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.

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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.

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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>.

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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>.

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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.

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.

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Kwan Park’s practice focuses on employment and labor litigation.
Kwan’s entire legal career has focused on representing employers. He seeks to understand each client’s unique business needs and objectives and relentlessly works to achieve them, whether in employment and labor litigation or in addressing novel legal issues.











Kwan Park

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Another Round of New California Employment Laws

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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

By unanimous vote on March 25, 2020, the Senate passed the largest stimulus measure the United States has ever seen, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The bill—totaling a whopping 880 pages—tackles numerous issues on several fronts in an effort to stabilize the economy during the Coronavirus crisis. Included in the bill are provisions related to employers and employees. In this article, we address the provisions of the CARES Act regarding employees’ entitlement to Public Health Emergency Leave and Paid Sick Leave and states’ entitlement to grants to pay and process unemployment claims. In the coming days, our Employment Law Commentary will address additional employment-related provisions of the CARES Act, and our colleagues across the firm will publish analyses of the other provisions of the bill, all of which will be available at our Coronavirus (COVID-19) Resource Center.The CARES Act modifies the Families First Coronavirus Response Act (“FFCRA”) enacted March 18, 2020. As we described in our prior <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">Employment Law Commentary analyzing the FFCRA</a>, the FFCRA created two new kinds of paid leave for employees of employers with fewer than 500 employees. First, the FFCRA expanded the available leave under the Family and Medical Leave Act (“FMLA”) by requiring covered employers to provide up to 12 weeks of paid leave due to “a qualifying need related to a public health emergency.” Second, the FFCRA created the Emergency Paid Sick Leave Act, which requires covered employers to provide employees up to 80 hours of paid sick leave for a qualifying purpose. In addition to creating new types of paid leaves, the FFCRA included the Emergency Unemployment Insurance Stabilization and Access Act (“EUISA”), which allocates emergency funds to states to pay and handle processing of unemployment compensation claims.The CARES Act is now before the House of Representative, which is expected to approve it on March 27, 2020.Public Health Emergency Leave (Sec. 3601)Under the FFCRA, employees of covered employers are entitled to up to 12 weeks of leave where the employee is unable to work (or telework) due to a need to care for a child of the employee under age 18 if the child’s school or place of care has been closed or the child’s care provider is unavailable due to a public health emergency (i.e., COVID-19). The first 10 days of Public Health Emergency Leave are unpaid (though employees may use their accrued vacation and sick leave during this time), while leave after the 10 days is paid. The FFCRA included a cap on this paid leave of $200 per day and $10,000 in the aggregate. The CARES Act clarifies that these caps are per employee and only for the Public Health Emergency Leave portion of the FFCRA. The new provision states, “An employer shall not be required to pay more than $200 per day and $10,000 in the aggregate for each employee for paid leave under this section.”Emergency Paid Sick Leave Act (“EPSLA”) Limitation (Sec. 3602)The FFCRA created the EPSLA, which requires covered employers to provide up to 80 hours of paid sick leave for full-time employees and an amount equal to the average number of hours that part-time employees work, on average, during a two-week period. This paid sick leave is available when an employee is unable to work (or telework) due to the following reasons:<ol><li> The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;</li><li>The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;</li><li>The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;</li><li>The employee is caring for a family member who is subject to a federal, state, or local quarantine or isolation order related to COVID-19 or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;</li><li>The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions; or</li><li>The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.</li></ol>The FFCRA capped this paid sick leave at $511 per day and $5,110 in the aggregate for sick leave taken due to reasons (1), (2), or (3) above and $200 per day and $2,000 in the aggregate due to reasons (4), (5), or (6) above. As with the Paid Public Health Emergency Leave, the CARES Act clarifies that these caps apply “for each employee.”Unemployment Insurance (Sec. 3603)The FFCRA created the EUISA, which expands unemployment benefits and provides grants to states for processing and paying claims of unemployment compensation. Among the conditions for any state to receive a grant under the EUISA, the state must: (1) require employers to notify employees at the time they lose their jobs of the availability of unemployment compensation, (2) ensure that unemployment compensation applications and assistance with them are accessible in at least two media (in-person, by phone, and/or online), and (3) take certain steps to ensure the successful processing of applications. The original text of the EUISA mirrored language in the Social Security Act, which requires that applications for unemployment compensation (as well as assistance with applications) be accessible in at least two of the following three media: in-person, by phone, and/or online. The CARES Act softens this requirement so that recipient states must provide access and assistance in two of the three media only “to the extent practicable.”OMB Waiver of Paid Family and Paid Sick Leave (Sec. 3604)The CARES Act amends the FFCRA to permit the Director of the Office of Management and Budget to exclude from certain employers of the U.S. government from entitlement to Public Health Emergency Leave and Paid Sick Leave.Paid Leave for Rehired Employees (Sec. 3605)The CARES Act changes the eligibility requirements for employees who to receive leave under the FMLA due to “a qualifying need related to a public health emergency.” Under the FFCRA, only employees who had been employed for at least 30 days were eligible for this leave. The CARES Act expands this eligibility to include rehired employees—specifically, employees laid off after March 1, 2020 (but who had worked at least 30 of the 60 days prior to the layoff) and then rehired.Federal Contractor Authority (Sec. 3610)The CARES Act provides that funds made available through the stimulus to federal contractors may be used to modify contracts as necessary so as to keep employees and subcontractors who would otherwise be employed on federal government sites (and who cannot telework) in “a ready state.” This provision is effective through September 30, 2020.Technical Corrections (Sec. 3611)Section 3611(7) of the CARES Act empowers the Secretary of Labor to issue regulations regarding leave under the FMLA due to “a qualifying need related to a public health emergency.” Previously, the Secretary of Labor’s regulatory powers in the FFCRA were limited to excluding healthcare and emergency responders from the definition of employee and to exempting small businesses of less than 50 employees from the requirements of providing FMLA leave due to “a qualifying need related to a public health emergency,” which, when doing so, would jeopardize their viability.

