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A potential amendment to California’s AB 5 law is sitting on Governor Newsom’s desk. If enacted, the amendment will allow certain professions to be classified as independent contractors rather than employees, notwithstanding AB 5’s presumption of employment status. On August 31, the California legislature sent AB 2257 to Governor Newsom for his review and signature. Supporters of the bill expect Newsom to sign it into law next month, especially given AB 5’s perceived negative impact on the “gig” economy during the pandemic. If signed by the governor, the law will take effect immediately.

By way of brief reminder, AB 5 established a 3-part test, known as the “ABC” test, that is used to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission. Under the ABC test, a person providing labor or services for remuneration is considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business. This broad test places most workers in the employee classification. AB 5, however, enumerated a few limited exemptions for specified occupations and business relationships from the application of the ABC test, providing that the exempt relationships are governed by the pre-AB 5 multi-factor test set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations. (For more detail on AB 5, click here.)

AB 2257 will modify some of the current exceptions to AB 5, and create new exceptions to AB 5’s presumption that workers are employees. A close read of the bill’s text is necessary given the proposed amendments’ nuances and sometimes conflicting detail.  We outline below some of the major changes contemplated by AB 2257, but if your business potentially falls into one of the enumerated exceptions, we strongly recommend consulting with employment counsel given the complexities involved.

New Exceptions

If enacted into law, AB 2257 will allow the following professionals to be classified as independent contractors in California if they satisfy the Borello standard.

Continue Reading Big Changes Coming To California’s Landmark Independent Contractor Law? Sort of.

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We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants).

In addition, the Tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Alabama, Louisiana, New Mexico, Oklahoma, Rhode Island, South Carolina, Tennessee and Wyoming extended their emergency declaration orders and/or the duration of the current phase of their reopening plans.
  • California issued a new reopening plan, the Blueprint for a Safer Economy, that becomes effective August 31, 2020. Each county in California is assigned to one of four tiers, each with different reopening guidelines, based on its rate of new cases and positivity. Data is reviewed weekly and tiers are updated on Tuesdays. Similarly, the Arizona Department of Health Services now requires county-specific public health benchmarks to be met in order for certain businesses to reopen.
  • The Governor of Michigan issued a new order entitled “Protecting workers who stay home, stay safe when they or their close contacts are sick” that replaces an earlier order of the same title, which prohibits employers from discharging, disciplining or retaliating against employees who stay home. The new order is intended to clarify when a worker has the principle symptoms of COVID-19 so that workers who have a known medical or physical condition causing their symptoms need not stay home.
  • The Governors of Connecticut, New Jersey and New York modified their tri-state COVID-19 travel quarantine list by deleting five states (Alaska, Arizona, Delaware, Maryland and Montana). This is the first time in eight weeks that a state or territory has not been added to the list. The tri-state list currently includes 31 states and territories.
  • The Governor of Hawaii issued a new order requiring individuals on Oʻahu to stay at home and work from home for two weeks. Exceptions include certain essential activities, and work that provides essential business and government services or essential public infrastructure construction, including housing.

For more information, please contact your Baker McKenzie attorney.

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We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants).

In addition, the Tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Colorado, Hawaii, Iowa, Nevada and Utah extended their emergency declaration orders and/or the duration of the current phase of their reopening plans.
  • The Governor of Nevada formally adopted a supplement to the State’s reopening plan, which outlines the State’s transition to a long-term mitigation strategy moving forward, and created a Mitigation and Management Task Force to work with local governments and take action on county-specific plans to mitigate the spread of COVID-19.
  • The Governors of Connecticut, New Jersey and New York modified their tri-state COVID-19 travel quarantine list to add two more states (Alaska and Delaware). The tri-state list currently includes 35 jurisdictions.

For more information, please contact your Baker McKenzie attorney.

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In an increasingly digital world, many employers are looking to rely less on paper and move to electronic systems. In recent years, the concept of electronic Form I-9 completion and maintenance has become an attractive option for companies looking to achieve this goal.

The U.S. Department of Homeland Security has provided some guidance relating to electronic completion and maintenance, although the law has arguably not yet caught up to the technology.

In this article, we will provide background information on software programs that provide electronic Form I-9 completion and maintenance, review the critical protocols that must be in place for employers looking to move Form I-9s into the digital world, and provide the 10 must-answer questions for employers exploring electronic platforms for Form I-9 completion, maintenance and storage.

