Author: Scripta Ad Astra Staff

Author: Wendy Hillger

Proposition 65 requires the State of California to maintain a list of chemicals that can cause cancer, birth defects or other reproductive harm.   These warnings apply to landlords, business owners, bars/restaurants, and other retailers.  Businesses with 10 or more employees that expose individuals to listed chemicals through their products or operations generally must provide warnings.  At present, approximately 900 chemicals are required to be disclosed, such as additives or ingredients in pesticides, common household products, food, drugs, dyes, or solvents. Additionally, listed chemicals may also be used in manufacturing and construction, or they may be byproducts of chemical processes, such as motor vehicle exhaust.  These chemicals can be in the products that Californians purchase, in their homes or workplaces, or that are released into the environment.Read More >

Author: Sean B. Gentry

The U.S. Supreme Court recently ruled that employers can use arbitration clauses in employment contracts to limit their employees’ right to file or participate in class actions lawsuits on wage and hour claims. Employers can require their employees to pursue most types of employment claims in arbitration instead of court and can prevent employees from banding together to more efficiently litigate their claims as a group. For employers that have been waiting to see how the law settled on this matter, or that have been wondering about the validity of arbitration agreements already in place with their employees, it is now clear that these agreements will be enforced as long as they meet certain standards of fairness.

This case, entitled Epic Systems Corp. v. Lewis, resolved a number of conflicting Circuit Court opinions on this issue that stemmed from the National Labor Relations Board decision 2012 in D.R. Horton, Inc., which found that individual employment arbitration agreements were incompatible with the collection rights of employee under the National Labor Relations Act and that the NLRA was not preempted by the Federal Arbitration Act. However, a 5-4 majority of the Supreme Court disagreed with that finding and instead held that the FAA preempted the NLRA.

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Author: Sean B. Gentry

Yes, as the media widely reported, the U.S. Supreme Court sided with the baker in the case about a Colorado cake maker turning away business from a same-sex couple after he told them that he did not design custom cakes for gay couples.  However, rather than making a significant nation-wide ruling, the Court simply held that the Colorado Civil Rights Commission’s consideration of the baker’s case was “compromised” and it had treated him unfairly.  Thus, the ruling in no way opened the door to discrimination for businesses against any persons with protected, immutable characteristics.

In fact, Justice Kennedy wrote that it is “unexceptional” that Colorado law “can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public.”  The problem was that the Commission did not apply the law “in a manner that is neutral toward religion.”Read More >

By Sean Gentry

In response to the health concerns and shelter in place orders affecting individuals and business through the United States, the federal government has passed new paid sick time laws that all employers need to be aware of, called the Families First Coronavirus Response Act (FFCRA or Act).

This law goes into effect for April 2020 and continues through December 31, 2020.  It affects all employers with 500 or fewer employees.  In general, this law requires affected employers to provide their employees who cannot work (or remote work) with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.  Covered employers must provide to all employees:

• • Two weeks (up to 80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis.
    
    OR

 

• Two weeks (up to 80 hours, or a part-time employee’s two-week equivalent) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition.

For the first category, the amount of sick time to be paid is 100% of the employee’s income up to a maximum of $511 daily and $5,110 total.

For the second category, the amount of sick time to be paid is 2/3^rd of the employee’s income up to a maximum of $200 daily and $2,000 total.

However, in the case of employees caring for their child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons, then up to 12 weeks (i.e., 10 more weeks) of paid sick leave and expanded family and medical leave is available and paid at 2/3^rd of the employee’s income up to a maximum of $200 daily and $12,000 total.

Employees are eligible for the extra 10 weeks of paid leave only if they have been employed for at least 30 days prior to their leave request.  Employees are eligible for the paid sick time regardless of length of employment.

The Department of Labor (DOL) has explained that “unable to work” means the employer has work for you and one of the COVID-19 qualifying reasons set forth above prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of Remote work (“telework”).

Therefore, it appears that the sick leave requirements do not apply when no work is available.  In that case, please refer to the EDD website* with regard to various considerations for unemployment insurance benefits that may be applicable for employees whose businesses have been forced to reduce hours substantially, make furloughs, or make layoffs due to Coronavirus and the shelter in place orders.

