Labor & Employment Law Blog

On January 13, 2022, the U.S. Supreme Court stayed the federal Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), which required large employers (with 100 or more employees) to institute a policy requiring their employees to be vaccinated against COVID-19 or undergo weekly testing. The Supreme Court’s ruling stayed the vaccine and testing mandate on the basis that OSHA had exceeded its authority in enacting the emergency rule (and that those challenging the mandate were likely to succeed). The Court described the federal ETS as “a significant encroachment into the lives—and health—of a vast number of employees.” Enforcement of the OSHA rule is currently on hold, pending further litigation on the merits.

With the start of the holiday season comes the inevitable question for employers: What are we going to do for the holiday party?  Perhaps the only positive note from the global pandemic of the past two years is the fact that HR departments were not faced with this question in 2020 due to stay-at-home orders and statewide COVID-19 surges.

On October 7, 2021, Governor Newsom signed SB 331 to place additional restrictions on employers offering severance agreements and settling employment claims alleging harassment, discrimination or retaliation based on purported violations of the Fair Employment and Housing Act (“FEHA”). The new law, which is effective January 1, 2022, expands California’s current legal restrictions under California Code of Civil Procedure Section 1001. Currently, CCP section 1001 prohibits various confidentiality and non-disparagement clauses in settlement agreements, specifically those that would prevent disclosure of factual information relating to claims of sexual assault, sexual harassment, workplace harassment or discrimination based on sex, or retaliation against a person for reporting such acts.

According to various reports, federal OSHA will release proposed regulations regarding the vaccine mandate for employers with 100 or more employees in the near future.  While such guidance has been eagerly anticipated in the employment community for weeks, California employers will have to wait for further guidance from Cal/OSHA, which has jurisdiction over most California workplaces.  Cal/OSHA recently revised its FAQs as follows: 

Even seemingly minor wage and hour violations present a very real threat of crippling or potentially ruinous liability for California’s employers when assessed in class and Private Attorneys General Act (“PAGA”) representative action lawsuits. To make matters worse, plaintiffs are increasingly targeting individual owners and agents in addition to their corporate employer, which begs the question: When can individuals be held personally liable in wage and hour lawsuits? 

Seventeen years ago, in 2004, the California Legislature enacted the Labor Code Private Attorneys General Act of 2004 (“PAGA”).  Appropriately dubbed a “bounty hunter” law, PAGA authorizes any current or former “aggrieved” employee of a California employer to file suit to seek statutory penalties for essentially any violation of the California Labor Code together with attorney’s fees, hence the incentive for plaintiff attorneys to bring such cases.  Specifically, under PAGA a current or former employee who is “aggrieved” by a violation of the California Labor Code can seek in addition to damages and liquidated damages, civil penalties on the employee’s behalf and on behalf of all other similarly “aggrieved” (i.e., affected) current and former employees.  The recoverable civil penalties are up to $100 per employee per pay period for an initial violation and $200 per employee per pay period for each subsequent violation, plus attorney’s fees and litigation costs.  When such penalties are awarded, the plaintiff current or former employee along with all other similar “aggrieved” employee will receive 25% of the penalties together with their attorney’s fees as a “bounty,” with the balance of the penalties payable to a State agency known as the California Labor and Workforce Development Agency.  Click Here to read entire post.

In Magadia v. Wal-mart Associates, Inc., et al., No. 19-16184, 2021 WL 2176584 (9^th Cir. May 28, 2021), the Ninth Circuit Court of Appeal reversed the district court’s award of $102 million to an employee who sued the company alleging that he and other employees did not receive compliant wage statements or meal periods.  Unlike the district court, the Ninth Circuit found that the former employee who sued Walmart had suffered no meal period violations, and thus the employee had no standing to sue on behalf of others.  The Ninth Circuit also held that the district court incorrectly concluded Walmart’s wage statements did not comply with California law.

As has been widely reported, companies throughout the country are facing pandemic-related labor shortages, including because of workers’ childcare obligations, concerns about returning to in-person work, and the continuation of unemployment benefits.  Employers attempting to address this labor shortage are offering hiring bonuses, increasing wages, and improving benefits and flexibility.  It also appears they are hiring teenagers to fill these vacancies, which coincides with the general uptick in youth employment between April and July each year.  According to the U.S. Bureau of Labor Statistics (“BLS”), the unemployment rate among teenagers this month stands at 12.3% and is anticipated to fall further, providing a stark contrast to teen unemployment last summer.  (In July 2020, the unemployment rate for 16 to 24 year olds was 18.5%, about twice as high as the year before, according to the BLS.)

One of the many downsides to the current pandemic is that so many people have exhausted their family leave taking care of themselves as well as sick family members.  The non-COVID-19-related issues of families have not gone away, however.  Who is taking parents to chemo treatments?  Who is taking spouses to physical therapy?  How do employees and employers deal with these issues?  If family leave is no longer an option, employees may turn to associational discrimination and reasonable accommodation of associational discrimination if they are denied time off to take care of family members.

On May 3, 2021, the California Department of Public Health issued guidance that fully vaccinated people do not need to quarantine if they are asymptomatic. COVID-19 Public Health Recommendations for Fully Vaccinated People.  On May 7, 2021, Cal/OSHA followed this lead and updated its COVID-19 Emergency Temporary Standards FAQs to reflect the change as follows: