Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

Editors

turnbull_andrew_blog_150x150.png

turnbull_andrew_common_640x280.jpg

turnbull_andrew_heroretina_2700x1160.jpg

turnbull_andrew_mobileretina_750x1040.jpg

turnbull_andrew_social_600x600.jpg

Co-Chair, Global Employment and Labor Practice

Partner

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

Welcome to the MoFo ELC Blog

elcblog-header-image.jpg

Welcome to the MoFo ELC Blog

elcblog-header-image

MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislati

Announcements

Blog - Terms of Use

Blog - Cookies

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

In-depth analysis of developments and trends impacting government contracting.

Government Contract Insights Blog

Government Contract Insights

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech Blog

News and thought leadership from lawyers whoa re adding value to the legal profession and the communities we call home.

 MoFo+ Blog

MoFo+

Read our Employment Law Commentary blog for the latest insights in employment and labor law, covering issues from ADA compliance to trade secrets protection.

Employment Law Commentary

MoFo ELC | Latest Employment Law Developments and Commentary

  Linkedin

MoFo LinkedIN

ELC Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com" target="_self">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html" target="_self">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from MoFo ELC. Enter your email below to stay up-to-date.

Subscribe

Practical Answers to Employment Law Issues

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Americans with Disabilities Act (ADA)

Artificial Intelligence

Coronavirus (COVID-19)

Department of Labor (DOL)

Discrimination

EEOC

European Union

Family Medical Leave Act (FMLA)

Immigration

Intellectual Property

Leaves of Absence

Legislation

NLRB

Non-Compete

OFCCP

PAGA

Paid Sick Leave

Pay Equity

Privacy & Data Security

Reductions in force (RIFs)

Trade Secrets

Wage and Hour

Workplace Misconduct

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Andrew R. Turnbull

More

Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

On March 19, 2021, California Governor Gavin Newson signed Senate Bill 95, requiring California employers with more than 25 employees to provide their employees with Supplemental Paid Sick Leave (SPSL) for various COVID-related absences. Coverage under this new legislation is far more expansive than last year’s California COVID-19 SPSL statute, which expired on December 31, 2020.Below are the top five issues employers need to know about the 2021 COVID-19 SPSL legislation:1. Qualifying coverage expanded.Employers must grant SPSL immediately upon oral or written request if an employee is unable to work or telework for any of the following reasons:<ul><li>COVID-19 Related Self-Care. The employee is subject to a quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to self‑quarantine due to concerns related to COVID-19, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.</li><li>Vaccine Related Self-Care. The employee is attending an appointment to receive a COVID-19 vaccine or is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.</li><li>COVID-19 Family Care. The employee is caring for a family member who is subject to a quarantine or isolation order or guideline or who has been advised to self-quarantine by a health care provider due to concerns related to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable for reasons related to COVID-19 on the premises.</li></ul>While an employer cannot condition SPSL on an employee obtaining a medical certification, in some circumstances, employers may be able to request documentation before paying for SPSL if the employer has information indicating that the employee is not requesting SPSL for a valid purpose.2. The law applies retroactively.SB 95 began on March 29, 2021, but it applies retroactively to January 1, 2021. In other words, employers may have to reimburse employees for sick leave they have already taken for a qualifying reason. Employees seeking reimbursement for such leave must make an oral or written request to their employer for reimbursement. Upon request, employers must then issue payment on or before the payday for the next pay period. Any retroactive SPSL counts toward the employee’s 2021 SPSL entitlement. SB 95 remains effective through September 30, 2021.3. Full-time employees get up to 80 hours of leave, while part-time employees get leave based on their average hours worked.Employees receive 80 hours if either their employer considers them to work full time or, on average, they worked or were scheduled to work on average 40+ hours per week in the two weeks before leave is taken. The California Labor Commissioner provides guidance on calculating leave entitlements for part-time employees based on their length of service <a target="_blank" href="https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html">here</a>.The obligation to provide SPSL is in addition to other leaves already required by California law, such as paid sick leave. Additionally, COVID‑related sick leave provided pursuant to last year’s SPSL does not count toward leave amounts required in 2021 for SPSL. 4. The pay rate calculation for SPSL differs from last year’s standard.Under this new legislation, non-exempt, covered employees must be compensated at the highest of the following pay rates (subject to a cap):<ul><li>calculated in the same manner of the regular rate of pay for the workweek in which the covered employee uses COVID-19 supplemental paid sick leave, whether or not the employee actually works overtime in that workweek; </li><li>calculated by dividing the covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;</li><li>the state minimum wage; or</li><li>the local minimum wage.</li></ul>Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee under the new statute. 5. There are notice posting and wage statement requirements.Starting March 29, 2021, employers must conspicuously display in their workplaces the <a target="_blank" href="https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf">model notice</a> provided by the California Department of Industrial Relations. If employees are not frequently present at the employer’s offices, employers can send the notice via email.Like the 2020 SPSL standards, the SB 95 requires employers to list SPSL on the paystub for employees as a separate line item, separate and apart from regular California paid sick leave. Additionally, for part-time employees who do not have a regularly set schedule, employers may meet their paystub obligations by calculating SPSL available and indicating “(variable)” next to that calculation, which employers will need to update when employees request to use SPSL. The paystub related requirements are not enforceable until the employer’s next full pay period following the legislation’s effective date, March 29, 2021.Looking AheadCalifornia employers with more than 25 employees nationwide should immediately review their policies, practices, and payroll records to ensure proper implementation of and compliance with the new SPSL obligations. Because the new legislation does not preempt local ordinances, employers may also want to consider how these SPSL obligations interact with any local ordinances.

