Christina Tantoy
Christina Tantoy
Associate, San Francisco, CA
Formerly: Barista, Retail Clerk
  • J.D., California Western School of Law;
  • B.A., University of California, San Diego.

I am a first-generation Filipino-American, native to the suburbs of Los Angeles, whose parents both moved to the United States in their early 30s.

Growing up in a traditional large Filipino family, hospitality is a rite of passage. Welcoming guests into our homes to eat, laugh, celebrate, and simply spend time with one another is not just done for special occasions - it is a normal occurrence. When I was twelve years old, my family attempted to open a restaurant in the San Fernando Valley. However, they did not have the business savvy or means to keep that restaurant going.

As a young attorney, I am privileged with the opportunity to represent our clients in the hospitality industry to help their businesses grow while also tackling California’s ever-changing employment laws. Stokes Wagner’s dedication to both solve and prevent issues for their clients goes unmatched. I was not always sure what I wanted to be when I was growing up, but I did know that I love to read, write, and advocate for others. I am ready to face whatever challenges may come next.

If I am not in the office, I am usually going to live concerts, trying the newest restaurant in my neighborhood, or playing and/or watching basketball.

On September 15, 2021, the Ninth Circuit lifted an injunction and mostly upheld a California law, known as Assembly Bill 51 (“AB-51”), that prohibits mandatory arbitration agreements. AB-51 invalidates mandatory arbitration agreements that are a condition of employment, including mandatory agreements that allow an employee to “opt-out” of the arbitration provisions.

While we expect an immediate appeal of the ruling to the Supreme Court, barring a petition for rehearing or request for a stay pending that appeal, the Ninth Circuit ruling’s paves the way for AB-51 to take effect.

California passed AB-51 in October 2019 and the law was set to take effect on January 1, 2020. However, due to due to legal preemption challenges brought by various business groups, the law never went into effect. In February of 2020, these preemption challenges led to a United States District Court Judge granting an injunction which effectively blocked the implementation of AB-51.

Now, over a year later, the Ninth Circuit majority has partially reversed the District Court Judge’s Order and mostly lifted the injunction. The Ninth Circuit, however, affirmed that certain sections of the law were indeed invalid, specifically the sections that allowed for criminal penalties against employers who mandated these agreements. Importantly, the majority concluded that, despite the business groups’ arguments, AB-51 largely is not preempted by the Federal Arbitration Act (FAA) or conflict with the U.S. Supreme Court’s precedent surrounding arbitration. The majority ruled that AB-51 does not invalidate the creation of arbitration agreements but merely mandates that arbitration agreements between workers and their employers “be consensual.”

While an appeal would continue to prevent AB-51 from going into effect, employers may consider reviewing their arbitration agreements to assess whether such agreements are enforceable under the FAA and/or are a condition of employment.

For a printable PDF of this article, click here.


Earlier this month, the City of San Francisco revised its “Safer Return Together” Health Order to require restaurants (indoor dining), bars, clubs, gyms, and large indoor events to obtain proof of vaccination from patrons and employees.

The key requirements of the Health Order are as follows:

  1. As of August 20th, businesses must require proof of full vaccination status from all guests and patrons over the age of 12.
  2. Starting on October 13th, these businesses must require proof of full vaccination status from their employees working in indoor dining, clubs, and gyms, subject to medical and religious exemptions.

Businesses may not use self-attestation or ask for proof of a negative COVID-19 test. Both guests and employees must show proof of full vaccination status in one of three ways:

  • Vaccination Record Card (CRC) from the CDC;
  • Image of the card (e.g., a picture on one’s phone); or
  • Through an approved private app (e.g., Clear HealthPass, CommonPass, or VaxYes).

Businesses should notify their affected employees of the vaccination requirement and the October 13th deadline as soon as possible. Employers should also retain records of an employee’s vaccination status, such as making a copy of their vaccination card and placing it in the employee’s confidential medical file.

Lastly, employers should keep in mind that, despite these requirements, they are still required to engage in the interactive process and assess potential accommodations should an employee raise concerns related to medical and religious exemptions to the vaccine.

More details regarding this requirement, including mandatory notices, can be found here. Contact a Stokes Wagner attorney if you have any questions.

For a printable PDF of this article, click here.


On June 17, 2021, the Cal-OSHA Board voted 5-1 to adopt its proposed revisions to its Emergency Temporary Standards (ETS), which much more closely align with the CDC guidance. That same day, Governor Gavin Newsom signed an Executive Order enabling these rules to go into effect immediately. The revised ETS, among other things, allows fully vaccinated workers to discontinue mask usage and social distancing.

What changes under the revised ETS?

  • Regardless of vaccination status, no face coverings are required outdoors (except during outbreaks).
  • Unvaccinated workers (or workers who decline to provide their vaccinated status) still need to wear masks indoors except when they are alone in a room or are eating or drinking, in which case they are still required to socially distance themselves.
  • In most settings, employers may allow fully vaccinated employees to not wear face coverings indoors but must document their vaccination status (see below for details).
  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contact with COVID-19 cases.
  • Employers must provide unvaccinated workers with N95 masks or respirators upon request.
  • Employers may not retaliate against employees who wish to continue wearing face coverings.
  • Except during outbreaks, no physical distancing or barriers are required, regardless of vaccination status.
  • Restaurants and bars may return to full capacity.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency.

What requirements from the November ETS remain the same?

  • Employers must create and maintain an effective written COVID-19 Prevention Program and response plan for cases and outbreaks.
  • Employers must provide effective employee training on the prevention plan and their rights under the ETS.
  • After potential exposures, employers must offer testing.
  • Employees may still be eligible for quarantine and exclusion pay.
  • Outbreaks must be reported to public health departments and employees.

Additional employer responsibilities during outbreaks

Outbreak (three or more COVID-19 cases within a 14-day period)

  • Make testing available at no cost on a weekly basis for employees in the exposed work areas and exclude positive cases from work until the workplace no longer qualifies as an outbreak.
  • All employees in the exposed group, regardless of vaccination status, must wear face coverings when indoors or when outdoors and less than six feet from another person.
  • Implement social distancing and barriers.

