It’s hard to miss the uptick in litigation against high profile US companies over alleged unequal pay for female employees these days. Cases seem to hit the headlines frequently and several targeted industries include professional sports, professional services organizations, and technology companies. With equal pay protections constantly expanding, and employees often seeking class certification, in 2021, employers should be especially diligent in identifying and rectifying unjustified pay disparities.

So, if you need a New Year’s Resolution, consider undertaking a pay equity audit. This will position your company to determine, at baseline, whether any unjustified pay disparities exist, where those disparities lie and proactively take any remedial measures to help mitigate against becoming a headline. In conducting a pay equity audit, employers should pay close attention to the legal backdrop of pay equity, and how that landscape is changing.

As we head into the New Year, here are several US developments companies ought to know:

California Enacts First Employee Data Reporting Law

On September  30, California Gov. Gavin Newsom signed Senate Bill 973, Sen. Hannah-Beth Jackson’s bill relating to annual reporting of employee pay data. SB 973 requires private employers with 100 or more employees to report employee pay data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021, and annually thereafter, for specified job categories by gender, race and ethnicity. California will be the first state to require employers to submit such employee data.


Continue Reading US Pay Equity and Transparency Developments: What You Need to Know Going Into 2021

After the fastest reported increase in coronavirus cases since the start of the pandemic- with new infections doubling in the past 10 days-California Governor Newsom “sound[ed] the alarm,” announcing on November 16 that 40 counties are moving in the wrong direction under the state’s reopening plan. Twenty-eight counties moved into the state’s most restrictive purple tier under California’s Blueprint for a Safer Economy, signifying that the coronavirus is “widespread.” Now, 41 of the state’s 58 counties are purple, a stark contrast from only 13 purple tier counties last week.

Several Bay Area and Southern California counties are affected:

  • Alameda, Contra Costa, Santa Clara, Napa and Solano counties are reverting to the purple tier, while San Francisco, Marin and San Mateo counties are stepping back into the second-most restrictive red tier (indicating “substantial” virus spread).
  • Orange and Ventura counties-which improved to red in September and October, respectively-are retreating to purple, joining Los Angeles, Orange, Riverside, Ventura, Santa Barbara, and San Bernardino counties in the purple tier.

California employers and employees are already feeling the effects. Purple status severely limits indoor activity, including:

  • Restricting capacity at retail establishments and malls (open indoors at 25% capacity);
  • Moving fitness centers, family entertainment, and movie theaters to outdoor only;
  • Limiting restaurants and wineries to limited outdoor-only service;
  • Closing bars and breweries;
  • Requiring schools to remain online only; and
  • Requiring non-essential offices to work remotely.

With 94% of the state’s population now in the purple tier, talk of curfews, and restrictions being one step away from the stay-at-home orders that swept the US in March, the scaled back reopening undoubtedly will have devastating economic impacts on businesses and their employees.


Continue Reading California “Sounds the Alarm,” Stepping Back into Purple and Issuing a Travel Advisory

As the clock strikes midnight on New Year’s Eve 2020, sweeping amendments to California’s Family Rights Act (CFRA) will take effect. Both the federal Family and Medical Leave Act (FMLA) and the current version of CFRA entitle eligible employees to take up to 12 weeks of unpaid, job-protected family or medical leave during a 12-month period. This statutory leave right provides employees with time off from work for the birth, adoption or foster care placement of a child, to care for an immediate family member (spouse, child or parent) with a serious health condition, or when the employee cannot work because of a serious health condition.

Effective January 1, 2021, however, not only will the CFRA apply to more employers (covering employers with as few as five instead of the current 50 employees), but CFRA’s expanded definition of “family members” also will authorize certain employees to take a total of 24 weeks of family and medical leave, effectively doubling the currently available 12 weeks of leave available, in each 12-month period.

We highlight the key changes to the CFRA and employer considerations below.


Continue Reading Sweeping Changes to the CFRA Could Entitle Employees to Double the Leave

We are excited to invite you to our virtual Annual California Employer Update on Tuesday, December 8, 2020, from 1:00 – 2:15 PM PT.

“Quick Hits: California’s Top 10 & What You Need To Know In 2021” is designed to ensure that in-house counsel are up to speed on what changed in 2020 and prepared

As predicted, on September 30, 2020, California Governor Newsom signed SB 973 into law. SB 973 requires private employers with 100 or more employees to report pay data to the Department of Fair Employment and Housing by March 31, 2021, and by March 31 each year thereafter, for specified job categories by gender, race, and

California’s latest move on the COVID-19 front is an attempt to fill the gap left by the federal Families First Coronavirus Response Act (FFCRA) – and requires larger employers to act immediately. The FFCRA – which mandates paid sick and FMLA leave for designated COVID-19 reasons – does not apply to employers with 500 or more employees. The FFCRA also allows employers of certain health care workers and emergency responders to exclude those employees from its coverage.

On September 10, 2020, Governor Newsom closed these FFCRA loopholes for California-based employees by signing A.B. 1867 into law. The new statute takes effect immediately, and by September 20, 2020, requires employers to provide up to 80 hours of “COVID-19 supplemental paid sick leave” to the following “covered workers”:

  • California-based employees of larger employers (500 or more employees in the U.S.);
  • Specified “food sector workers” (A.B. 1867 effectively codifies Governor’s Newsom’s existing Executive Order already granting paid COVID-19 paid sick leave to these workers); and
  • Health care workers and emergency responders who were excluded from FFCRA by their employers.

A.B. 1867 does two other things:

  • It requires employers to allow employees who work in food facilities, as defined in Section 113789 of the Health and Safety Code, to wash their hands every 30 minutes and additionally as needed, and
  • It creates a new mediation pilot program under which small employers (5 to 19 employees) may request mediation through the Department of Fair Employment and Housing (DFEH) within 30 days of receiving a right to sue notice for alleged violations of the California Family Rights Act (CFRA), the state law equivalent of the FMLA.

Interestingly, nothing in A.B. 1867 expressly limits the new COVID-19 sick leave benefit to California-based employees, but California’s ability to regulate employment relationships generally stops at its borders.

A.B. 1867’s requirements are detailed below.


Continue Reading Larger Employers Must Act Quickly To Address California’s New Supplemental Paid Sick Leave Law, Including Making Changes to Paystubs Within 10 Days

On September 4, 2020, the California Legislature passed Senator Hannah-Beth Jackson’s bill relating to annual reporting of pay data (Senate Bill 973). If Governor Newsom signs the bill, as expected, SB 973 would require private employers with 100 or more employees to report pay data to the Department of Fair Employment and Housing

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.

California residents have some relief from shelter in place orders that took effect mid-March, with the state and several counties relaxing certain restrictions in early May. Despite those welcome changes, employers have much to track as they reopen businesses throughout California. A patchwork of state and local public health orders and guidelines confronts employers as

We are pleased to share our Shelter-in-Place / Reopening Tracker.

This document identifies the relevant state-wide shelter-in-place orders and their related expiration dates as well as the state-wide reopening plans, and whether local (county/municipal) orders also apply, in each of the 50 United States.

Please check back for updates throughout the pandemic.