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

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

Potential Exceptions Under FTC’s Non-Compete Ban

FTC Issues Final Rule Banning Non-Competes

Maryland Poised to Continue Trend of Jurisdictions Mandating Pay Transparency in Job Postings

LinkedIN

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

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.

park_kwan_blog_150x150.png

park_kwan_common_640x280.jpg

park_kwan_heroretina_2700x1160.jpg

park_kwan_mobileretina_750x1040.jpg

park_kwan_social_600x600.jpg

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

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

In response to the coronavirus pandemic, Congress has passed legislation to encourage continued payment of wages and benefits by providing relief to employers in the form of payroll-related tax credits, loans, and tax-deferral programs, including:<ul><li>for businesses with fewer than 500 employees, tax credits to cover the cost of paid sick and paid family leave coverage required for those employees;</li></ul><ul><li>tax-free forgiveness of certain government-guaranteed loans to small businesses to cover payroll and operating expenses during the coronavirus pandemic;</li></ul><ul><li>a payroll tax credit for qualifying wages during a time when the employer’s business has been suspended or experienced a significant decline in revenue; and</li></ul><ul><li>deferral of an employer’s portion of 2020 Social Security taxes not recovered under the payroll tax credit.</li></ul><div>Read our <a target="_blank" href="https://www.mofo.com/resources/insights/200402-payroll-tax-relief.html">client alert</a>.</div>

bozzetti_domnick_blog_150x150.png

bozzetti_domnick_common_640x280.jpg

bozzetti_domnick_heroretina_2700x1160.jpg

bozzetti_domnick_mobileretina_750x1040.jpg

bozzetti_domnick_social_600x600.jpg

Co-Chair of Executive Compensation Practice

Domnick advises the firm’s clients on all matters relating to executive compensation, with a focus on compensation and benefits aspects of corporate transactions, including mergers, spin-offs and initial public offerings. 

Domnick Bozzetti

Domnick advises the firm’s clients on all matters relating to executive compensation, including designing, drafting, negotiating and implementing equity and non–equity–based incentive compensation arrangements (including compensatory partnership interests), severance, change in control and executive employment agreements, non–qualified deferred compensation plans and related issues concerning tax (including sections 162(m), 280G and 409A) and securities law issues.

200302-coronovirus-covid-19-promo.jpg

Payroll Tax Relief Provisions of COVID-19 Legislation

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

200302-coronovirus-covid-19-promo

In response to the coronavirus pandemic, Congress has passed legislation to encourage continued payment of wages and benefits by providing relief to employers i

Payroll Tax Relief Provisions of COVID-19 Legislation

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.

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

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

On March 18, 2020, Governor Cuomo of New York signed into law a <a href="https://www.nysenate.gov/legislation/bills/2019/a10153">statewide quarantine leave bill</a> related to the COVID-19 pandemic (the “New York law”).  The New York law went into effect immediately on March 18 and provides paid leave, unpaid leave, and expands New York’s paid family leave and disability benefits to employees who are subject to a “mandatory or precautionary order of quarantine or isolation.”  On the same date, <a href="https://elc.mofo.com/topics/families-first-coronavirus-response-act-paid-family-sick-leave.html">President Trump signed into law the federal Families First Coronavirus Response Act (“FFCRA”)</a>.  We have been counseling clients around the country regarding a variety of employment issues related to COVID-19 and provide this article as a useful tool for our clients with employees in New York in particular. <h4>U.S. DEPARTMENT OF LABOR PUBLISHES FFCRA GUIDANCE</h4>As a preliminary matter, we note that the U.S. Department of Labor (“DOL”) confirmed in <a href="https://www.dol.gov/agencies/whd/pandemic">its regulatory guidance issued yesterday, March 24</a>, that FFCRA leave and benefits will go into effect on April 1, 2020.  We will provide a more detailed discussion of the DOL’s guidance in a separate alert, but briefly note here that it answers several, but not all, previously open questions.  One potential ambiguity that may remain unresolved is whether shelter in place (“SIP”) or stay at home (“SAH”) orders that have now been implemented by the governors of a growing list of states, including but not limited to, California and New York, constitute a “quarantine or isolation order related to COVID-19” for purposes of the FFCRA.  The March 24 DOL guidance does not address this question.  But the DOL is expected to be publishing further guidance as we get closer to the April 1 FFCRA effective date, so this is certainly an issue about which employers should work closely with legal counsel before making decisions.<h4>INTERPLAY OF THE FFCRA AND THE NEW YORK LAW</h4>We provide further details about the New York law and its interplay with the FFCRA below.OverviewThe benefits available to employees under the New York law differ depending on the size and/or net income of the employer.  The FFCRA applies to employers with fewer than 500 employees, but the DOL can exempt employers with fewer than 50 employees if providing paid leave would jeopardize the viability of the business.  The New York law expressly provides that an employee covered under both the New York law and any federal law or regulation related to COVID-19 is entitled to the difference between the benefits under the New York law and the benefits available, if any, under the federal law or regulation. Eligible Employees The New York law applies to employees who are “subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such order due to COVID-19.” Similar to the FFCRA open issue noted above, the New York law is vague on what constitutes a “mandatory or precautionary order of quarantine or isolation.”  But guidance from the New York State Department of Health arguably suggests that mandatory or precautionary quarantine or isolation applies to persons who have tested positive for COVID-19, been in close contact with or have had proximate exposure to someone who has tested positive, or traveled to China, Iran, Japan, South Korea, or Italy while COVID-19 was prevalent.  If that were the case, Governor Cuomo’s recent Executive Order 202.8, which requires all non-essential businesses and non-profit entities in New York to fully reduce their in-person workforce at any work location, would not fit within the meaning of “mandatory or precautionary order of quarantine or isolation” under the new law.  We may expect further guidance from the New York State Department of Labor Commissioner on this topic.The New York law contains carve-outs for certain employees:<ul><li>It does not apply to any employee who is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work, including telework, while under a mandatory or precautionary order of quarantine or isolation.  </li></ul><ul><li>An employee shall not receive paid sick leave benefits or other paid benefits provided by the New York law if the employee is subject to a mandatory or precautionary order of quarantine after non-work, voluntary travel to a high-risk country as determined by the Centers for Disease Control and Prevention and if the employee was provided notice of the travel health warning and this carve-out.  Such employee is entitled to use accrued leave provided by the employer, or to the extent that the employee does not have accrued leave or sufficient accrued leave, unpaid sick leave for the duration of the quarantine or isolation order.</li></ul>Unlike the FFCRA, the New York law does not provide paid sick leave to employees who are unable to work because they are experiencing symptoms of COVID-19 and seeking a medical diagnosis or even have been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19, among other reasons. Covered EmployersThe chart below details the amount of paid sick leave available to an eligible employee based on the size and/or net income of the employer.  Of significance is that unlike the FFCRA, the New York law applies to employers with 500 or more employees.  Under the New York law, the number of employees is measured as of January 1, 2020, and the net income refers to the previous tax year. Eligible employees do not receive both the paid sick leave available under the New York law and the paid sick leave available under the FFCRA.  If the New York law provides them with greater benefits, they are entitled to the difference between the benefits under the New York law and the benefits available under the FFCRA. The New York law is silent on how each day of paid sick leave pay should be calculated and whether part-time employees are entitled to the same amount of paid sick leave as full-time employees.  We may also expect to see further guidance from the New York State Department of Labor Commissioner on these topics, as the new law authorizes the Labor Commissioner to issue guidance and regulations, including “standards for the use, payment, and employee eligibility of sick leave pursuant to this act.”<table style="width: 0px;" cellpadding="0" cellspacing="0" border="0"><thead><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Employer Size</td><td valign="top" width="231" style="width: undefined%; height: auto;">New York Law</td><td valign="top" width="231" style="width: undefined%; height: auto;">FFCRA</td></tr></thead><tbody><tr><td valign="top" width="155" style="width: undefined%; height: auto;">500 or more employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">14 days of paid sick leave to each eligible employee</td><td valign="top" width="231" style="width: undefined%; height: auto;">Not applicable</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">100 or more employees but fewer than 500 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">14 days of paid sick leave to each eligible employee</td><td valign="top" width="231" style="width: undefined%; height: auto;">Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Between 50 employees and 99 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">Between 11 and 49 employees</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">10 or less employees and a net income of greater than $1 million</td><td valign="top" width="231" style="width: undefined%; height: auto;">Five days of paid sick leave to each eligible employee, and unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr><tr><td valign="top" width="155" style="width: undefined%; height: auto;">10 or less employees and a net income of $1 million or less</td><td valign="top" width="231" style="width: undefined%; height: auto;">Unpaid leave until the termination of the quarantine or isolation order</td><td valign="top" width="231" style="width: undefined%; height: auto;">Potential exemption from the DOL, but otherwise, up to 80 hours of paid sick leave for each full-time employee, and for each part-time employee, the number of hours s/he works on average over a two-week period</td></tr></tbody></table> Existing Sick Leave BenefitsThe New York law provides that “[s]uch leave shall be provided without loss of an officer or employee’s accrued sick leave.”  It is unclear whether “accrued sick leave” refers to existing mandatory sick leave, such as mandatory sick leave for employees in New York City and Westchester County, and/or to existing employer policies.  The FFCRA is clearer on the topic; the FFCRA does not diminish the right and benefits of an employee under “other Federal, State, or local law,” “collective bargaining agreement,” or “existing employer policy.”Anti-Retaliation and Job RestorationThe New York law provides that an employer shall not “discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to this act.”  The New York law also requires an employer to restore an employee who has returned to work following leave taken under the New York law to his or her “position of employment held by the employee prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.” The paid sick leave portion of the FFCRA provides that it is unlawful for an employer “to discharge, discipline, or in any other manner discriminate against an employee” who takes leave under the FFCRA and “has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.”  The FFCRA is silent on the topic of job restoration as to paid sick leave, but in its Family and Medical Leave Act (“FMLA”) expansion portion, it expressly exempts an employer with fewer than 25 employees from FMLA’s job restoration section if the employer meets certain conditions.  Paid Family Leave and Disability Benefits The New York law expands paid family leave and disability benefits to employees of employers with fewer than 100 employees.  It does not address whether these expanded benefits are available to employees of employers with 100 or more employees.Whereas paid family leave benefits are available only to employees who need to take a leave due to family issues, the New York law expands the definition of “family leave” for eligible employees to include: any leave taken by an employee from work when an employee is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19; or to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19.  The New York law also expands the definition of “disability” to include: any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation due to COVID-19; and when the employee has exhausted all paid sick leave provided by the employee’s employer under the new law. Employees who meet both definitions are entitled to collect paid family leave and disability benefits concurrently, up to $840.70 in paid family leave and $2,043.92 in disability benefits per week.

