inconsistent with federal law. New York’s prohibition on mandatory arbitration in relation to sexual harassment claims went into effect on July 11, 2018, and it has applied to contracts entered into on or after that date. New Jersey and California have enacted similar laws. New Jersey’s law prohibits any provision of an arbitration agreement that waives a substantive or procedural right or remedy relating to employment discrimination, harassment, and retaliation claims. This law applies to all contracts and agreements entered into, renewed, modified, or amended on or after March 18, 2019. Further, on October 10, 2019, California enacted a law, which prohibits employers from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code.  California’s law applies only to agreements dated January 1, 2020 or after. However, courts have found these statutes to be pre-empted by the FAA.

On February 7, 2022, the U.S. House of Representatives overwhelmingly passed H.R. 4445, 335 to 97. Shortly thereafter, on February 10, 2022, the bill passed the Senate in an unrecorded voice vote.

Continue Reading Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration

Listen to this post

Actions under California’s Private Attorneys General Act (PAGA) have long plagued employers, both large and small, but that all may change this year.

What is PAGA?

PAGA, enacted in 2004, permits a single employee to stand in the shoes of the state’s Attorney General and file suit on behalf of other “aggrieved” employees to recover penalties for California Labor Code violations. The potential recovery against employers can be substantial, with default penalties calculated as $100 “for each aggrieved employee per pay period for the initial violation,” and $200 per aggrieved employer per pay period for “each subsequent violation.” As such, potential PAGA awards commonly reach millions of dollars against small employers, and tens of millions against large employers, just for simple administrative oversights.

In addition to the potential for steep penalties, several California court decisions have expanded the reach of PAGA over the years. In 2009, the California Supreme Court held that employees bringing actions under PAGA need not comply with the strict procedural rules governing class actions. See Arias v. Superior Court, 46 Cal. 4th 969 (2009). Then, in 2014, the California Supreme Court held that employees could not waive their right to bring PAGA claims in court, paving the way for an increase in PAGA litigation. See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014).

Recently, California courts have provided some limits to the expansion of PAGA. In 2021, the California Court of Appeals provided a potential “manageability” defense for employers.  Specifically, in Wesson v. Staples The Office Superstore, LLC, the Court of Appeals held that trial courts have the discretion to strike claims for penalties under PAGA if the claims will be unmanageable due to individualized issues at trial. See 68 Cal. App. 5th 746 (2021).

Is there an end in sight?

However, the fate of PAGA may rest in the hands of California voters this year. In December 2021, California’s Secretary of State approved the distribution of a petition to put an initiative on the 2022 ballot called “the California Fair Pay and Accountability Act.” The California Fair Pay and Accountability Act aims to essentially repeal PAGA, and replace it with an alternative framework for the enforcement of labor laws.

Continue Reading California Employers: An End To California’s Private Attorneys General Act (PAGA)?

Listen to this post

As the Omicron wave recedes, a raft of states have announced plans to lift their mask mandates.

In the past few days alone, California, Connecticut, Delaware, Illinois, Massachusetts, Nevada, New Jersey, New York, Oregon, and Rhode Island have announced changes to their face covering rules. And if the number of Omicron cases continues to dwindle as expected–and remain low–more states are sure to follow.

We highlight key changes in California, Illinois, and New York below, and touch on some points employers should consider before tossing masks aside in the workplace.

California

California’s Department of Public Health announced it will let its Omicron-modified indoor mask mandate expire on Tuesday, February 15.  Beginning Wednesday, February 16, vaccinated individuals will be allowed to go maskless in most indoor public settings, unless a more restrictive local order remains in place.  Either way, the state’s pre-Omicron guidance will remain in effect, which means unvaccinated individuals must still wear masks in indoor public settings and workplaces.  Workplaces also must continue to follow the COVID-19 prevention standards set by Cal/OSHA.

Illinois

Illinois Governor Pritzker announced the state will lift its indoor mask requirement starting Monday, February 28.  With the fastest rate of decline in hospital metrics since the pandemic began, Illinoisans will soon be able to go maskless indoors in most instances.  However, masks will still be required in schools, health care facilities, prisons, and other designated settings.