Click here to continue reading.

Special thanks to the authors, Melissa Allchin and Matthew Gorman.

 

This article was originally published in Law360.

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Welcome to Baker McKenzie’s new Labor & Employment video chat series for US employers, The Employer Rapport. Our lawyers will provide quick, practical tips on today’s most pressing issues for US employers navigating the new normal. The videos complement our blog, The Employer Report, which provides written legal updates and practical insights about the latest labor and employment issues affecting US multinationals, at both the domestic and global level.

 

This week’s chat is on political expression in the workplace. With the upcoming election and the historic Black Lives Matter movement, our collective discourse is heating up and getting more than a bit divisive. So how are employers to navigate what feels like a legal landmine? What are the best ways to keep political polarization from seeping into the workplace?

 

Please click below to watch this week’s video chat:

Navigating Political Speech in the Workplace

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We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants).

In addition, the Tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

  • The Governors of Georgia, Kentucky, Mississippi, Montana, South Carolina, Vermont and Wyoming extended their emergency declaration orders and/or the duration of the current phase of their reopening plans.
  • The Governors of Arizona and Utah announced new guidelines for the next phase of their respective state reopening plans.
  • The Governor of New Hampshire issued an order that requires face coverings at scheduled gatherings of more than 100 individuals.
  • The Governors of Connecticut, New Jersey and New York modified their tri-state COVID-19 travel quarantine list to add two more states (Hawaii and South Dakota) and one territory (US Virgin Islands), and to remove five states (Alaska, New Mexico, Ohio, Rhode Island and Washington). The tri-state list currently includes 33 jurisdictions.

 

For more information, please contact your Baker McKenzie attorney.

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The latest wrinkle for employers managing employees in the time of COVID-19 relates to employee travel. Many employers are coming to us asking how to navigate the patchwork of US state and local quarantine restrictions and / or recommendations for persons who travel to hotspots and then have to quarantine when they return home.

Questions abound, including whether employers can just test employees for COVID-19 to avoid a 14-day quarantine period, and whether employers have to pay employees to follow a quarantine order when their employees voluntarily travel to a hotspot location. We provide background and answer those questions below.

Continue Reading Navigating Employee Travel in a Maze of State and Local Quarantine Orders and Travel Advisories

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We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.

Baker McKenzie has a team in place that has been advising clients real-time on these most critical issues since the first orders were enacted. We are pleased to provide this Tracker, which identifies the relevant state-wide shelter-in-place orders and their related expiration dates, as well as the applicable state-wide reopening plans, in each of the 50 United States plus Washington, D.C. The “What’s Open” table on each page highlights the reopening status of four major sectors (office, manufacturing, retail and bars/restaurants). In addition, the Tracker includes links to the relevant quarantine requirements or recommendations for incoming travelers in each state plus Washington, D.C.

Please see HERE. This is updated weekly.

For your convenience, here is a summary of the major updates from around the country:

    • The Governors of Colorado, Maine, New Hampshire, North Carolina and Utah extended their emergency declaration orders and/or the duration of the current phase of their reopening plans.
    • The Governor of Mississippi issued a new order requiring face masks to be worn in certain indoor and public spaces.
    • Alaska changed its travel protocols effective August 11, 2020, to, among other things, require that all incoming travelers must test within 72 hours before departure to Alaska and to remove the 14-day quarantine option for non-resident travelers. Hawaii reinstated effective August 11, 2020, a mandatory 14-day quarantine for persons arriving to Kauai, Hawaii Island or Maui, and traveling between these islands. New Mexico, on the other hand, expanded the categories of persons who do not need to quarantine when arriving in New Mexico
    • No states proceeded to the next phase of their reopening plans.

For more information, please contact your Baker McKenzie attorney.

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America’s political divisions seem to be deepening. And, what’s troubling for employers is that our polarized political climate appears to be affecting employee productivity significantly, according to research by Gartner. According to a nationwide survey in February, 47% of employees reported that debate surrounding the 2020 elections is impacting their ability to get work done. About 33% of the employees surveyed said they now spend more time getting political news while at work. Perhaps more worrisome, 36% of those surveyed said it has led them to avoid talking to or working with a co-worker because of his or her political views.