tate_eric_blog_150x150.png

tate_eric_common_640x280.jpg

tate_eric_heroretina_2700x1160.jpg

tate_eric_mobileretina_750x1040.jpg

tate_eric_social_600x600.jpg

Eric Akira Tate co-chairs the firm’s Global Employment and Labor Group. He represents technology and other companies in bet-the-company trade secrets and employee mobility cases.

Eric Akira Tate

Eric Tate chairs the firm’s Global Employment and Labor Group. He has represented technology and other companies in the biggest and most highly-publicized trade secrets and employee mobility cases across multiple industries. Eric also represents companies in whistleblower, wage and hour, and other employment litigation.

Eric Tate

New York COVID-19 Paid Leave and Recent Federal Coronavirus Developments

On March 18, 2020, Governor Cuomo of New York signed into law a statewide quarantine leave bill related to the COVID-19 pandemic (the “New York law”).  The New 

New York COVID-19 Paid Leave and Recent Federal Coronavirus Developments

FMLA, CFRA, NPLA, ADA, FEHA, NYPFL, SFPPLO.  The alphabet soup of leave laws with which employers must comply is enough to make the heads of even the most seasoned HR professionals and in-house counsel spin.  With an increasing number of municipalities jumping into the game, the number of laws keeps growing.  Realistically, mere mortals cannot memorize the details of each law, and, luckily, it is not necessary as long as they know how to spot issues and when to seek counsel.  Today, we address three key topics to help employers stay ahead of their leave of absence obligations: (1) recognizing leave issues buried within an employee’s questions, statements, or conduct; (2) keeping abreast of the existence of state and local laws in addition to the better-known federal laws; and (3) understanding the difference between the right to protected time off and the availability of full or partial wage replacement during time off. Recognizing Leave IssuesEmployee comments that might set off alarm bells for an experienced HR professional or in-house attorney may easily be overlooked by the front-line supervisors who have the most contact with employees.  It is crucial that supervisors and other people responsible for HR compliance be able to spot these issues. Employee rights to time off generally derive from the following sources:<ul><li>State and local paid sick leave laws;</li><li>The federal Family and Medical Leave Act (FMLA)[1] and state and local equivalents;</li><li>California’s Pregnancy Disability Leave law (PDL)[2] and similar laws in other jurisdictions;</li><li>Federal and state military leaves;[3]</li><li>Miscellaneous state leave laws protecting time off for jury duty, voting, witness duty, crime victims (domestic violence, sexual assault, stalking), emergency responders, school activities, organ donation, etc.;[4]</li><li>Paid vacation (not mandated by law, but employer must comply with its own policies); and</li><li>Time off beyond whatever the law or company policy mandates as a reasonable accommodation under the Americans with Disabilities Act (ADA), Section 503 of the Rehabilitation Act, and state equivalents.[5]</li></ul>Attorneys and HR professionals may think about leave issues in terms of these statutes, but the people who often have the most regular contact with employees—front line supervisors—do not typically think about employee issues in these legal buckets.  It is therefore important that supervisors and other company employees responsible for HR compliance be sensitized to an employee’s statements and actions that might implicate his or her right to leave.  More important than being able to distinguish among the finer points of PDL, FMLA, and ADA is the ability to recognize the following kinds of employee statements as possible triggers of a right to a job protected leave of absence:<ul><li>“My wife was wounded serving in Iraq and will be stuck in bed for the next two months.”  (FMLA and state military leave laws)</li><li>“Ugh.  I think I have the flu.”  (Federal FMLA and state law equivalents if the illness is sufficiently severe)</li><li>“My boyfriend hit me and I need Thursday morning off to go to court to get a restraining order.”  (Domestic violence leave under state law)</li><li>“My son has been suspended from school, and the principal wants to meet with me next week.”  (School leave under state law)</li><li>“The CIA is listening to my thoughts through my fillings.”  (Time off under the FMLA and state law equivalents for mental disability; reasonable accommodation under the ADA and state law equivalents)</li><li>“I’m sorry I’m late for work again.  I forgot to refill my Ritalin prescription.”  (Reasonable accommodation under the ADA and state law equivalents for ADHD)</li><li>“I realize I’ve used up all my FMLA time due to my surgery, but my doctor says I’ll be as good as new if I can just have a few more weeks off.”  (Reasonable accommodation under the ADA and state law equivalents)</li></ul>The time and resources devoted to training supervisors how to spot these issues will be time and resources well spent.  Not only will they help avoid lawsuits, but they may prevent morale problems and bad publicity.State and Local Regulation of Leaves From WorkCalifornia employers should know by now that California mandates paid sick leave, but some employers might not be aware that, as of January 2019, seven California cities have their own paid sick leave laws:  Berkeley, Emeryville, Los Angeles, Oakland, San Diego, San Francisco, and Santa Monica.[6]  Some of these laws conflict with California’s law and with each other.  For employers with employees in other states, things get even more complicated.  For example, the state of New York does not have a paid sick leave law, but New York City does.[7]  Nearby New Jersey has a state paid sick leave law, but no local laws which would be preempted under the state law.[8]Family and medical leave laws pose similar issues for employers.  California employers with 50 or more employees have long had to comply with the federal FMLA and the California Family Rights Act (CFRA).[9]  Since January 1, 2018, smaller California employers with 20 or more employees must comply with the New Parent Leave Act (NPLA), which allows eligible employees to take up to 12 weeks of unpaid, job protected leave to bond with a new child.[10]  Like California, the state of New York has its own version of the FMLA—the New York Paid Family Leave Benefits Law (NYPFL),[11] and New Jersey has the New Jersey Family Leave Act (NJFLA).[12]  It is not only states and cities that traditionally have more favorable laws for employees that are getting into the act.  Tennessee, for example, does not have a state equivalent to the FMLA, but has the Tennessee Maternity Leave Act (TMLA), which provides leave for qualified individuals for adoption, pregnancy, childbirth, and infant nursing.[13] In almost every case where multiple laws apply to the same employee, the employer must comply with the law that offers the most protection to the employee.  To stay compliant, employers must be vigilant in keeping abreast of federal, state, and local laws in every location where the company has employees.  This obligation can be especially tricky for companies with a smattering of employees spread throughout the country.  Companies that have one sales representative in each state or region can face compliance challenges as can employers that permit employees to work remotely from a city or state where the company has no offices or other employees. Some employers minimize the compliance burden by adopting company-wide policies applicable to all employees.  This approach requires the employer to adopt a policy that complies with the most employee-friendly leave laws applicable at any company location.  Although doing so may cost the company more money, in return the employer gets consistency and avoids morale problems that might arise when employees in one city learn that a colleague working at a facility a few miles away receives more paid sick leave or baby bonding leave simply because of geography.  Even companies that go this route must remain vigilant.  Given the pace at which state and local laws are being enacted, today’s most protective law can quickly become tomorrow’s has-been.Distinguishing Between Protected Time Off and Wage Replacement Anyone responsible for administering leaves of absence should be mindful of these basic rules:<ul><li>Leave Entitlement ≠ Entitlement to Be Paid.</li><li>Entitlement to Be Paid ≠ Leave Entitlement.</li></ul>While these rules seem straightforward, employers sometimes confuse laws that guarantee employees time away from work with laws or programs that offer full or partial wage replacement while an employee is off work. California’s Paid Family Leave (PFL) is one of the bigger culprits when it comes to confusion.[14]  PFL provides up to six weeks of partial wage replacement to an eligible employee who needs time off to provide care for a seriously ill family member or bond with a new child.  PFL is a form of wage replacement funded through a payroll tax paid by employees, but it does not entitle employees to any time off or reinstatement.  In fact, a person need not even be employed to receive PFL so long as she or he is actively looking for work at the time the person needs to care for a family member.[15]  The state of New York, by contrast, has taken a different approach than California with New York’s Paid Family Leave Benefits Law (NYPFL).  NYPFL applies to all private employers that employ one or more employees and: (i) guarantees time off for reasons parallel to those under the FMLA; and (ii) provides partial wage replacement during leave.  The leave is funded by employee payroll taxes and is paid through Paid Family Leave insurance that the employer must secure. An Illustration of the Myriad Laws in ActionConsider a pregnant woman, Wilma, who works as the controller of the Acme Company, which has 15 employees in California.  