Major Outbreak (twenty or more COVID-19 cases within a 30-day period)

  • Make testing available at no cost at least twice weekly for employees in the exposed work areas and exclude positive cases from work until no new cases are detected for a 14-day period.
  • Offer respirators or N95 masks to all employees, regardless of vaccination status.
  • Implement social distancing and barriers.
  • Consider halting all or part of operations to control the virus.

Fully vaccinated employees do not need to be excluded from the workplace unless they develop symptoms, in which case they are to be excluded the same as unvaccinated employees. ETS does not require an employee to have a negative test to return to work.

Vaccination Documentation If an employer permits fully-vaccinated employees to work indoors without a face covering, it must document the vaccination status of its employees. An employee is fully vaccinated two weeks after receiving the second shot of Moderna or Pfizer vaccines or two weeks after the Johnson & Johnson vaccine.

The Department of Industrial Relations (“DIR”) has issued guidance on how to document the vaccination status of employees, providing the following three options:

  1. Employers may retain a copy of the vaccine card;
  2. Employers may inspect the vaccine card and maintain a separate record of employees who presented proof (but not retain the vaccine record itself); or
  3. Employers may permit employees to self-attest, and the employer maintains a record of who self-attests.

Employees have the right to refuse to disclose their vaccination status to an employer, in which case employers will treat them as unvaccinated. Employers must maintain these records confidentially and must have them on file for any employee who will be taking advantage of the new rules. Alternatively, employers may require all employees to wear a face covering instead of having a documentation process.

For more information and continued updates, please see the DIR’s FAQ page here. For a printable PDF of this article, click here.


On April 21, 2021, the City of Chicago passed the “Vaccine Anti-Retaliation Ordinance,” which allows all workers in Chicago—including independent contractors—to get vaccinated during their work hours. The Ordinance went into effect immediately on April 21, 2021, and applies to employers of any size in the City of Chicago.

Under the Ordinance, employers may not terminate, discipline, or take any adverse action against a worker for taking time off to receive the vaccine. Employers also may not require workers to get vaccinated only during their off hours. This applies even if a worker is voluntarily getting the vaccine, regardless of the company’s policy or stance on the COVID-19 vaccine.

The Ordinance also imposes certain employee pay requirements. If an employer requires their workers to receive the vaccine, the employer must pay them at their regular rate of pay for up to four (4) hours per dose. If an employer does not require their workers to receive the vaccine, they must allow workers to use any accrued paid sick leave if the worker chooses to use it.

The City Office of Labor Standards will enforce the Ordinance and impose significant penalties for employer violations. Employers are subject to fines that may range from $1,000 to $5,000 per violation. Individuals may also sue in court for remedies, including reinstatement and triple damages.

The City of Chicago recently published this optional notice for employers. Employers should consider this Ordinance when reviewing or creating policies regarding the COVID-19 vaccine and worker time-off requests.

For a printable PDF of this article, click here.


We are proud to announce the release of our latest Quarterly Newsletter, which may be found here.

This quarterly covers topics including:

  • Anticipated changes in labor law under the Biden Administration,
  • The latest Assembly and Senate Bills for California,
  • Minimum Wage updates, and
  • Classification of independent contractors.

Our newsletter summarizes key developments in the employment law arena on a quarterly basis, with a focus on how these developments may impact the hospitality industry and your operations. As you may have noticed, the legal landscape changes on a far more frequent basis than four times a year. So, when a particularly significant development occurs, we immediately publish a “Legal Alert” and make it available to each of our clients and subscribers. If you would like to stay abreast of legal developments in real-time, and receive our legal updates in a more timely fashion, we invite you to follow us on Instagram @stokeswagner.


Return-To-Work Protocols

March 15, 2021  •  Christina Tantoy

Category: Legal Updates

For several months, employees who were exposed to or in “close contact” with a COVID-19 case were required to quarantine/isolate from the workplace for 14 days. As the vaccine’s availability increases and more workers become fully vaccinated, guidance relating to these quarantine/isolation protocols will loosen.

The latest guidance from the Centers for Disease Control and Prevention (CDC) states that fully vaccinated people who meet certain criteria no longer need to quarantine if exposed to COVID-19. A person who is exposed to COVID-19 does not need to quarantine if:

  1. The person is fully vaccinated (“fully vaccinated” means it has been at least 2 weeks since the person received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna) or the single-dose vaccine (Johnson and Johnson); and
  2. The person has no symptoms since the exposure to COVID-19.

The CDC guidance also states that, for now, fully vaccinated people should continue to:

  • Take precautions in public, like wearing a well-fitted mask and physical distancing.
  • Wear masks, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID-19 disease or who have an unvaccinated household member at increased risk for severe COVID-19 disease.
  • Wear masks, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households.
  • Avoid medium- and large-sized in-person gatherings.
  • Get tested if experiencing COVID-19 symptoms.
  • Follow guidance issued by individual employers.
  • Follow CDC and health department travel requirements and recommendations.

Notably, the CDC provides discretion to employers in mandating their workplace protocols and procedures. This may prove important as government authorities loosen or even lift COVID-19 restrictions for the general public. Further, many anticipate that the federal Occupational Safety and Health Administration (OSHA) will issue updated guidance or regulations that will require employers nationwide to implement stricter requirements, such as continuing to require face coverings in the workplace and implementing a COVID-19 prevention program. California employers will recognize these requirements as California OSHA enacted its own “COVID-19 Prevention Emergency Temporary Standards” in November 2020.

As the guidance and regulations for employers continue to evolve and more guidance relating to vaccines are being issued, employers should closely review and monitor their local and state COVID-19 regulations before making any changes to their current COVID-19 policies or protocols. Contact a Stokes Wagner attorney if you have any questions.

For a printable PDF of this article, click here.