New York

New York Governor Hochul announced an end to the state’s indoor mask-or-vaccine requirement starting Thursday, February 10.  Pointing to plummeting case counts and hospitalizations, Governor Hochul said it is time to let counties, cities, and businesses make their own decisions.  But not all mask requirements have been lifted. At the state level, masks are still required in schools, health care facilities, nursing homes, correctional facilities, public transit hubs, and some other specific settings.

What does this mean for employers?

Before employers allow their employees to show their faces at the office, employers should take these considerations into account.

  • While some states may be dropping mask mandates, both the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) still recommend face coverings  for unvaccinated individuals. Employers are still required to provide workers with a safe and healthful workplace under OSHA’s General Duty clause (Section 5(a)(1)), and with the CDC not yet endorsing the lifting of mask mandates, the jury’s still out on whether a “safe and healthful” workplace continues to include masks. Some states, including Mississippi and Nevada, have conditioned their liability shield law protections on employers following both guidance and requirements for COVID-19, so complying with CDC / OSHA guidance may be required for a company to take advantage of COVID-19 liability shield laws.  And potential exposure for third party or employee injury claims can increase if a company does not follow CDC / OSHA guidance, even when that guidance is not mandatory. Therefore, even in jurisdictions which no longer require indoor masks, employers may wish to consider CDC and OSHA guidance as part of their return-to-office plans (subject to local restrictions).
  • Federal contractors should remain mindful of Executive Order 14042 (EO) and the Safer Federal Workforce Task Force Guidance (Guidance) (which we blogged about here) requiring all federal contractors to ensure that all covered contractor employees are fully vaccinated for COVID-19 (unless the employee is legally entitled to a disability, medical, or religious accommodation). The Guidance also includes masking, distancing, travel and quarantine rules. While the EO’s vaccine mandate has been blocked nationwide by a Georgia federal district court, that court stated on January 21 that it did not block the Guidance’s other components–including its masking rules. On the other hand, injunctions against the EO issued in other courts, such as in Missouri and Kentucky, have not been clarified, making it difficult to determine if those injunctions bar enforcement of all of the EO’s requirements, or just the vaccine mandate. And an injunction issued by a Florida court covering all contracts within Florida bars all aspects of the Guidance. The EO remains subject to appeal in various appellate districts, and any one of those courts could determine that the federal government does not have congressional authority under the applicable federal procurement statute to require masks (or testing or distancing) in workplaces. Bottom line: the current landscape of the federal contractor EO is patchwork, but employees in some covered contractor workplaces are now required to wear a mask – even if state/local law doesn’t require it.
  • As always, employers should keep in mind that local county or city mandates may still apply. Case in point: California’s Santa Clara County has announced it will not join the state in lifting its indoor mask mandate. Los Angeles County also will keep its indoor mask mandate in place until the county’s level of transmission stays at or below the “moderate” level as defined by the CDC for two straight weeks and there are no new variants of concern circulating in the community. The CDC defines moderate transmission to be a cumulative, seven-day new case rate of less than 50 per 100,000 residents. As of today, the CDC’s website shows LA County as having a weekly average of 459 cases per 100,000 residents, a 53% reduction from the week before. If case rates continue to drop, LA County could lift its mask mandate as early as March. Elsewhere, though the state of Pennsylvania has no current mask mandate, Philadelphia city officials have reportedly said that Philadelphia’s mask mandate could remain for months. And even where counties have announced that they will lift mask mandates, those easing of restrictions may come with other requirements such as proof of vaccination and boosters.
  • Employers should also watch out for other, non-mask-related COVID-19 requirements that may still apply. Word on the street is that Chicago will likely lift its mask mandate at the end of February along with Illinois, and it has been reported that Chicago’s proof of vaccination mandate (requiring employers to determine the vaccination status of each employee and require COVID-19 testing for those who are not fully vaccinated) could also be lifted by the end of the month–but only if a decline in COVID metrics allows.
  • One good way to stay on top of all of the quickly-changing developments: make it a habit to check in with our regularly-updated 50-State Tracker, which provides key recent developments in the 50 states plus Washington, D.C., identifies and links to state-wide orders and guidance important for reopening, and includes a “What’s Open“ table for each jurisdiction highlighting the reopening status in the office, manufacturing, retail and bars/restaurants sectors.