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

2017-09-08-52-40-legislation-thumb.jpg

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave 

2017-09-07-44-29-legislation-600-300x148.jpg

On March 19, 2021, California Governor Gavin Newson signed Senate Bill 95, requiring California employers with more than 25 employees to provide their employees

California Expands Coverage for COVID-19 Supplemental Paid Sick Leave

On January 11, 2021, District of Columbia Mayor Muriel Bowser signed the <a target="_blank" href="https://lims.dccouncil.us/downloads/LIMS/43373/Signed_Act/B23-0494-Signed_Act.pdf">Ban on Non-Compete Agreements Amendment Act of 2020</a> (“the Act”), effectively eliminating non-competes in Washington, D.C., except under very limited circumstances. The Act is anticipated to take effect on March 19, 2021. If the Act becomes effective, not only will it add D.C. to California, North Dakota, and Oklahoma as the jurisdictions in the U.S. completely banning post-employment non-competes, but it will go beyond those laws in prohibiting non-competes and anti-moonlighting policies during employment. The Act also continues the trend of states passing laws limiting the use of non-compete agreements.<h3>Coverage</h3>The Act applies to all private employers “operating” in D.C. It covers nearly all employees and prospective employees who perform work or are reasonably anticipated to perform work in D.C. for covered employers, with certain limited exceptions, including:<ul><li>Volunteers engaging in the activities of a nonprofit, educational, charitable, or religious organization; and</li><li>Medical physicians with a medical license, who completed residency, and make over $250,000 per year.</li></ul>Because there is no threshold for the amount of work employees must perform in D.C. to be covered by the Act, it is unclear whether the Act will apply to individuals based outside of D.C. that occasionally work in D.C. It is also unclear whether the phrase “operating within the District” will be interpreted to apply to private employers who do not maintain an office in D.C., but have employees who perform services or work in D.C.<h3>Covered Non-competes</h3>The Act bans covered employers from entering into or enforcing non-competes with covered employees, whether the non-competes are in a formal contract or part of the employer’s workplace policies or practices. Significantly, the Act bars non-competes and policies that prohibit employees from “simultaneously or subsequently” being employed by or performing services for another person or operating an employee’s own business. Accordingly, unlike other jurisdictions, such as California, that bar post-employment non-compete agreements, the Act goes one step further by banning non-compete agreements both during and after employment.<h3>Agreements Not Covered</h3>The Act does not impact any non-compete agreements that are signed before the effective date of the Act. The Act also expressly exempts non-compete agreements executed in connection with the sale of a business and agreements restricting employees from disclosing an employer’s confidential information or trade secrets. The Act is silent, however, as to whether agreements not to solicit an employer’s customers, vendors, or employees are prohibited.<h3>Effective Date</h3>Any non-compete agreements entered into after the Act is enacted will be void and unenforceable. The Act was sent to Congress on February 1, 2021 for review. Unless Congress rescinds the law, which seems unlikely given that the Democrats have the majority in both chambers of Congress, the Act is projected to be effective on March 19, 2021.<h3>Retaliation Prohibited</h3>The Act makes it illegal to retaliate or threaten to retaliate against an employee who refuses to agree to or comply with a non-compete agreement that violates the Act. Specifically, employers are prohibited from retaliating or threatening to retaliate against employees for:<ul><li>Refusing to agree to a non-compete provision;</li><li>Failing to comply with a non-compete provision, whether in an agreement or a workplace policy; or</li><li>“Asking, informing, or complaining about the existence, applicability, or validity of a non-compete provision or a workplace policy that the employee reasonably believes is prohibited under” the Act to an employer.</li></ul><h3>Enforcement and Penalties</h3>Employees have a right to either file an administrative complaint with the mayor or pursue a civil claim in court. The D.C. mayor and attorney general are responsible for administering and enforcing administrative claims under the Act. If the Act becomes law, the mayor will be required to issue rules to implement the Act. The D.C. mayor or attorney general may also require covered employers to make records required by the Act available for inspection. Employers found to violate the Act are subject to administrative fines ranging from $350 to $3,000 per violation.<h3>Notice to Employees</h3>If the Act becomes effective, employers must also notify employees in writing of the non-compete ban by using the following notice:No employer operating in the District of Columbia may request or require any employee working in the District of Columbia to agree to a non-compete policy or agreement, in accordance with the Ban on Non-Compete Agreements Amendment Act of 2020.The notice must be provided to existing employees no later than: (1) 90 days of the Act going into effect using certain specified text in the Act; (2) seven days after hiring; or (3) 14 days after the employer receives a written request for such statement from the employee.<h3>Looking Ahead</h3>Employers with operations in D.C. or employees who work within D.C. should review their agreements and policies in light of the potential, significant changes to D.C. law. Since the Act aims to ban both post-employment non-competes and anti-moonlighting policies, employers will need to determine what agreements or policies they can put in place to protect themselves from unfair competition either before the Act takes effect or without the use of non-competes. Employers may want to consider trying to get non-compete agreements in place before the law takes effect. In addition, employers should also consider updating their confidential information policies and agreements, as well as their non-solicitation clauses, to ensure they can protect their rights to the greatest extent possible.Because the Act might cover employees who only occasionally work in D.C., employers will also need to consider which employees might be covered by the Act. Although the Act will clearly apply to employees who are based in D.C., it remains to be seen whether employees only occasionally working in D.C. might be covered. Employers may want to consider whether they can use a choice of law provision in non-competes for non-D.C.-based employees to avoid the application of the Act.With the Act being the latest in a trend of jurisdictions across the United States cracking down on non-compete provisions, it is important to continue to monitor developments in this area that may impact an employer’s non-compete strategies and practices. As we previously <a target="_blank" href="https://elc.mofo.com/topics/Tightening-Restrictions-on-Noncompetes.html">reported</a>, other states have issued or have pending legislation significantly limiting the use of non-competes, including several states banning such agreements with low wage workers. It is also possible that there could be federal efforts to limit the use of non-competes under the Biden administration. On the campaign trail, President Biden said that he opposes non-compete clauses, “except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.”