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CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More

Practical Considerations for Requiring Employees to Report to Work in Light of COVID-19 Stay-at-Home Orders

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By unanimous vote on March 25, 2020, the Senate passed the largest stimulus measure the United States has ever seen, the Coronavirus Aid, Relief, and Economic S

CARES Act – What Employers Should Know (Part I): Paid Emergency Sick and Public Health Emergency Leave and More

The American workplace has changed significantly since the passage of the Family and Medical Leave Act (“FMLA”) over 25 years ago.  The ubiquitous use of technology, such as email, instant messaging applications, laptops, and cellphones, have made working from home more commonplace and blurred the lines between home and work life.  In some industries or work cultures, managers expect employees to be accessible at most hours of the day, even when taking approved leaves of absence.  The need for employees to respond to employer inquiries while out of the office is even more likely when employees have valuable institutional knowledge about company business or clients that the employer needs.While employee accessibility may just be part of the modern workplace, contacting an employee on FMLA protected leave may subject an employer to a claim of FMLA interference.  But employees on FMLA leave are not completely firewalled from all contact.  As one court found, “[f]ielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.”[1]  So, when does reaching out to an employee of FMLA leave rise to the level of interference?Background on FMLA Interference ClaimsThe FMLA generally provides employees with up to 12 weeks of unpaid leave to, among other things, care for their own or a family member’s serious health condition and care for a newborn or adopted child within one year of birth or adoption placement.  It also provides up to 12 weeks of unpaid leave for employees to address any qualifying exigency arising out of military service and up to 26 weeks of unpaid leave to care for a covered service member with a serious injury or illness. To ensure employees can effectively exercise their rights under the FMLA, the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” an employee’s FMLA rights.[2]  To establish a claim for FMLA interference, an employee must show that (1) he or she is entitled to FMLA leave, (2) his or her employer interfered with that benefit, and (3) that interference caused harm.[3]  The FMLA does not define what types of actions constitute interference.  The sole example of interference in the regulations is “discouraging an employee from using such leave.”[4]  As one court put it, “[t]he line between contacts constituting interference and contacts that do not amount to interference, is indistinct.”[5] When Do Contacts Cross Into FMLA InterferenceWhile it is clear that requiring an employee to perform work on FMLA leave interferes with the employee’s protected leave rights, it is not clear when less onerous requests, such as requests for information, are permissible.  Courts have generally found that “de minimis” work-related contacts, such as calling an employee on FMLA leave to request client contact information, update the employee about workplace news,[6] request keys and passwords to employer equipment and facilities,[7] or discuss administrative information,[8] do not constitute interference with FMLA leave.  If the purpose of these contacts is “limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls.”[9] Crossing the line from “de minimis” contacts to requiring an employee on FMLA leave to “work” is more often than not a matter of the amount of time it requires for the employee to respond to the employer’s request.[10]  As a general rule, the more time it takes for an employee to respond to an employer’s request, the more likely that such contact will rise to the level of FMLA interference.  Where an employer’s request merely requires an employee to access information that is readily accessible and such information is important to the employer’s operations, courts have generally found such contact to be de minimis.  For example, a court found that an employer did not interfere with an employee’s FMLA leave when she was briefly contacted by her temporary replacement and boss to obtain basic information relating to her duties, such as the location of certain documents.[11]  In another situation, an employee could not establish an FMLA interference claim related to contacts by her co-workers and supervisors during her leave where those contacts were to update her about a holiday party, ask her to provide client contact and account information, and request information about her medical status and the date she planned to return from leave.[12]  The court found these were de minimis contacts requesting “basic information about clients” or updating the employee about “occurrences at work.”[13]  That court found it significant that no one at the employer had told the employee that she was required to work while on FMLA leave or required her to respond to the emails or telephone calls she received.[14]In contrast, contacts that relate to the employee’s regular job duties or that require a significant amount of time, such as requesting an employee to prepare a memorandum or organize events for a client, likely cross the line into impermissible interference with FMLA leave.