The law prohibits employers from requiring an employee to find a replacement when using qualifying paid sick leave.  On the other hand, the paid sick time stops beginning with the employee’s next scheduled shift immediately following the conclusion of the need for paid sick time.  In other words, an employee must return to work as soon as the need for leave ends, even if the employee has not used all of the paid sick time available under the FFCRA.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or childcare unavailability if the leave requirements would jeopardize the viability of the business.  To elect this small business exemption, you should document why your business with fewer than 50 employees needs the exemption.  However, the DOL has not yet released the criteria for the exemption, which will apparently be addressed in more detail in forthcoming regulations.  The DOL does not need you to send any materials to them when seeking a small business exemption for paid sick leave and expanded family and medical leave.

A link to the poster that all employers should share with their employees—and post in the location where similar posters are displayed once it is safe to do so—can be found here:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Employers covered by the FFCRA qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA, for amounts paid to an employee who takes eligible leave, up to the maximums listed above.  Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage.  For more information on this part, please see the Department of the Treasury’s website, for example here:

https://home.treasury.gov/news/press-releases/sm952

For more information about the FFCRA, you can visit the Department of Labor’s information pages here:

https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Please note also that permitted uses of job-protected leave under the Family and Medical Leave Act (FMLA) were separately addressed under the Emergency Family and Medical Leave Act in response to COVID-19, which may be the topic of a separate article.

* Information from the EDD about unemployment benefits, options available for both employers and employees, and Coronavirus in California in general, please see the EDD’s website here:

https://www.edd.ca.gov/about_edd/coronavirus-2019.htm

https://www.edd.ca.gov/about_edd/coronavirus-2019/faqs.htm

Written by:

Alex Guney

Last month, an Alameda Superior Court Judge ruled that Proposition 22 was unconstitutional and unenforceable.  While app-based drivers may have won this battle, their war to be classified as employees is far from over—especially as Uber, Lyft, and other gig service providers attempt to enact legislation similar to Prop 22 across the county.

Prop 22 was a successful ballot initiative that defined app-based drivers as independent contractors, and not employees, if certain conditions were met.  The ballot initiative was in direct response to Assembly Bill 5, which codified a presumption that a worker is an employee, unless the hiring entity could prove three circumstances were present (dubbed the ABC test).  The ABC test was developed by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court and threated the gig business model, which depended on the app-based drivers being classified as independent contractors.

Prop 22 provided a new framework for determining when an app-based driver may be classified as an independent contractor. Specifically, if the company (1) does not unilaterally set specific requirements for the dates and times of day, or minimum number of hours, the driver must work; (2) does not require the driver to accept specific service requests; and (3) does not restrict the driver from working for other companies (ride-share or otherwise), then the app-based driver may be classified as an independent contractor.  Bus. & Prof. Code § 7451.

In February of this year, a group of Uber and Lyft drivers, along with the Service Employees International Union, filed a petition for writ of mandate, asking a California court to rule that Prop 22 violates the State’s Constitution. Judge Frank Roesch of the Alameda Superior Court agreed with the drivers and ruled that Prop 22 is unconstitutional and unenforceable. First, the court ruled that Prop 22 imposed an unconstitutional limitation on the Legislature’s ability to exercise its plenary power to determine which workers must be covered by the workers’ compensation system.  Second, Prop 22 applied conditions to the Legislature’s ability to amend the new law, which the court also found unconstitutional.  Because the limitation on the Legislature’s ability to exercise control over the workers’ compensation system could not be severed from the remainder of the statute, “the entirety of Proposition 22 is unenforceable.”

In practical effect, the court’s order may be a victory for app-based drivers in name only.  It is very likely that the proponents of Prop 22 will appeal that court’s order, and in turn, request that the effects of the court’s order be stayed during the pendency of the appeal.  This means that Prop 22 will remain in effect while the case makes its way through the appeals process.  But the order ruling Prop 22 unconstitutional would not have resolved the issue of how to classify app-based drivers.  Even absent Prop 22, determination of whether app-based drivers are independent contractors would revert back to the ABC test.  On the journey to be classified as employees, the ETA for app-based drivers is TBD.

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