Wilma becomes disabled and is ordered to bed rest for the last two months of her pregnancy.  California’s Pregnancy Disability Leave law (PDL) guarantees her up to four months off work due to the disability and the right to be reinstated to her position (or a comparable position if her original position no longer exists) upon end of the disability.  Wilma’s job is safe despite the small size of the Acme Company and her extended time off.  PDL does not, however, entitle Wilma to any pay during her disability leave.  Wilma will, however, likely be eligible for partial wage replacement through California’s State Disability Insurance (SDI) (funded through payroll deductions) after a one-week waiting period.[16]  Wilma may use accrued paid sick leave or possibly accrued vacation, during the waiting period. Wilma delivers the baby through a normal vaginal delivery and her doctor certifies her as disabled under PDL for six weeks after the birth.  Wilma then decides she wants a few months of maternity leave to bond with her new baby.  Wilma may be entitled to Paid Family Leave (PFL) to partially cover her wages during maternity leave, but the Acme Company is not legally obligated to provide Wilma with any time off for baby bonding.  With only 15 employees, the Acme Company is not covered by the CFRA or NPLA, which guarantees employees of larger employers up to 12 weeks off for baby bonding after the end of any pregnancy disability.  The Acme Company, with only 15 employees, may voluntarily offer employees time off for baby bonding, or the company may allow Wilma to use accrued vacation, but despite the availability of PFL to pay for time off with the baby, Wilma has no protected right to time off for baby bonding.If the Acme Company were located in New York instead of California, Wilma would be entitled to guaranteed time off for baby bonding and partial wage replacement under NYPFL.  On the other hand, New York does not have an equivalent to California’s PDL.  Unlike in California, the Acme Company in New York would not have been required to hold open Wilma’s job for the three and a half months she was disabled due to pregnancy and childbirth.  Acme Company might have decided that it could not function without a controller for more than three months and lawfully terminated Wilma’s employment before the baby was born.ConclusionThe patchwork of leave laws throughout the country creates many traps for the unwary.  Employers of all sizes in all states are well-served by ensuring that HR professionals and supervisors are trained and sensitive to the issues.  It is also crucial to stay abreast of the quickly expanding universe of laws and to consider ways of mitigating the compliance burden, such as adopting uniform company policies in all locations.[1] 29 U.S.C. § 2601 et seq.[2] Cal. Code Regs., tit.2, § 11042[3] See e.g., the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq.; FMLA, 29 U.S.C. §§2612(a)(1)(E), 2612(a)(3); Cal. Military & Vet. Code § 395.10.[4] California Labor Code §§ 230-230.8.[5] 42 U.S.C. § 12101; see also, e.g., California Fair Employment and Housing Act, Cal. Gov. Code § 12940; New York State Human Rights Law, Article 15, § 290 et seq.[6] Healthy Workplaces, Healthy Families Act of 2014, Cal. Labor Code §245 et seq.; Berkeley Paid Sick Leave Ordinance, Berkeley Municipal Code, Ch. 13.100; Emeryville Minimum Wage and Paid Sick Leave Ordinance, § 5-37.03; Los Angeles Minimum Wage Ordinance, §187.04; Oakland Paid Sick Leave ordinance, Oakland Code of Ordinances, § 5.92.030; San Diego Earned Sick Leave and Minimum Wage Ordinance, San Diego Municipal Code § 39.0101; San Francisco Paid Sick Leave Ordinance, San Francisco Administrative Code Ch. 12W; Santa Monica Minimum Wage Ordinance, Santa Monica Municipal Code Ch. 4.62.[7] New York City Earned Sick and Safe Time Act, N.Y.C. Admin. Code §§ 20-911 to 20-924.[8] New Jersey Earned Sick Leave, N.J.S.A. 34:11D-1.[9] California Family Rights Act (CFRA), Cal. Gov. Code § 12945.2[10] California New Parent Leave Act (NPLA), Cal. Gov. Code § 12945.6.[11] New York Paid Family Leave Benefits Law, final regulations, tit. 12 N.Y.C.C.R. Part 380 et seq.[12] New Jersey Family Leave Act, N.J.S.A. 34:11B-16[13] Tennessee Maternity Leave Act, Tenn. Code Ann. 4-21-408.[14] Cal. Unemp. Ins. Code § 3300 et seq.[15] To complicate things a bit more, employers in San Francisco with 20 or more employees must supplement employees’ PFL by the amount needed to true up the employee to 100% of his or her regular salary.  See San Francisco Paid Parental Leave Ordinance, San Francisco Police Code 33H (2016).[16] Cal. Unemp. Ins. Code § 2601 et seq.

paid-time-off-thumb.jpg

Navigating the Seas of Federal, State, and Local Leave of Absence Laws

Navigating the Seas of Federal, State, and Local Leave of Absence Laws

shutterstock_329338832_small.jpg

Paid Time Off - Post Size

FMLA, CFRA, NPLA, ADA, FEHA, NYPFL, SFPPLO.  The alphabet soup of leave laws with which employers must comply is enough to make the heads of even the most seaso