gebert_eric_blog_150x150.png

gebert_eric_common_640x280.jpg

gebert_eric_heroretina_2700x1160.jpg

gebert_eric_mobileretina_750x1040.jpg

gebert_eric_social_600x600.jpg

Associate

Eric has experience defending class action, labor and employment, and intellectual property matters, including developing procedural strategies for clients preparing for trial, as well as examining in

Eric Gebert

200326-gov-contracts-coronavirus-tile-promo.jpg

The District of Columbia Joins Jurisdictions Banning Non-competes

The District of Columbia Joins Jurisdictions Banning Non-competes

200326-gov-contracts-coronavirus-tile-promo

On January 11, 2021, District of Columbia Mayor Muriel Bowser signed the Ban on Non-Compete Agreements Amendment Act of 2020 (“the Act”), effectively eliminatin

In this fifth episode of our podcast series on COVID-19, <a target="_blank" href="https://www.mofo.com/people/michael-ward.html">Michael Ward</a>, MoFo partner and global head of the firm’s Life Sciences Group and Patent Group, discusses with Janie Schulman, employment and labor partner in our Los Angeles office as well as co-chair of the firm’s COVID-19 task force, how the availability of the vaccine may impact the workforce, including compliance requirements, employer/employee rights, and whether employers can mandate employees must be vaccinated.<a target="_blank" href="https://www.mofo.com/resources/video-audio/200107-covid-vaccines-in-the-workplace.html">Listen to the podcast episode.</a>Follow our <a target="_blank" href="https://lifesciences.mofo.com/">MoFo Life Sciences</a> blog for more insights and in-depth analyses on trends and the complex technologies at the heart of the global pharmaceutical, biotechnology, diagnostics, medical devices, digital health, and AgTech fields.

ward_michael_blog_150x150.png

ward_michael_common_640x280.jpg

ward_michael_heroretina_2700x1160.jpg

ward_michael_mobileretina_750x1040.jpg

ward_michael_social_600x600.jpg

Michael (Mike) Ward is co-chair of the firm's Life Sciences + Healthcare Group, Patent Group, Intellectual Property Group, and Food + Agriculture Group.