California recently adopted stringent COVID-19 workplace standards, known as the “Emergency COVID-19 Prevention Regulations”, that immediately went into effect on November 30, 2020.

Notably, the Regulations—which apply to almost all employees and places of employment—require employers to do the following:

  1. Prepare a written “Covid-19 Prevention Program” which includes the information summarized below (this information includes COVID-19 safety protocols, employee exclusion and return-to-work protocols, and recordkeeping);
  2. Offer testing to potentially exposed employees and provide written notice to all employees who have been potentially exposed; and
  3. Provide paid and job-protected time off to employees who are excluded from the workplace due to a work-related COVID-19 transmission.

Please click here for a link to the final text. Employers should review the regulations as each topic imposes various obligations. Please contact a Stokes Wagner attorney if you have any questions.


System for Communication between Employees and their Employer. Employers must establish written policies that set forth the following:

  • Asks employees to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace.
  • Describes procedures or policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness.
  • Provides information about access to COVID-19 testing. If testing is required, the employer shall inform affected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
  • Communicates information about COVID-19 hazards and the employer’s COVID-19 policies and procedures to employees and to other employers, persons, and entities within or in contact with the employer’s workplace.

Identification and Evaluation of COVID-19 Hazards. Employers must specifically do the following to identify and evaluate COVID-19 standards:

  • Develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms.
  • Develop COVID-19 policies and procedures to respond effectively and immediately to individual COVID-19 cases at the workplace.
  • Conduct a workplace-specific identification of all interactions, areas, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.
  • For employers with indoor operations, evaluate how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system.

Correction of COVID-19 Hazards. Employers must implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies, and procedures in a timely manner based on the severity of the hazard.

Training and Instruction. Employers must train employees on the following:

  • Employer’s COVID-19 policies and procedures to protect employees from COVID-19 hazards.
  • Information regarding COVID-19-related benefits to which the employee may be entitled as required by law.
  • Facts as to the symptoms and infectious nature of COVID-19, including how it may be transmitted, how it can travel more than six feet.
  • The importance of not coming to work and obtaining a COVID-19 test if an employee has COVID-19 symptoms.
  • Methods for physical distancing and the importance of combining physical distancing with the wearing of face coverings, frequent handwashing with soap.

Physical Distancing. All employees must be separated by at least six feet, except: (1) where the employer can demonstrate that six feet of separation is not possible, and (2) momentary exposures while employees are in movement.

Face Coverings. Employers must provide face coverings to employees and ensure that employees wear their coverings over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required otherwise by health or government orders.

Other Engineering controls, administrative controls, and personal protective equipment. Employers must take extra measures to ensure adequate social distancing, cleaning, and air filtration:

  • Implement cleaning and disinfecting procedures and evaluate the need for personal protective equipment.
  • Install cleanable solid partitions that effectively reduce aerosol transmission between employees.
  • For buildings with mechanical or natural ventilation or both, employers must maximize the quantity of outside air provided to the extent possible.


A “COVID-19 case” is defined as a person who (1) tests positive for “COVID-19”; (2) is subject to a COVID-19-related order to isolate issued by a local or state health official; or (3) has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a count. Employers must implement effective procedures and policies to investigate COVID-19 cases and exclude employees who test positive or have been potentially exposed in the workplace.

Investigating and Responding to COVID-19 Cases. Employers must engage in contact tracing following any positive case that involved potential workplace exposure, and then notify and provide testing to potentially exposed employees.

Excluding COVID-19 cases. Employers must exclude employees who test positive for COVID-19 or have been potentially exposed to COVID-19 from the workplace.

For how long must employees remain out of work? Workers who test positive for COVID-19 or are subject to isolation must be excluded from work until their quarantine ends. The duration of quarantine depends on whether an employee is symptomatic or asymptomatic.

  • Employees who experienced COVID-19 symptoms (“symptomatic”) may not return to work until: (1) At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medication; (2) COVID-19 symptoms have improved; and (3) At least 10 days have passed since COVID-19 symptoms first appeared.
  • Employees who do not develop COVID-19 symptoms (“asymptomatic”) may not return to work until ten 10 days after the date of specimen collection of their first positive COVID-19 test.
  • Employees excluded because they were potentially exposed at the workplace (i.e., were in close contact with an employee who contracted or tested positive for COVID-19 during the period in which that employee was infectious) must not return to work until 14 days after the last known exposure, and those under an isolation or quarantine order must not return to work until the period of isolation or quarantine is completed or the order is lifted.

What are an employer’s notice obligations? Employers must issue written notice to all employees who have been exposed, their authorized representative, and independent contractors and other employers who were present during the high-risk exposure period within one business day (generally 48 hours before the onset of symptoms or specimen for the positive test).

Can employers require a negative test instead? No. Employers may not require a negative COVID-19 test for employees to return to work.

Is this “exclusion” time away from work protected time off and/or paid? Yes, BUT only if the employee is out of work due to COVID-19 exposure that is work-related.

  • If an employee is unable to work due to a possible workplace COVID-19 transmission, employers must continue to pay them their earnings and continue their seniority, rights, and benefits, including their right to their former job status.
  • To comply with this provision, employers may use other employer-provided sick leave benefits, benefit payments from public sources, and other legally mandated benefits (e.g., FFCRA pay) when the leave is not covered by workers’ compensation. Once those benefits are exhausted, the employer must provide additional paid time off.

Do employers have to offer COVID-19 Testing? Yes. Employers must offer COVID-19 testing at no cost during their working hours to all employees who had potential COVID-19 exposure in the workplace and provide them with the information on benefits.

What are the employer’s reporting requirements?

  • Employers must report all outbreaks —defined as three or more cases in 14 days —to the public health department and provide continuous testing to all on-site employees (for 20 or more cases in 30 days, employers must provide twice-a-week testing).
  • Employers must report immediately any COVID-19 related serious illnesses or death of an employee occurring in a place of employment or in connection with any employment.