For assistance with mask mandates, reopening plans, and other employment matters, contact your Baker McKenzie employment attorney.

Listen to this post

Beyond chocolate and conversation hearts, many employers are looking to seriously woo employees this Valentine’s Day, and throughout the year. In fact, for most companies, retaining and attracting the best talent in today’s fierce labor market is a top priority in 2022.

The Great Resignation (aka the “Big Quit”) is in full effect. According to a Bureau of Labor Statistics (BLS) report released January 4, 2022, a record 4.5 million Americans left their jobs in November, with the number of private sector quits (not government or farm employees) hitting 4.3 million-and approximately 20 million people quit their jobs in the second half of 2021. And, there are just 0.62 unemployed job seekers for each available job, according to another BLS report. The forecast: employees are likely to continue to have substantial bargaining power in 2022. So employers who want to hold onto the great employees they have-and perhaps take their shot at hiring more- may need to look for creative ways to up the ante this year.

Here are five things employers are doing to retain and hire the best of the best talent in 2022.

  1. Embracing remote work–because it allows for the flexibility some employees are demanding

Remote work was indispensable for many in the early pandemic. Now, having the option to work remotely-at least some of the time-is becoming an expectation. According to a survey of 209,000 people in 190 countries by BCG, 89% of people expect their jobs to be partly remote after the pandemic ends. Hybrid work is now a norm for many employers as they pivot to navigate the ebb and flow of COVID variants, allowing for the flexibility required by the pandemic and meeting employee desires. According to Forbes, in a recent survey of US workers who can work remotely, 74% would prefer to spend at least one day in an office environment post-COVID-19, with 30% looking to work from a space outside the home two or three days per week. Digital nomad visas-which allow employees to work in a different country after an application and a fee-are another lure for some employees who can successfully work away from the office.

What does this mean for employers? In industries and for positions where working remotely is a viable option, employers who don’t offer employees the ability to work remotely-at least part of the week-may see employees jump ship to employers who do. In one report published by Owl Labs, companies that provide the option for remote work have 25% lower turnover than companies that don’t.

But remote work isn’t as easy as just telling employees they can work from home-or wherever they want.

Employers must consider a myriad of employment law issues before crafting any type of remote work policy, including:

  • How employers will define “remote” for their workforce–i.e. temporary “short stints,” permanent remote work, hybrid work (working some days from home and others in the office), or some combination of these. And, employers must decide whether employees will be permitted to work remotely only from home, or remotely from anywhere.
  • “Guardrails” or boundaries for the workforce. Often, this is based on factors such as whether the company already has a legal presence in the subject jurisdiction and ensuring employees can remain subject to company rules and expectations in the jurisdiction from which the employee is requesting to remotely work. Other factors, such as head count triggers for application of paid sick leave laws, must also be taken into consideration.
  • Designing an application process with established criteria. Where used, an application process should cover details such as which job positions can be performed remotely, eligible locations, whether a justification is required, and the objective criteria for accepting / rejecting applications. Decision-makers must be trained on applying the criteria objectively.
  • Developing policies to support the remote model, including salary/cost of living adjustments, how necessary equipment will be provided and whether certain costs will be reimbursed, how the company will track hours/overtime/mandatory rest breaks, necessary steps to mitigate increased risks of misappropriation of confidential information and trade secrets, and revising the business travel policy as necessary to apply to remote workers.
  • Providing employees with individualized remote work agreements, setting forth important information such as the effective date of the arrangement, expected hours of work, use of equipment, reimbursement/stipends, insurance requirements, and compensation. Agreements should also confirm the work location (to document the employee’s representation of the jurisdiction in which they are working and paying taxes) and protect the company’s right to recall employees to an onsite location.
  • Training managers and supervisors on the importance of treating all employees equally, whether they are in the office daily with substantial “face time,” or almost never in the office with only remote meeting “face time,” to avoid discrimination claims.

However employers decide, any type of remote work program raises a plethora of compliance issues-including employment law as mentioned above, as well as benefits and compensation, tax, privacy, and corporate law issues-all of which change from jurisdiction to jurisdiction. As employers design and implement remote work programs, they should work with counsel to stay compliant.