Michael Ward Ph.D.

Michael (Mike) Ward is global head of the Life Sciences + Healthcare Group, head of the Patent Group, co-chair of the firm’s Intellectual Property Group, and co-chair of our global Food + Agriculture Group.

Michael Ward

mofo-perspectives-podcast-promo-tile2.jpg

Podcast: COVID-19 Vaccines in the Workplace

Podcast: COVID-19 Vaccines in the Workplace

mofo-perspectives-podcast-promo-tile2

In this fifth episode of our podcast series on COVID-19, Michael Ward, MoFo partner and global head of the firm’s Life Sciences Group and Patent Group, discusse

Last year was busy for Biometric Information Privacy Act (BIPA) litigants. Defendants in 2020’s flood of BIPA cases ranged from technology companies developing novel biometric products to amusement parks and healthcare organizations leveraging biometric tools for employee and customer authentication. Even small businesses, such as bakeries and restaurants, found themselves in the crosshairs of BIPA cases. Yet entering the third year after BIPA’s 2018 passage, despite the healthy clip of litigation, open questions remain about the law’s scope and reach. These questions—involving standing, settlement value, and more—were hotly contested in 2020, with no signs of letting up this year.Read our <a href="https://www.mofo.com/resources/insights/210111-bipa-litigation.html" target="_blank">client alert</a>.

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Camille Framroze is an associate in the Litigation Department of Morrison Foerster’s San Francisco office. Her practice encompasses a broad range of complex litigation, with a focus on commercial li

Camille Framroze

200403-litigation-tile-promo.jpg

Privacy Litigation 2020 Year in Review: BIPA Litigation

Privacy Litigation 2020 Year in Review: BIPA Litigation

200403-litigation-tile-promo

Last year was busy for Biometric Information Privacy Act (BIPA) litigants. Defendants in 2020’s flood of BIPA cases ranged from technology companies developing 

In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity Commission (EEOC) updated its pandemic guidance to address the legal issues surrounding the intersection of the COVID-19 vaccine and Equal Employment Opportunity (EEO) laws. The guidance—in the form of Technical Assistance Questions and Answers called What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“New Guidance”)—is the EEOC’s first substantive position statement on the requirements of EEO laws relative to vaccines since the 2009 H1N1 influenza pandemic and paves the way for COVID-19 vaccines in the workplace. During the H1N1 pandemic, EEOC advised employers, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” and noted that any employer requirement that employees take the influenza vaccine must allow for reasonable accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (“Title VII”).In its New Guidance, EEOC has backed off of its recommendation of avoiding vaccine mandates but never squarely states that employers may require COVID-19 vaccines. Nevertheless, based on EEOC’s conclusion that vaccines are not regulated “medical examinations” and the inclusion in the New Guidance of an entire section devoted to the rules governing the administration of mandatory vaccine programs, it appears EEOC agrees that employers may indeed mandate vaccines, subject to a number of caveats.