  • Employers must maintain records of the steps taken to implement the written COVID-19 Prevention Program.
  • Employers must make their written COVID-19 Prevention Program available to employees, authorized employee representatives (e.g., Union representatives), and representatives of the Division.
  • Employers must keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test.
  • All information must be kept confidential. The information shall be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.

For a printable PDF of this article, click here.

This document provides a general summary and is for informational/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Please consult with counsel before taking or refraining from taking any action.

The Centers for Disease Control and Prevention (CDC) recently revised the guidance regarding when to return an employee to work following a positive COVID-19 test. These revisions shorten the period of time a person should self-isolate and adopt a symptom-based strategy rather than a test-based strategy. The CDC guidance may be found here.

Below is a summary of that new guidance:

In addition, the CDC advises that employers should no longer require a negative test for an employee who has tested positive to be permitted to return to work. Instead, it recommends the symptom-based approach outlined above. Similarly, it is not advisable to accept a negative test conducted immediately after an employee was potentially exposed to COVID-19 as the illness may take days to manifest itself.

It is worth noting that the EEOC’s “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which clarified that employers are allowed to require an employee to submit to COVID-19 testing before returning to work, remains in effect. Nevertheless, this practice is no longer advisable by the CDC.

As public health departments learn new information about COVID-19 every day, businesses should continue to monitor updates from the CDC and their public health departments.

For a printable PDF of this article, click here.


On July 13, 2020, the California Department of Public Health issued Updated COVID-19 Testing Guidance urging employers not to require a negative COVID-19 test before allowing an employee to return to work after they have tested positive for COVID-19.

The California Department of Public Health indicates that Polymerase Chain Reaction tests, such as nasal, oral, or throat or saliva tests, can remain positive long after an individual is no longer contagious. While the Equal Employment Opportunity Commission has issued guidance that seems to allow employers to require a “fitness-for-duty” examination or medical note clearing an employee to return to work, employers should not use testing to impermissibly discriminate against employees who previously tested positive for COVID-19.

Rather, employers should follow symptom- or- protocol-based criteria in determining when an employee is safe to return to work. While county guidance for employees returning to work may vary based on local conditions or pattern of transmission, the general return to work protocol is as follows:

  • Symptomatic employees who have tested positive for COVID-19 should return to work after 10 days after their symptoms first appeared and 3 days after recovery, where recovery is defined as the resolution of fever and reduction in respiratory symptoms.
  • Asymptomatic employees who have tested positive may return to work 10 days after the date of their positive COVID-19 test.

Below are resources to Return to Work guidance in San Francisco, Los Angeles County, and San Diego:

We urge businesses to stay apprised of updates to guidelines and health orders in the State and local county in which your business is located. For a printable PDF of this article, click here.


As businesses adapt to their “new normal” and prepare for the summer season, employers should be mindful of the approaching increases to city and state minimum wages. Employers should take the time to ensure that they are ready for minimum wage increases scheduled for July 1, 2020. The following cities and states will see an increase in the minimum wage as of July 1:

Employers in cities and states with no minimum wage increase as of now should be on alert for any potential raises to come and also be aware of already scheduled increases for certain cities (including New York City, Seattle, and Oakland) to take place at the end of the year. For more information, contact your Stokes Wagner attorneys. For a printable PDF of this article with links to English and Spanish posters, click here.


The City of Los Angeles released its increased minimum wage for hotels in the City of LA with 150+ rooms. On July 1, 2020, the hourly minimum wage increases from $16.63/hour to $17.13/hour for these hotel workers. The announcement can be found on the City of Los Angeles’ website, which can be found here.

The City of Santa Monica has its own Hotel Worker Minimum Wage Ordinance, which follows the City of Los Angeles wage rates. Thus, on July 1, 2020, the hourly minimum wage for hotel employees in the City of Santa Monica also increases from $16.63 to $17.13/hour.

As a reminder, this wage increase applies to all hotels located in Santa Monica, regardless of the number of rooms, whereas the wage increase only applies to hotels located in the City of Los Angeles with 150+ rooms.

For other updates on other local and state increased minimum wages effective on July 1, 2020, click here. Contact Stokes Wagner if you have any questions.


The City of Los Angeles released its increased minimum wage for hotels in the City of LA with 150+ rooms. On July 1, 2020, the hourly minimum wage increases from $16.63/hour to $17.13/hour for these hotel workers. The announcement can be found on the City of Los Angeles’ website, which can be found here.

The City of Santa Monica has its own Hotel Worker Minimum Wage Ordinance, which follows the City of Los Angeles wage rates. Thus, on July 1, 2020, the hourly minimum wage for hotel employees in the City of Santa Monica also increases from $16.63 to $17.13/hour.

As a reminder, this wage increase applies to all hotels located in Santa Monica, regardless of the number of rooms, whereas the wage increase only applies to hotels located in the City of Los Angeles with 150+ rooms.

For other updates on other local and state increased minimum wages effective on July 1, 2020, click here. For a printable PDF of this article, click here. Contact Stokes Wagner if you have any questions.


California recently modified its Stay-at-Home Order (Executive Order N-33-20) as of May 8, 2020, to allow manufacturing and certain retail businesses to re-open for curbside business. This modification of the Stay-at-Home Order has left hotels wondering whether hotels are allowed to re-open its doors to guests traveling for leisure or non-essential travel.

Unfortunately, the re-opening of hotels and lodging for leisure does not fall under Stage 2 of California’s modified Stay-at-Home Order. According to the State’s Coronavirus (COVID-19) Response site, “hotels and lodging are currently not permitted to operate for leisure/tourism in California.”

Hotels are only permitted to accept guests who are staying on property for “essential travel.” This means that, while hotels are an “essential business” or “critical infrastructure sector” under the Stay-At-Home Order, “hotels should only open for COVID-19 mitigation and containment measures, treatment measures, providing accommodation for essential workers, or providing housing solutions, including measures to protect homeless populations.” (See California’s Industry Guidance, here).