Continue Reading This Valentine’s Day Embrace 5 Strategies to Show Employees Some Love in a Competitive Talent Market

Listen to this post

Special thanks to Joe Ward, Jacob Kaplan, Christine Streatfeild, Alexander Davis, Sara Pitt, and Erin Shields.

Late last year, after a month-long trial, a Baker McKenzie team secured a complete defense verdict in favor of our client MedMen and its two co-founders. The trial was the culmination of three years of intense litigation. The result was publicized in Law360, among other outlets.

In this unique three-part webinar series, members of Baker McKenzie’s North America Trial Team will provide insight surrounding this litigation win and the steps taken to achieve it, from inception to defense verdict. Each of these one-hour webinars, moderated by Employment Litigation attorney Bill Dugan, will qualify for CLE credit.

Part 1: Investigation / Identifying Key Fact Issues, Witnesses and Theme
Wednesday, February 23
Noon – 1pm, CT
Click here to register.

Part 2: Discovery / Experts – Shaping for Trial
Wednesday, March 16
Noon – 1pm, CT
Click here to register.

Part 3: Presenting a Dynamic Case at Trial 
Thursday, April 7
Noon – 1pm, CT
Click here to register.

Listen to this post

On February 9, California Governor Gavin Newsom signed legislation (Senate Bill 114) providing up to two additional weeks of paid time off if an employee is sick with COVID-19, or if they have to take care of a family member who contracts the disease. The law takes effect immediately and is retroactive to January 1, 2022, but an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) does not begin until 10 days after the governor signs: February 19, 2022. Leave is available through September 30, 2022.

The law is similar to legislation that expired in September last year.

What kinds of employers are covered?

Small businesses are exempt. The new law only applies to businesses with 26 employees or more.

Who are covered employees?

Covered employees are those unable to work or telework due to certain reasons related to COVID-19, including:

Continue Reading California Revives Supplemental Paid Sick Leave Creating Immediate Obligations for Employers | Everything You Need to Know

Listen to this post

Wary of wage and hour class actions, many employers have been grappling with whether and how to compensate employees for activities related to COVID-19. After nearly two years of guessing, on January 20, 2022, the US Department of Labor (DOL) posted Fact Sheet #84, “Compensability of Time Spent Undergoing COVID-19 Health Screenings, Testing, and Vaccinations Under the Fair Labor Standards Act (FLSA),” on its website. The next day, and with no explanation, Fact Sheet #84 disappeared.

Before it disappeared, Fact Sheet #84 addressed the compensability of time spent undergoing those COVID-19 activities with reference to the Occupational Safety and Health Administration’s COVID-19 Vaccine and Testing Emergency Temporary Standard (the OSHA ETS). Given that the OSHA ETS had been stayed just a week earlier by the US Supreme Court and then was subsequently withdrawn by OSHA on January 26, Fact Sheet #84’s sudden disappearance is perhaps not surprising. Nevertheless, employers should keep their eyes peeled for an updated Fact Sheet #84 that addresses compensability of testing and vaccination time without references to the OSHA ETS, especially since the advice in the now withdrawn Fact Sheet #84 is in line with other prior DOL advice on compensable time for employer-required testing and medical procedures under the FLSA.

What Fact Sheet #84 Said Before It Was Withdrawn

The guidance in Fact Sheet #84 distinguished between testing and vaccination that occurs during regular work hours and after regular hours:

Activities that occur during normal working hours

  • Under the FLSA, employer-required activities during normal working hours are compensable, unless the activity falls within one of the exceptions stated in 29 C.F.R. Part 785 (e.g., bona fide meal breaks and off-duty time).
  • Employees must be paid for time they spend going to, waiting for, and receiving medical attention required by the employer or on the employer’s premises during normal working hours-including COVID-19 related medical attention. Therefore, if an employer requires an employee to engage in COVID-19 activities (such as receiving a COVID-19 vaccine dose, taking a COVID-19 test, or undergoing a COVID-19 health screening or temperature check) during the employee’s normal working hours, the time is compensable time-regardless of where the activity occurs.

Continue Reading Compensability of COVID-related Activities | The DOL May Have Weighed In to Help Employers Avoid Class Actions