covid_02_28_elc_blog_600px_v2-300x200.jpg

What Employers Need to Know: EEOC Serves Up COVID-19 Vaccine Guidance

Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates

covid_02_28_elc_blog_600px_v2-300x200

In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity

What Employers Need to Know: EEOC Serves Up COVID-19 Vaccine Guidance

With the New Year rapidly approaching, employers should prepare for the flurry of new California employment legislation. The recent legislation presents new compliance challenges and requirements for California employers, including obligations related to the ongoing pandemic, reinforcing or expanding leave protections, wage and hour compliance risks, and much more. We discuss some of the most notable developments below. Employers should review their policies and procedures in light of these developments.<h4>COVID-19</h4>AB 685 imposes new COVID-19-related notification and reporting obligations and authorizes Cal/OSHA to shut down operations that place workers at risk of exposure.Effective January 1, 2021, AB 685 requires employers that receive a “notice of potential exposure” (which may come from a variety of sources, as discussed below) to COVID-19 to take the following actions within one business day of the notice:<ol><li> Provide written notice to all employees, and the employers of subcontracted employees, who were at the same worksite as a “qualifying individual” within the “infectious period” that they may have been potentially exposed to COVID-19. If the employees are unionized, written notice must also be provided to the exclusive representative of the employees. The “infectious period” is currently at or around 10 days, depending on whether the individual actually develops symptoms. The State Department of Public Health will be responsible for determining the length of the “infectious period.”<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234379514-v7-ELC_re__California_Legislation.docx#_ftn1">[1]</a></li><li>Provide all employees who may have been exposed (and their exclusive representative, if any,) with information regarding COVID-19-related benefits to which the employees may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections.</li><li> Notify all employees, and the employers of subcontracted employees (and their exclusive representative, if any) of the disinfection and safety plan that the employer plans to implement and complete, which must be consistent with the guidelines of the federal Centers for Disease Control.</li></ol>A “qualifying individual” includes someone who has a positive test for COVID-19, is diagnosed with COVID-19 by a licensed health care provider, is ordered to isolate for COVID-19 by a public health official, or dies due to COVID-19, as determined by a public health department. The “notice of potential exposure” may come from a variety of sources, including a public health official or licensed medical practitioner, a qualifying individual’s representative or emergency contact, the employer’s own testing protocol, or a subcontracted employer.AB 685 also requires employers with a COVID-19 “outbreak” within its premises to notify, within 48 hours, the local public health agency of the names, number, occupation, and worksite of the employees who meet the definition of a “qualifying individual” under AB 685. The term “outbreak” is to be defined by the State Department of Public Health, which currently defines “outbreak” as “at least three COVID-19 cases among workers at the same worksite within a 14-day period.”AB 685 also provides that employers should not disclose employees’ “medical information unless otherwise required by law” or “retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.”From January 1, 2021, until January 1, 2023, AB 685 authorizes Cal/OSHA to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19. An imminent hazard is defined as any condition or practice that poses a hazard to employees, which could reasonably be expected to cause death or physical harm immediately or before the imminence of such hazard can be eliminated through Cal/OSHA’s enforcement process. Any shutdown order must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” From January 1, 2021, until January 1, 2023, Cal/OSHA can also issue citations to employers for serious violations related to COVID-19 without providing 15-day advance notice. AB 1867 provides supplemental COVID-19 paid sick leave to employees.Effective September 19, 2020, AB 1867 provides supplemental paid sick leave until the later of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act. AB 1867 applies to private employers with more than 500 or more employees and certain employers who employ health care providers or emergency responders or operate a food facility. It requires these employers to provide supplemental COVID-19 paid sick leave to employees who are unable to work due to: (1) COVID-19-related federal, state, or local quarantine or isolation orders; (2) self-quarantine or isolation order by health care provider due to COVID-19-related concerns; or (3) their employer barring them from the worksite due to health concerns related to COVID-19.AB 1867 provides 80 hours of supplemental COVID-19 paid sick leave to an employee whom the employer considers “full time” or has worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee is not “full-time,” the employee’s supplemental paid sick leave is based on his or her normal schedule over the prior two weeks. The employer is not required to pay more than $511 per day or more than $5,110 in the aggregate to an employee for COVID-19 supplemental paid sick leave.SB 1159 makes injury from COVID-19 presumptively compensable under workers’ compensation law.For an employee who tested positive or was diagnosed with COVID-19 within 14 days after a day that the employee worked at a worksite at the employer’s direction, SB 1159 provides a rebuttal presumption that the employee’s COVID-19-related illness is an occupational injury that is eligible for workers’ compensation benefits. SB 1159 is effective through January 1, 2023.<h4>Protected Leave</h4>SB 1383 significantly expands California Family Rights Act rights for employees of small businesses.The California Family Rights Act (“CFRA”) authorizes eligible employees to take up to 12 weeks of unpaid, job-protected family and medical leave in a 12-month period. Currently, the CFRA applies to private employers with 50 or more employees within 75 miles of the employer’s worksite. Effective January 1, 2021, SB 1383 expands the CFRA to employers with five or more employees and eliminates the 75 mile requirement.SB 1383 also expands the types of leave that can be used under CFRA. CFRA currently allows employees to take leave to care for a “family member” who has a serious health condition. “Family member” is currently defined as a minor child, a spouse, or a parent. SB 1383 expands the definition to include adult children, siblings, grandparents, grandchildren, and domestic partners. SB 1383 additionally eliminates the CFRA restriction that allows an employer employing both parents of a child to limit CFRA leave to a total of 12 weeks for both parents due to bonding with a newborn child, adopting a child, or foster care placement. Moreover, SB 1383 eliminates the “key employee” exemption, allowing an employer to deny reinstatement to an employee who takes CFRA leave if the employee is among the highest paid 10% of the employer’s employees and the denial is necessary to prevent “substantial and grievous economic injury” to the employer.<ul><li>AB 2017 amends section 233 of the California Labor Code by providing employees with the “sole discretion” to designate the type of paid sick leave used. Currently, employers must permit an employee to use half of the employee’s sick leave entitlement to attend to the illness of a family member. Effective January 1, 2021, AB 2017 will prevent employers from incorrectly designating an employee’s sick leave as kin care and unintentionally depleting the number of hours an employee has to take leave when caring for a family member.