California is comprised of numerous localities, and different areas have seen different case levels. As the State of California approaches the next phase of the crisis, vastly different approaches are emerging. Whether a specific hotel may re-open for leisure/tourism will depend both on modifications to the statewide order and any applicable orders in its specific county.

As a reminder, the order is enforceable under California law; individuals who violate the order can be prosecuted for a misdemeanor offense and, if found guilty, receive fines (up to $1,000), imprisonment (up to six months), or both. (See Cal. Gov. Code § 8665).

For a printable PDF of this article, click here.


San Francisco’s Public Health Emergency Leave Ordinance (“PHELO” or the “Ordinance”) requires businesses with 500+ employees to provide employees with up to 80 hours of paid leave for COVID-related reasons (“PHELO Leave”).

While the Ordinance passed on April 7, 2020, the Ordinance was amended and went into effect on April 17, 2020. Shortly after, on April 24, 2020, the San Francisco Office of Labor Standards Enforcement (OLSE) updated its guidance on the Ordinance. Please click here for the OLSE’s latest Frequently Asked Questions, as of April 24, 2020.

Note that the Ordinance expires on June 17, 2020, unless reenacted, or upon the termination of the San Francisco mayor’s declaration of a public health emergency, whichever occurs first.

What employers must provide PHELO Leave? Employers with 500 or more employees nationwide; with one or more eligible employees. Employers that are defined as “Covered Employers” under the FFCRA are not covered by the Ordinance.

[The Ordinance is aimed to bridge the federal Families First Coronavirus Response Act (FFCRA) coverage gap as the FFCRA exempts employers with 500+ employees. And, unlike the FFCRA, the Ordinance applies to businesses that have temporarily closed or suspended operations.

Which employees are eligible to receive PHELO leave? The following employees are eligible to receive PHELO Leave:

  • Full-time, part-time and temporary employees who perform work within the geographic boundaries of the City and County of San Francisco;
  • Employees who perform limited work within the geographic boundaries of the City and County of San Francisco and who are considered “employees” under the existing San Francisco Paid Sick Leave Ordinance (PSLO); and
  • Employees who are participants in a Welfare-to-Work program, including but not limited to CalWORKS and the County Adult Assistance Program (CAAP), and any successor programs that are substantially similar to them that require a public assistance applicant or recipient to work in exchange for their grant.

How many hours of PHELO Leave will an employee receive? Full-time employees, as of Feb. 25, 2020, shall receive up to 80 hours. Part-time employees, as of Feb. 25, 2020, shall receive a number of hours equal to the scheduled average number of hours over a two-week period from August 25, 2019 through February 25, 2020 (including any leave the employees took).

An employer may offset these hours if they provided paid time off for COVID-19 on or after February 25, 2020, not including employees’ accrued or regular paid time off/vacation or paid sick leave.

When can an employee use PHELO Leave? An employee may use PHELO Leave when they are unable to work (or telework) due to the following reasons:

  1. The employee is subject to an individual or general government quarantine or isolation order related to COVID-19, including shelter-in-place orders. This includes an employee who is a member of a “vulnerable population,” which include people who are 60 years old and older, have certain health conditions such as heart disease, lung disease, diabetes, kidney disease, and weakened immune systems; or are pregnant or were pregnant in the last two weeks.
  2. The employee has been advised by a health care provider to self-quarantine.
  3. The employee is experiencing symptoms associated with COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for a family member who meets one of the categories listed above.
  5. The employee is caring for a family member if that person’s school or place of care has been closed, or the care provider of that person is unavailable, due to the Public Health Emergency.
  6. The employee is experiencing any other substantially similar condition specified by the Local Health Officer or federal law.

Note, employees may voluntarily choose, but an employer may not require the employee, to use other accrued PTO before the employee uses PHELO Leave.

Since the Ordinance went into effect on April 17, 2020, when can employees start to use PHELO Leave? Immediately—regardless of how long an employee has worked for the employer and regardless of whether and when the employee is scheduled to work. However, the number of hours taken may not exceed the average number of hours over a one-week period from August 25, 2019 through February 25, 2020 (including any leave the employees took).

How do we pay out PHELO Leave? Employers may calculate PHELO Leave in one of two ways:

  1. Use the regular rate of pay for the workweek in which the employee uses the PHEL, whether or not the employee works overtime in that week; OR
  2. Divide the 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.

Keep in mind:

  • Employers must pay PHELO Leave no later than the payday for the next regular payroll period after the PHELO Leave is taken.
  • Tips are not included when calculating PHELO Leave.
  • If an employee works two jobs at different pay rates for the same employer or an employee whose rate of pay fluctuates for the same job, the employer shall reimburse the employee at the employee’s average hourly rate of pay for the 90 days prior to the date upon which PHELO Leave begins.

Additional Conditions for PHELO Leave Use:

Employers may not require employees to:

  • Work a different shift instead of taking PHELO Leave.
  • Use an alternative school or place of care when they have been closed or are unavailable due to COVID-19 related reasons.
  • Provide the disclosure of health information or other documentation (e.g., doctor’s note or letter from a child care facility) in order to use PHELO Leave.
  • Take off the full day to use PHELO Leave.
  • Use PHELO Leave to find replacement workers covering for them.

Employers may require employees to comply with reasonable notice procedures, but only when the need for PHELO Leave is foreseeable and to identify the basis for requesting PHELO Leave.

Who is not eligible for PHELO Leave?

  • Employees covered by a bona fide collective bargaining agreement that expressly, clearly, and unambiguously waives the right to leave.
  • Former employees.
  • Employees of private employers at San Francisco International Airport.
  • Employees who did not perform work in San Francisco prior to February 25, 2020, and subsequently switched to teleworking in San Francisco.

Do we have to provide employees with notice of the Ordinance? Yes. Covered employers must provide this notice to employees in a manner calculated to reach all employees (e.g., posting at a job site, sending electronically, and/or posting to web-based or app-based platform).