[15]  For example, a federal district court found that an employer may have interfered with an employee’s FMLA leave by asking her “to perform 20-40 hours of work” and continuing “to call and email her requiring her to perform work assignments, including updating compliance cases, revising a safety review project, and dropping off files at the office.” [16]  Even when an employee performs more than de minimis work on FMLA leave, it may not create an actionable interference claim if the employee volunteers to work.[17]  For example, the Eight Circuit Court of Appeals found that an employer did not interfere with a physician assistant’s FMLA leave by asking her to complete tasks from home, such as responding to emails and patient phone calls, attending to prescription refills, and reviewing laboratory tests.[18]  In reaching its conclusion, the court found that the employee never expressed reservations about performing work and was actually seeking ways not to deplete her paid time off.  While the court noted that her supervisors’ instructions to work from home during leave approached the line of interference, there was no actual interference because the employee could not show that the “requests were a condition of her employment nor that her compliance with them was anything but voluntary.”[19]In some instances, an employer may need to contact or interview an employee on FMLA leave concerning a workplace investigation of the employee’s conduct or where the employee is needed to serve as a witness.  In such cases, courts have generally found that employers may contact employees for the limited purpose of fulfilling their investigatory obligations, but they cannot coerce or require employees to participate.  For example, the Fourth Circuit Court of Appeals found that an employer does not violate the FMLA by requiring an employee on FMLA leave to attend a meeting relating to an on-going investigation of that employee’s improper conduct.[20]  In that case, the employee, an assistant principal at a school, was diagnosed with post-traumatic stress disorder and went on FMLA leave after he had a physical altercation with a student.  During his leave, the Board asked him to attend a pre‑disciplinary conference related to the incident between the employee and the student.  The employee claimed that conference interfered with his leave by forcing him to work during his leave.[21]  The court disagreed, finding that “the one-time conference was a legitimate piece of an ongoing investigation[.]”[22]  Particularly illuminating for employers, the Fourth Circuit Court of Appeals stated:It is surely true that the investigative processes of any institution are open to abuse, but the record here points to a standard procedure during which due process was accorded to Adams every step along the way.  Adams does not dispute that the Board was entitled to conduct its own investigation into the January 19 incident.  Indeed, school districts must often engage in investigations like this one or else face accusations and lawsuits for not looking promptly into allegations of improper teacher contact with students or violations of school district policies.  The pre-disciplinary conference was part of the investigatory and disciplinary process, which Adams has not adequately linked to his ample FMLA leaves, and seeking the participation of Adams and his attorney in that process did not constitute an impermissible interference with Adams’s FMLA leave.  And Adams never objected or sought a continuance he did not get.[23]On the other hand, a California federal district court found that an employer’s demand for an employee to participate in a workplace investigation could constitute FMLA interference.[24]  In that case, the employee alleged that the employer waited almost a year after the employee first made the allegations to conduct an investigation, and the employer accused the employee of failing to cooperate when he refused to participate in the investigation due to his FMLA leave.[25]  The court concluded that these allegations could support a finding that the employer used the investigation to discourage the plaintiff from taking FMLA leave in violation of the statute.[26]Practical TakeawaysThe purpose of the FMLA is generally to allow employees to take leave from work to meet their family and medical needs without worrying that their job is in danger.  It places the onus on employers to ensure that employees can use the leave for such purposes.  While there may be a perfectly legitimate need to contact an employee on FMLA leave, employers must proceed cautiously to avoid interfering with the employee’s protected leave.  Without clear guidance for determining when such contact may rise to the level of FMLA interference, employers should consider the following general guidelines to mitigate potential risk:<ul><li>Avoid contacting employees on FMLA leave unless necessary.  If it can wait until the employee returns, it is better not to contact the employee.</li><li>If contacting employees on FMLA leave, only ask them to provide basic information that does not require them to perform time consuming tasks or retrieve information that is not easily accessible.  Contacts should generally be for specific purposes and limited in nature.  </li><li>If the employee objects to being contacted, take the objections seriously.  Have in-house or outside counsel review whether further contact is advisable.  </li><li>Train human resource personnel and managers on what contacts are appropriate while an employee is on leave. </li></ul>Document all interactions with employees on FMLA leave, including whether such contact was initiated by the employee or the employer and whether the employee voluntarily agreed to respond to the request.*We gratefully acknowledge the assistance of Victoria Dalcourt Angle in the preparation of this article.[1] Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009).[2] 29 U.S.C. § 2615(a)(1).[3] See Antekeier v. Lab. Corp. of Am., 295 F. Supp. 3d 679, 684 (E.D. Va. 2018) (citing Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015)).[4] 29 C.F.R. § 825.220(b)).[5] Antekeier, 295 F. Supp. 3d at 684.[6] Antekeier v. Lab. Corp. of Am., 295 F. Supp. 3d 679, 684 (E.D. Va. 2018); see also O’Donnell v. Passport Health Commc’ns, Inc., 561 F. App’x 212, 218 (3d Cir. 2014) (finding that emails sent to a plaintiff during FMLA leave requesting that she sign and return paperwork were “de minimis” and “did not materially interfere with her leave”).[7] Daugherty v. Wabash Ctr., Inc., 577 F.3d 747, 751 (7th Cir. 2009) (stating that employer’s repeated requests for keys and passwords “are not more intrusive than the requirement to keep the employer informed about the status of medical leave or otherwise comply with customary employer rules regarding notice.”).[8] Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 632 (6th Cir. 2018) (holding that contact initiated by School Board with superintendent requesting a breakdown of her time off did not rise to the level of actionable interference).[9] Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009); see also Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1158–59 (8th Cir. 2016) (“For purposes of summary judgment, courts have drawn the line along a distinction between, on the one hand, receiving nondisruptive communications such as short phone calls requesting the employee to pass on institutional knowledge or property as a professional courtesy, and, on the other, requiring the employee to complete work related to tasks or produce work product.”).[10] See Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1158–59 (8th Cir. 2016) (collecting cases).  See Smith-Schrenk v. Genon Energy Servs., LLC, No. H-13-2902, 2015 WL 150727, at *10 (S.D. Tex. Jan. 12, 2015) (denying summary judgment where plaintiff alleged that the employer “continued assigning her work” during FMLA leave). [11] Reilly v. Revlon, Inc., 620 F. Supp. 2d at 537.[12] Antekeier v. Lab. Corp. of Am., 295 F. Supp. 3d 679, 685 (E.D. Va. 2018). [13] Id.[14] Id.[15] Id. at 684 (E.D. Va. 2018); see also Hall v. Bd. of Educ. of City of Chi., No. 14-CV-3290, 2018 WL 587151, at *7 (N.D. Ill. Jan. 29, 2018) (denying motion for summary judgment for the employer where plaintiff, a teacher, provided an affidavit alleging that the principal contacted her during her FMLA leave and, among other things, wanted a prompt response to a question of how to access certain educational standards, requested emergency lesson plans for the entire leave period, and directed Plaintiff to post student grades earlier than required.); White v. Cardinal Health Inc., No. 1:05‑CV-0057-ODE-ECS, 2006 WL 8432042 (N.D. Ga. Feb. 28, 2006) (denying employer’s motion for summary judgment where manager called plaintiff repeatedly with work-related questions and demands in a manner that she found harassing, manager asked plaintiff’s family members to perform work-related tasks, plaintiff asked the human resources department and a supervisor to have the manager stop contacting her, and manager encouraged other colleagues to contact the plaintiff); McConnell v. Swifty Transp., Inc., No. 2:04-CV-0153, 2005 U.S. Dist. LEXIS 15565 (2005 WL 1865386), at *22-23 (S.D. Ohio July 29, 2005) (holding that plaintiff’s claim of FMLA interference was sufficient to survive summary judgment where plaintiff alleged that two co-workers called asking him to perform work-related tasks and that one co-worker visited him twice, contacts that the plaintiff characterized as harassing).[16] Smith-Schrenk v. Genon Energy Servs., LLC, No. H-13-2902, 2015 WL 150727, at *3, *10 (S.D. Tex. Jan. 12, 2015) (denying summary judgment where plaintiff alleged that the employer “continued assigning her work” during FMLA leave).[17] Massey-Diez v. Univ. of Iowa Cmty. Med.Servs., Inc., 826 F.3d 1149 (8th Cir. 2016) (where Eighth Circuit found that FMLA permits employees to voluntarily perform work while on leave).[18] Id. at 1154.[19] Id. at 1159-60.[20] 789 F.3d 422 (4th Cir. 2015).[21] Id. at 427.[22] Id. at 427.[23] Id. at 428.[24] Michelucci v. Cty of Napa, No. 18-cv-05144-HSG, 2019 WL 1995332, at *6 (N.D. Cal. May 6, 2019).[25] Id.[26] Id.

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FMLA Leave in the Digital Age: When Contacting an Employee on FMLA Leave Constitutes Interference

FMLA Leave in the Digital Age: When Contacting an Employee on FMLA Leave Constitutes Interference

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The American workplace has changed significantly since the passage of the Family and Medical Leave Act (“FMLA”) over 25 years ago.  The ubiquitous use of techno