</li></ul><ul><li>AB 2992 expands protections under sections 230 and 230.1 of the California Labor Code. Currently, those laws require employers to provide protected leave for employees who are victims of domestic violence, sexual assault, or stalking. Starting January 1, 2021, AB 2992 will expand the protected leave to employees who are victims “of a crime that caused physical injury or that caused mental injury and a threat of physical injury.”</li></ul><h4>Independent Contractors</h4>AB 2257 and AB 323 exempt more California workers from the ABC test under AB 5. As we <a href="https://elc.mofo.com/topics/California-Issues-A-New-Round-Of-Employment-Laws.html">reported</a>, AB 5 codified the expansive ABC test under the California Supreme Court’s Dynamex decision for purposes of determining whether a worker was misclassified as an independent contractor. AB 5 exempted numerous occupations from the ABC test.After challenges from various industries and professions, the California legislature passed AB 2257 and AB 323 to expand the number of exemptions under AB 5. For example, AB 2257 creates a new “single-engagement” business-to-business exemption from the ABC test for a “stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week” (e.g., an indie music band performing at a non-recurring event). Additional requirements must still be met for this exemption to apply, including that neither party is subject to the control and direction of the other, each party has the ability to negotiate its own rates, each party maintains its own business location, and each party provides its own tools, vehicles, and equipment to perform services under the parties’ contract.AB 2257 also creates new entertainment industry exemptions from the ABC test, including: (1) recording artists; (2) songwriters, lyricists, composers, and proofers; (3) managers of recording artists; (4) record producers and directors; (5) musical engineers and mixers engaged in the creation of sound recordings; (6) musicians engaged in the creation of sound records; (7) vocalists; (8) photographers working on recording photo shoots, album covers, and other items for press and publicity purposes; (9) independent radio promoters; and (10) any other individual “engaged to render any creative, production, marketing, or independent music publicist services related primarily to the creation, marketing, promotion, or distribution of sound recordings or musical compositions.” Musicians and vocalists who are not royalty-based participants in the work created during any specific engagement will be considered employees. Additional exemptions include, but are not limited to, licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators. Referral agencies for a non-exhaustive list of occupations such as caddies, photographers, and interpreters were also exempted from AB 5.AB 323, dubbed the “Save Local Journalism Act,” provides for a one-year extension until January 1, 2022, of the exemption of newspaper distributors and publishers from the ABC test.In addition, California voters recently approved an additional exemption to AB 5, Proposition 22, a California ballot that provides for classification of drivers who offer their services through app-based platforms as independent contractors.  Adoption of Proposition 22 shows that it is indeed possible, albeit expensive, for industry and professional groups to make their case for AB 5 exemption directly to voters.<h4>EEO Reporting</h4>SB 973 requires California private employers with 100 or more employees to submit pay data for its workforce to the Department of Fair Employment and Housing (“DFEH”) on an annual basis. The first submission deadline is March 31, 2021. The pay data must include information about the number of employees by race, ethnicity, and sex in the following categories: (1) executive or senior level officials and managers; (2) first or mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; and (10) service workers. Employers must also provide previous year W-2 earnings and hours worked for all employees in a searchable and sortable format.<h4>DLSE Complaints and Whistleblowers</h4>Starting January 1, 2021, AB 1947 expands the statute of limitations from six months to one year to bring a complaint with the Division of Labor Standards Enforcement (“DFEH”) for any employee who believes that he or she was discharged or otherwise discriminated against in violation of any law enforced by the Labor Commissioner. AB 1947 also amends Labor Code section 1102.5, which provides whistleblower protections, to allow a court to award reasonable attorney’s fees to a prevailing plaintiff.<h4>No-Rehire Clauses in Settlement Agreements</h4>We <a href="https://elc.mofo.com/topics/California-Issues-A-New-Round-Of-Employment-Laws.html">reported</a> last year that AB 749 prohibited no-rehire provisions in settlement agreements with employees who filed a claim against an employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. One notable exception to AB 749 was where the employer had made a good faith determination that the employee engaged in sexual harassment or assault or “if there is a legitimate non‑discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.” AB 2143, effective January 1, 2021, expands the no-rehire clause prohibition exception to include good-faith determination that the employee engaged in criminal conduct. AB 2143 was also amended to require employees to make “good faith” complaints to qualify for the no-rehire clause protection.<h4>Corporate Board Composition</h4>AB 979 requires publicly held companies whose principal executive office is located in California to have a minimum of one director from an underrepresented community by the end of 2021. For companies with more than four but fewer than nine directors, AB 979 requires a minimum of two directors from underrepresented communities by the close of 2022. For companies with nine or more directors, AB 979 requires a minimum of three directors from underrepresented communities by the end of 2022. “Director from an underrepresented community” is defined as an “individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.” A company is subject to a fine of $100,000 for a first violation of AB 979 and $300,000 for a second or subsequent violation. Similar to SB 826, which contains similar provisions for companies to have a minimum number of female directors, AB 979 may be subject to various legal challenges.<h4>Wage and Hour Enforcement</h4>AB 3075 requires a company, when filing the company’s statement of information with the California Secretary of State, to include information about whether any officer, director, member, or manager of the company has an outstanding final judgment issued by the DFEH or a court of law, for which no appeal is pending, for the violation of any wage order or provision of the Labor Code.AB 3075 also lowers the bar for an employee to establish successor liability for “any wages, damages, and penalties owed to any of the judgment debtor’s former workforce.” Under AB 3075, successorship may be established if any of the following criteria are established: (1) company uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (2) company has substantially the same owners or managers that control the labor relations as the judgment debtor; (3) company employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor; or (4) company operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor. While legislative history suggests that AB 3075 was introduced to prevent businesses from closing their operations and starting new ones to avoid liability for payments to employees, AB 3075’s language appears to go beyond this narrow scenario and potentially apply, for example, to a third-party company engaged in an asset purchase. <a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234379514-v7-ELC_re__California_Legislation.docx#_ftnref1">[1]</a> See the State Department of Public Health’s website for the latest guidance on this topic: <a href="https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Guidance-on-AB-685-Definitions.aspx">https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Guidance-on-AB-685-Definitions.aspx</a>.