Additional Paid Sick Leave Relief

As a final reminder, the City of San Francisco has agreed to contribute up to 40 hours of additional paid sick leave program through the Workers and Families First Program. This new program provides financial assistance to businesses and nonprofits providing paid sick leave (beyond the existing SF PSL requirements) or PHELO Leave. All San Francisco businesses are eligible, with up to 20% of funds reserved for small businesses with 50 or fewer employees. Employers may apply through the Office of Economic & Workforce Development here.

For a printable PDF of this article, click here.


The DOL has issued new guidance and clarified that employees who do not have work available to them (e.g., as a result of a furlough or business closure) will not be eligible for benefits under the Families First Coronavirus Response Act.

As a reminder, to qualify for Emergency Family and Medical Leave Expansion Act (EFMLEA) leave or Federal Paid Sick Leave (FPSL) under the FFCRA, employees must be unable to work or telework. The DOL clarified what exactly it means to be “unable to work”:

Q: “What does it mean to be “unable to work”, including telework for COVID-19 related reasons?”

A: You are unable to work if your employer has work for you and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by means of telework.

If you and your employer agree that you will work your normal number of hours, but outside of your normally scheduled hours (for instance early in the morning or late at night), then you are able to work and leave is not necessary unless a COVID-19 qualifying reason prevents you from working that schedule.

In light of the preceding, it appears that those employees whom businesses have already furloughed will not be eligible to receive FFCRA benefits, assuming there is no work for them to perform. This should continue to be the case so long as the business is closed and/or there is no work for them to perform. Nonetheless, these employees will remain eligible for unemployment benefits under state and/or federal law.

For a printable PDF of this article, click here.

As the 2020 United States Census goes into full effect, the U.S. Census Bureau is sending letters to various hotels requesting their participation in the 2020 Census count (the “Census”). Every time, our clients have the same question: do we have to participate?

The Census is mandated by the Constitution and conducted by the U.S. Census Bureau, a nonpartisan government agency. The purpose of the Census is to count the population in all 50 states, the District of Columbia, and five U.S. territories (Puerto Rico, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the U.S. Virgin Islands). The Census “population” includes individuals living or staying in “nontraditional” living situations, such as hotels or motels.

Notably, hotels, whether through its owner or management company, are legally required to cooperate with Census Bureau representatives or face fines up to $500. Under federal law, cooperation in the Census means specifically, “to furnish the names of the occupants of such premises, or to give free ingress thereto and egress…” (13 U.S.C.A. § 223). This cooperation will generally require hotels to provide Census Bureau representatives with access to individuals living or staying on property. While advocates have challenged the constitutionality of the Census and its privacy implications (i.e., giving up guest information would be a violation of the guest’s right to privacy), the Census remains in effect and mandatory for applicable hotels.

If you have received a letter from the Census Bureau and have any questions, please contact Stokes Wagner. For a printable PDF of this article, click here.

AB 51, the law that would prohibit California employers from requiring arbitration agreements as a condition of employment, remains on pause indefinitely. On January 31, 2020, after receiving supplemental briefing from both sides, the Eastern District of California issued an order granting preliminary injunction and indefinitely extending the injunction that prevents AB 51 from taking effect. This means that the State of California may not enforce AB 51 until the legal challenges to AB 51 are heard on the merits.

Employers should stay tuned for more updates as the Court will eventually determine whether the State of California should be permanently enjoined from enforcing AB 51. For now, the status quo remains and employers need not make any changes to arbitration agreements that are covered by the Federal Arbitration Act.

For a printable PDF of this article, click here.

Today, on September 18, 2019, California Governor Newsom signed Assembly Bill 5 (AB-5), a landmark piece of legislation that codifies the ABC test and will significantly limit most employers’ use of independent contractors.

Last year, in April 2018, the California Supreme Court rocked the State’s labor and employment landscape with the decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (“Dynamex”). The court’s decision changed the way employers classified independent contractors from the longstanding Borello test (an eleven-factor test with no single factor being determinative of a workers’ classification) to a much stricter “ABC” test.

Starting on January 1, 2020, the ABC test becomes state law. California will consider a person providing labor to be an employee of a hiring entity unless:

  1. The person is free from the control and direction of the hiring entity both under the contract and in fact;
  2. The person performs work outside the usual course of the hiring entity’s business; and,
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

While Dynamex applied only to misclassification claims brought under California’s IWC wage orders, AB-5 will apply the same test to claims brought under all provisions of California’s Labor Code and Unemployment Insurance Code.

Specific industries and professions are exempted from this new legislation, including doctors, dentists, lawyers, architects, accountants, engineers, insurance agents, graphic designers, investment advisers, persons engaged in direct sales, travel agents, real estate agents, financial advisers, fine artists, hairstylists who rent booths at barbershops and salons, and persons with working with advanced degrees in marketing or human resources administration. Those exempted will be subject to classification under the former Borello factors.

If you are concerned about how this might affect your business, contact Stokes Wagner or other counsel immediately. Application of the three prongs of the ABC test are still subject to challenge in the court and may be expanded upon or limited at any time. Misclassification claims can be costly, so regular guidance will be essential in any dealings with contract workers.

For the full text of the opinion, click here. A printable PDF of this article is available here.

California employers now have until January 1, 2021, to provide sexual harassment training to their non-supervisory employees.

Last year, California passed SB 1343, which expanded sexual harassment training requirements for employers. All employers with five or more employees were required to provide sexual harassment training to non-supervisory (or “hourly”) employees by January 1, 2020. These employers are now required to provide sexual harassment training to employees as follows:

• Supervisors/Managers must receive two hours of training; • Non-supervisory employees must receive one hour of training.

What has changed? The deadline for employers to train their non-supervisory employees has been extended from January 1, 2020, to January 1, 2021. In other words, if an employer has not already trained its non-supervisory employees, they now have the year 2020 to do so – so long as they train all non-supervisory employees by January 1, 2021.

California employers initially had until January 1, 2020, to get in compliance and train all of their non-supervisory employees on sexual harassment. Due to the confusion of these requirements, California Governor Gavin Newsom recently passed SB 778 to clear up the confusion and extend the deadline to January 1, 2021.

