When world economies face challenges, employment litigation claims of all types arise. In this Quick Chat video, our Labor and Employment lawyers discuss the range of trending employment-related claims and cases and share what employers can do to best position themselves to manage impending litigation.

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Review our brochure, COVID-19

In April, California Gov. Gavin Newsom signed a statewide right-to-recall law — S.B. 93 — affecting certain employers. One of the key provisions of the new law, which has not been subject to much discussion, is how it affects corporate transactions.

In this article, we discuss how this new statute that could present challenges for

On May 5, 2021, the US Department of Labor (DOL) announced the withdrawal of the previous administration’s independent contractor rule, effective May 6, 2021. The DOL has not proposed any regulatory guidance to replace the rule, leaving employers with no clear guidance on worker classification under the FLSA.

The withdrawal is no surprise. The DOL

The California Department of Industrial Relations (DIR) recently updated its “Guide to COVID-19 Related Frequently Asked Questions [FAQs]” to include wage and hour issues arising out of employer-mandated COVID-19 tests or vaccinations.

On March 4, 2021, the Department of Fair Employment and Housing (DFEH) confirmed that an employer does not violate the California Fair Employment and Housing Act (FEHA) by requiring employees to receive an FDA-approved COVID-19 vaccine so long as the employer does not discriminate against or harass employees or job applicants on the basis of protected characteristics, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against employees who engage in protected activity, such as requesting an accommodation. While this guidance arguably protects employers against FEHA claims, employers should not take the DFEH’s guidance as permission to mandate vaccines in other contexts, and it is not yet clear whether employers can safely mandate vaccines approved only under Emergency Use Authorizations by the Food and Drug Administration.

If employers can legally mandate vaccines, the question becomes whether employers must pay for the time spent being vaccinated. Now, the DIR has weighed in on employer obligations to pay for tests and vaccines when mandated by the employer.

For ease of reference, the FAQ is copied here.

    1. Is my employer required to compensate me for the time spent obtaining a COVID-19 test or vaccination?

If the employer requires an employee to obtain a COVID-19 test or vaccination (see Department of Fair Employment and Housing FAQs for guidance on the types of COVID-19 tests an employer may require and on vaccination), then the employer must pay for the time it takes for the testing or vaccination, including travel time.


Continue Reading California Requires Employers to Compensate Employees for Time Spent Obtaining a COVID-19 Test or Vaccination

The Department of Labor (DOL) has proposed to put the final nail in the coffin on two Trump era rules under the Fair Labor Standards Act (FLSA) that were favorable to employers. On March 12, 2021, the DOL’s Wage and Hour Division published in the Federal Register both a proposed rule to rescind the Trump administration’s rule on joint employer status under the FLSA and a proposed rule to withdraw the Trump administration’s rule on independent contractor status under the FLSA. In both cases, the DOL is seeking public comments for 30 days (until April 11, 2021). Neither of these proposed rules comes as a surprise to those keeping tabs on the Biden administration’s agenda, but the DOL has not proposed any new guidance, leaving employers wondering what comes next.

Continue Reading The DOL Proposes to Nix the Trump Administration’s Joint Employer and Independent Contractor Rules

The US Department of Labor is developing a new regulation on joint employment under the FLSA, a possible first step towards reversing the Trump administration’s business-friendly rule on the joint employer standard.

First Public Notice of Possible New Regulation

On February 23, the White House Office of Information and Regulatory Affairs (OIRA) posted on its

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

The federal guidance on whether to classify a worker as an employee or an independent contractor continues to shift, as the U.S. Department of Labor (DOL) issued a new proposed rule favorable for companies. If finalized, the rule may provide businesses with greater latitude to engage independent contractors.

Continue Reading New DOL Proposed Rule Makes It Easier For Companies to Engage Independent Contractors

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 August 8, 2020, a New York federal district judge struck down a significant portion of the DOL’s “joint employer” rule, meaning certain employers may be more likely to be deemed “joint employers” and exposed to liability for employee wage and hour violations under the FLSA. The “joint employer” final rule, which was issued by the DOL in January 2020, imposed a four-factor test for deciding whether employers in “vertical” employment relationships (i.e., when workers for a staffing company or other intermediary are contracted to another entity) are joint employers under the FLSA.

Continue Reading Are You A Joint Employer Now? Part of DOL’s “Joint Employer” Final Rule Struck Down