aubry_lloyd_blog_150x150.png

aubry_lloyd_common_640x280.jpg

aubry_lloyd_heroretina_2700x1160.jpg

aubry_lloyd_mobileretina_750x1040.jpg

aubry_lloyd_social_600x600.jpg

Of Counsel

Lloyd W. Aubry, Jr. is a member of our Employment and Labor Group. Lloyd’s practice encompasses all aspects of employment and labor law, including litigation and counseling.

Lloyd Aubry

Lloyd Aubry’s practice encompasses all aspects of employment and labor law, including litigation and counseling. He represents public and private clients in a variety of matters relating to wage and hour law, employment discrimination, wrongful discharge, safety and health issues, and National Labor Relations Act (NLRA) issues. Mr. Aubry represents clients before administrative agencies and in state and federal court. A significant part of his practice involves expert testimony and consulting on issues relating to the Department of Industrial Relations. In this capacity, he has served for both employers and employees.

employment-law-blog-promo-tile.jpg

Another Round of New California Employment Laws

employment-law-blog-promo-tile1.jpg

employment-law-blog-promo-tile

With the New Year rapidly approaching, employers should prepare for the flurry of new California employment legislation. The recent legislation presents new com

Another Round of New California Employment Laws

When your organization is searching to fill a new position, you understandably want to find out as much as possible about the candidates who apply. Aside from determining whether the candidate has the specific skill set, education, and experience necessary to do the job, you want to make sure that the person will fit in with the team. Do they have a positive attitude and integrity? Are they flexible and hard working? Are they a good communicator and team player? Are they dependable and creative? If possible, you want to hear from references provided by the candidate to confirm that the candidate was sincere and meets your organization’s needs. You might even want to check how they behave on the Internet.It is difficult to figure all of this out through the traditional hiring process, so many companies resort to seeking additional information from the candidate him or herself and by conducting extensive background checks that might even include reviewing the candidate’s social media accounts.The nature of personal information that an organization may collect during the hiring process is, however, quite limited due to the EU General Data Protection regulation (GDPR), the implementing laws of the EU Member States and emerging U.S. laws. Here are seven tips for your international recruiting programs.Read our <a href="https://www.mofo.com/resources/insights/201030-international-recruiting-programs.html" target="_blank">client alert.</a> For more insights about privacy + data security, please visit our <a href="https://www.mofo.com/special-content/gdpr-resource-center/" target="_blank">GDPR Resource Center</a> and <a href="https://www.mofo.com/special-content/california-consumer-privacy-act/" target="_blank">California Consumer Privacy Act Resource Center</a>.