So, how can employers attempt to keep political polarization from seeping into the workplace? Here are some tips to help achieve that goal:

Practical Tips:

  • Establish office policies and hold training sessions on showing respect to co-workers, but don’t focus specifically on politics or social movements, which can have the effect of fueling conflict. Companies should strive for inclusiveness with respect to all employees.
  • Ensure that dress code policies prohibit employees from displaying political buttons, logos, and other political speech in a uniform and non-discriminatory manner (including prohibiting items displaying support for a political party or cause).
  • Adopt and enforce non-discriminatory rules prohibiting non-work-related political activities in the workplace. However, be mindful of political activities with a sufficient connection to employment-related issues that may be protected by the National Labor Relations Act or applicable state laws. The line is often difficult to discern and close calls should be investigated before action is taken. Non-supervisory employees do have the right to engage in “protected, concerted activity” under the National Labor Relations Act, which allows them to take action such as:
    • Talking with co-workers about wages, benefits, or other working conditions;
    • Participating in a concerted refusal to work in unsafe conditions; and
    • Joining with co-workers to talk directly to management, a government agency, or the media about problems in the workplace.
  • Create, implement, and enforce uniform non-solicitation policies during working times, and in working areas.
  • Limit use of company equipment and resources, including work computers, photocopiers, email, and bulletin boards for non-work related purposes.
    • Reiterate the company’s zero tolerance policy for discrimination, harassment or retaliation in the workplace. Inform employees that while they are entitled to their beliefs, and are entitled to discuss them privately with others, they are not entitled to discriminate against or harass co-workers.

 

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Many schools across the US are not welcoming students back for full-time in-person learning in the fall. On August 5, 2020, after Chicago Public Schools announced it would begin the academic year remotely in September, New York City became the last remaining major school system in the country to even try to offer in-person classes this fall. Proposed plans for schools that aren’t fully reopening range from full remote learning to hybrid models, where students are in school only half a day or several days a week coupled with a remote learning component from home. Either way, employers are likely to find themselves inundated with requests from parents of school-age children for continued work from home arrangements or other work-schedule flexibility. In our Q&A below, we have highlighted issues employers may want to keep in mind as employees with school-age children try to navigate a school year with its own “novel” aspects.

1.  Are employers legally obligated to provide any sort of leave for employees who have to stay home with their children if schools don’t fully reopen?

It depends. If the employer is a “covered employer” under the federal Families First Coronavirus Response Act (FFCRA), employees may be eligible for paid leave under the FFCRA. The FFCRA was enacted to provide employees with COVID-19 related paid leave. Covered employers under the FFCRA (generally, private sector employers who have fewer than 500 employees at the time the leave request is made) are required to provide eligible employees with partially paid child care leave for certain COVID-19-related reasons, including if the child’s school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.

Does virtual learning count as a “closed or unavailable” school for purposes of the FFCRA? Though the DOL guidance and FFCRA regulations have not spoken directly on this topic, the DOL’s early Q&A guidance on the FFCRA indicates that a school is “closed” for purposes of EPSLA or EFMLEA leave when the “physical location where [the] child received instruction or care is now closed.” The focus on “physical location” signals that if the school building is closed to students and students are required to learn remotely, the school is “closed” for purposes of the FFCRA.

The FFCRA imposes two federal leave obligations on employers – the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EFMLEA).

  • Under the EPSLA:
    • An eligible employee may take up to two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee is unable to work or telework for reasons including to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19. Pay is capped at $200 per day and $2,000 in the aggregate.
  • Under the EFMLEA:
    • An eligible employee may take up to twelve weeks of “expanded” FMLA leave when unable to work or telework due to a need for leave to care for a child whose school, place of care or child care provider is closed or unavailable for reasons related to COVID-19.
    • The first two weeks of EFMLEA leave are unpaid. An eligible employee may use paid sick leave under the EPSLA or other accrued paid leave under the employer’s leave policies to receive pay for those two weeks.
    • An eligible employee may take up to an additional 10 weeks of paid EFMLEA leave at two-thirds the employee’s regular rate of pay, based on the number of hours the employee would be normally scheduled to work those days. Pay is capped at $200 per day and $10,000 in the aggregate.

In addition, state and local leave laws may apply, many of which either provide additional leave or state that providing care for a child whose school is closed or unavailable for COVID-19 reasons is a protected reason for an employee to take leave.

Continue Reading Back to School or Back to Home? Handling Leave Requests from Employees with School-Age Children