What has not changed? This recent extension (SB 778) does not affect (1) supervisors/managers or (2) seasonal or temporary workers.

• Managers: California employers must continue to provide sexual harassment training to supervisors/managers every two years and within 6 months of their hire date. • Seasonal or Temporary Workers: Starting January 1, 2020, employers must provide sexual harassment training to seasonal or temporary workers who work less than 6 months. Training must take within 30 calendar days from their hire date or within these employees’ first 100 hours worked, whichever comes first.

What if we’ve already trained our hourly employees in 2019? First off, great job! Once employees are trained, they must be re-trained once every 2 years. So, if an employer has already trained its employees (supervisory and non-supervisor), they do not need re-train these employees for two years, or until 2021.

For a printable PDF of this article, click here.

The State of California recently passed SB-83, which extends Paid Family Leave benefits from six to eight weeks for claims that start on or after July 1, 2020.

CA’s Paid Family Leave program (“PFL”) is a state disability insurance program. PFL provides up to eight weeks of wage replacement benefits to employees who take time off work to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner. PFL can also provide eight weeks for benefits to employees who take time off to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption.

Employees apply for PFL benefits by submitting a claim online with the Employment Development Department (EDD). Employees must wait to submit their claims with the EDD until after they start their leave but must submit their claims within 41 days of the start of their leave. If approved, employees will generally receive up to 60-70% of their wages from the EDD.

As a reminder, PFL is a wage supplement program and not a job-protected leave of absence. Employees may be entitled to a leave of absence under the California Pregnancy Disability Leave (PDL), federal Family Medical Leave Act (FMLA), California Family Rights Act (CFRA), or California New Parent Leave Act (NPLA).

Employers should also stay tuned this year for updates on SB-83. SB-83 requires California Governor Gavin Newsom to propose a plan for more benefit increases and job protections for employees receiving PFL benefits by November 19, 2019.

SB-83 also affects San Francisco’s local ordinance. San Francisco’s Paid Parental Leave Ordinance is matching California’s extension. San Francisco employers must supplement an employee’s PFL benefits so that they receive 100% of their wages for eight weeks instead of six weeks.

Please contact a Stokes Wagner attorney if you have any questions. For a printable PDF of this article, click here.

The City of Chicago becomes the latest city to pass predictive scheduling legislation, also known as the “Fair Workweek Ordinance.” Effective July 1, 2020, this Ordinance requires certain employers to give most workers early notice of their schedules and to pay employees whose schedules are changed after they receive notice.

What are the notice requirements? Starting on July 1, 2020, covered employers must give employees at least 10 days’ notice of their schedules. This notice period will increase to 14 days in 2022.

Employers must post schedules at the workplace and send schedules electronically upon request. New hires must receive an initial work schedule that runs through the date of the next work schedule for existing employees prior to or on their first day of employment. If an employer adds hours to an employee’s schedule that has already been noticed and provided to employees, the employee has the right to decline to work those hours.

Who is covered? The law affects certain industries and employees within those industries. Specifically, the Ordinance applies to:

  • Hotels with 100 or more employees and restaurants with 250 or more employees located within the City of Chicago
  • Hourly employees who earn less than $26/hour and salaried employees who earn $50,000 or less annually
  • Employers that maintain a business facility within the City of Chicago, have 30 locations globally, or are subject to City licensing requirements in the following industries: day and temporary labor service agencies, building services, healthcare facilities or programs, manufacturers, airports, warehouses, retail, and childcare

What are the penalties if an employer has to make a schedule change? Employees are owed additional pay if an employer changes an employee’s schedule. The amount of pay depends on whether the employee will gain or lose scheduled hours as a result of the schedule change.

  • Employees are owed one hour of “Predictability Pay” at the employee’s regular rate of pay if the employer adds hours of work, changes the date or time of a work shift with no loss of hours, or cancels or constructs hours from a regular or on-call shift with more than 24 hours’ notice.

  • Employees must be paid their scheduled hours at the rate of at least one-half times the employee’s regular rate of pay if the employer subtracts hours from a regular or on-call shift or cancels a regular or on-call shift with less than 24 hours’ notice.

What are the exceptions? Exceptions are limited and strict. The Ordinance requirements will not apply in the following circumstances:

  • Employees mutually agree to change their schedules (e.g., shift trade or coverage arrangement). The employer must send the employees the modified work schedule electronically.
  • Employees request a shift change in writing, including but not limited to use of sick leave, vacation leave, or other policies offered by an employer.
  • Employer reduces hours from an employee’s work schedule for disciplinary reasons, so long as the employer documents the incident leading to the employee’s discipline in writing.
  • Employees volunteer to work additional hours in response to a written group communication from the employer regarding the availability of additional hours, so long as the communication is used only for additional hours result of another employee being unable to work scheduled hours, and when the employer states that accepting such hours is voluntary and the covered employee has the right to decline such hours.
  • Certain banquet events. For example, a hotel banquet event is scheduled due to circumstances that are outside the employer’s control, the attendee counts increase by more than 20%, or a “pop-up event” is scheduled after the employer provides the Posted Work Schedule. A “pop-up event” means a new hotel banquet event scheduled within 48 hours of the event occurring.
  • In cases of natural disasters, war, strikes, pandemics, or any other causes not within an employer’s control.

The Fair Workweek Ordinance is the result of extensive negotiations between the City of Chicago’s Committee on Workforce Development and various business groups including the Illinois Hospital Association, Chicagoland Chamber of Commerce, Illinois Hotel Lodging Association, Illinois Retail Merchants Association, and Illinois Restaurant Association.

Affected employers have less than one year to implement new scheduling policies and train managers on these new requirements. Contact Stokes Wagner if you have any questions.

For a printable PDF of this article, click here.

On July 10, 2019, Governor Cuomo signed two new bills that expand New York State’s equal pay Labor Law § 194. These new bills specifically (1) expand the scope of New York State’s equal pay law to all protected classes and (2) prohibit employers from asking an applicant about their prior salary history.