Clients seek Alja for her no-nonsense approach to resolving complex local legal issues efficiently while providing strong representation for their most important privacy, whistleblowing, and investigatory matters. Alja is the go-to counsel for EU whistleblowing laws and leads strategy for the firms’ advisory efforts for compliance with whistleblowing rules and procedures globally. 

Alja Poler De Zwart

Marian Waldmann Agarwal is a partner in the Privacy + Data Security Group at Morrison Foerster. She also co-leads the firm’s Artificial Intelligence Group and is a member of the global Environmental, Social, and Governance (ESG) Steering Committee.

Marian Waldmann Agarwal

Marian A. Waldmann Agarwal

190911-maze-gdpr-tile-promo.jpg

7 Tips for International Recruiting Programs in the Era of GDPR and Emerging U.S. Laws

7 Tips for International Recruiting Programs in the Era of GDPR and Emerging U.S. Laws

190911-maze-gdpr-tile-promo

When your organization is searching to fill a new position, you understandably want to find out as much as possible about the candidates who apply. Aside from d

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearing face coverings is one of the most effective ways to slow infections. State and local governments have issued orders requiring residents to wear masks in public, with some advising employers to provide their employees with face coverings or reimburse the reasonable cost of obtaining one. Governor Gavin Newsom of California, for example, has issued a number of mandates to slow infections. One of those mandates is that all individuals must wear a mask or face covering in public or common spaces statewide. Federal agencies such as the CDC and OSHA have issued non‑binding guidelines that also advise people to wear masks in public.It might seem that as long as businesses comply with these federal, state, and local requirements and guidelines regarding masks, they can expect to be shielded from lawsuits related to their mask-related policies. A few recently filed putative class action lawsuits, however, show that plaintiffs and their attorneys are nevertheless seeking ways to turn mask issues into litigation.See more on <a target="_blank" href="https://classdismissed.mofo.com/ada/warnings-from-recent-face-mask-litigation/">MoFo's Class Dismissed Blog</a>.Morrison & Foerster’s <a href="https://www.mofo.com/capabilities/class-actions-mass-torts.html">Class Action + Mass Torts Group</a>, <a href="https://www.mofo.com/capabilities/employment-labor.html">Employment + Labor Group</a>, and Coronavirus Task Force have advised and represented many clients on developing COVID-19 protocols and emerging claims related to COVID-19.

sosa-acosta_michelle_blog_150x150.png

sosa-acosta_michelle_common_640x280.jpg

sosa-acosta_michelle_heroretina_2700x1160.jpg

sosa-acosta_michelle_mobileretina_750x1040.jpg

sosa-acosta_michelle_social_600x600.jpg

Michelle Sosa-Acosta is an associate in the  Securities Litigation, Securities Enforcement, and Investigations + White Collar Defense Groups in Morrison Foerster’s San Francisco office. 

Michelle Sosa-Acosta

Are You Covered? Warnings From Recent Face Mask Litigation

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearin

Are You Covered? Warnings From Recent Face Mask Litigation

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain federal grant recipients from holding diversity and EEO training for their workforce that includes “divisive concepts,” such as training employees that the U.S. or an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”  The EO follows a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “white privilege” and “critical race theory” and demanding that they end racial sensitivity trainings.  The EO also comes at a time when many contractors have been increasing their diversity and anti-bias trainings in response to racial and social justice issues brought to the forefront over the last several months.While the precise parameters of the types of training prohibited by the EO are not clear, contractors should review their diversity and anti-bias training initiatives in light of these new requirements.  If implemented, the EO requirements will be included in federal prime contracts entered on or after November 21, 2020, and will require prime contractors to flow the requirements down their subcontractors and vendors.Read more on <a target="_blank" href="https://govcon.mofo.com/labor-employment/president-trump-issues-executive-order-banning-federal-contractors-from-race-and-sex-stereotyping-training/">MoFo's Government Contracts Insights Blog</a>.

bell_locke_blog_150x150.png

bell_locke_common_640x280.jpg

bell_locke_heroretina_2700x1160.jpg

bell_locke_mobileretina_750x1040.jpg

bell_locke_social_600x600.jpg

Locke Bell is a partner in the firm’s Government Contracts & Public Procurement practice.

Locke Bell

employmentlawbookgavel_gettyimages-180810589_small.jpg

President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training

In a Long-Anticipated Move, the Trump Administration Revokes Executive Order 13495, Giving Service Contractors More Flexibility when Hiring Predecessor Contractor Employees 

180810589

On September 22, 2020, President Trump signed an Executive Order on Combatting Race and Sex Stereotyping (the “EO”), prohibiting federal contractors and certain

President Trump Issues Executive Order Banning Federal Contractors from Race and Sex Stereotyping Training