New York State’s equal pay law originally only prohibited pay discrimination based on gender. Now, the equal pay law prohibits unequal pay on the basis of any protected class (i.e., age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and other employees and interns protected under the New York State Human Rights Law). The equal pay act also lowers the bar for employees bringing equal pay claims by requiring that employers provide equal pay – not just for “equal work,” but for “substantially similar work” as well.

New York State employers are now also barred from asking prospective employees or applicants about their past salary history and compensation during the hiring process. Keep in mind that the equal pay law does not prevent an employee from voluntarily disclosing their salary or wage history, nor does it prevent employers from asking an applicant what their salary expectations are. However, employers are now prohibited from asking for or considering an applicant’s salary history when deciding (1) whether to make an offer of employment or (2) what the employee’s compensation should be.

New York is not the first state to implement statewide equal pay legislation, and it will not be the last. All employers should use this opportunity to conduct a payroll audit and, if necessary, re-visit their internal policies against pay discrimination. Employers should further ensure that all managers, supervisors, or other individuals involved in compensation and hiring decisions are informed and properly trained on company policies against pay discrimination.

If you have any questions, please contact Stokes Wagner. For a printable PDF of this article, click here.

The Equal Employment Opportunity Commission (“EEOC”) announced that it will be collecting data on pay and hours worked from 2017 and 2018. The deadline for employers to submit this information to the EEOC is September 30, 2019.

What does this mean? Employers with 100 or more employees must submit employee data on (1) pay and (2) hours worked (also referred to as “Component 2 Data”) from 2017 and 2018 to the EEOC no later than September 30, 2019. To determine if an employer meets the 100-employee threshold for 2017 or 2018, count the number of employees during the workforce snapshot period for the corresponding reporting year.

Didn’t employers just submit EEO-1 information in May? Yes, employers with 100 or more employees likely just summitted an EEO-1 form (via the online portal) which included demographic data (race, ethnicity, and sex) across 10 job categories (Component 1).

Where do employers submit this information? Employers must submit Component 2 data (pay and hours worked) through the EEOC’s online portal under “Section D – Employment Data.” The EEOC expects the online portal (available here) to be active by mid-July 2019.

How do employers collect this data? Employers should take the following steps for each reporting year (2017 and 2018):

  1. Identify the “workforce snapshot period,” a single pay period of an employer’s choice between October 1 and December 31 of the EEO-1 reporting year.

  2. Identify the employees who worked during the workforce snapshot period.

  3. For each employee who worked within this selected period, determine the employees’ data on (1) pay and (2) hours worked. The total hours worked does not include hours worked by employees terminated before the selected workforce snapshot period or employees hired after the selected period. For a guide to pay and hours worked, click here.

  4. Combine the individual pay and hours data and report the data in boxes by race, ethnicity, and sex in each of the 12 pay bands, within each of the 10 job categories. If there is no data for a particular box, the box will be left blank.

Is there a chance that the data on pay and hours worked requirements will be rescinded or stayed? Yes, a slight chance. On May 3, 2019, the Department of Justice filed a Notice of Appeal to rescind these obligations. However, the filing of this Notice of Appeal did not stay the district court order or alter EEO-1 employers’ obligations to submit this Component 2 data. EEO-1 filers should still prepare to submit the Component 2 data as described above.

Whom can employers contact for help? Stokes Wagner is happy to help! However, in case you need direct assistance from the EEOC, here is the EEOC’s contact information and a link to the EEOC’s Frequently Asked Questions.

Does your company still perform background checks on employees? If you answered yes, then the Ninth Circuit’s recent ruling on background check disclosures applies and you should review your company’s background check disclosures immediately.

The Fair Credit Reporting Act (“FCRA”) requires employers to provide each applicant with a “clear and conspicuous” disclosure that the employer will perform a background check on the applicant. This disclosure must be a standalone document that is separate and distinct from any other application paperwork. Employers can include some minor additional information in the notice, like a brief description of the nature of background reports, but only if it does not confuse or detract from the notice. Various states also have particular disclosure requirements in addition to the FCRA. Often, the various state disclosures are included in the same “standalone” FCRA disclosure document on forms provided by consumer reporting agencies.

In Gilberg v. Cal. Check Cashing Stores, the Ninth Circuit clarified that the FCRA “standalone disclosure” requirement prohibits inclusion of state-specific disclosures on the same form. The court considered forms used by Cal. Check Cashing Stores, which included multiple state and federal disclosures all within the same document, and concluded that the disclosure violated both federal and California law. The Ninth Circuit clarified that “standalone” under the FCRA means that the disclosure form consists solely of the FCRA disclosures that apply to that applicant. Including notices for various states that do not apply, or including the disclosure form in an application packet, is likely to confuse the applicant, and violates the FCRA and California’s Investigative Consumer Reporting Agencies Act.

To comply with the FCRA, a background disclosure must include a disclosure that the consumer report may be used for employment purposes. The disclosure may also ask for the applicant’s basic identifying information, and require their signature authorizing procurement of an investigative report. However, including extraneous information, such as state-specific disclosures, or requesting applicant input other than basic identifying information, violates the FCRA. While the Ninth Circuit does not explicitly prohibit including all state notices, even applicable state-specific disclosures (in this case, CA), we recommend keeping all state-mandated disclosures separate from the FCRA disclosure.

We recommend that employers review their current disclosure forms or any disclosure forms they receive from third-party background check agencies to ensure they meet the “standalone disclosure” requirement. If the background check disclosure form includes information regarding other state disclosures, or if the form is provided to applicants as part of an application packet, the form likely violates the FCRA and should be modified immediately.

For a printable PDF of this article, click here.

The National Labor Relations Board’s recent ruling in SuperShuttle DFW, Inc. returns to a longstanding standard in evaluating proper independent contractor classification. Although its scope is limited, the recent ruling eases restrictions on proper independent contractor classification for purposes of unionization rights under the NLRA, specifically where the workers’ role involves “entrepreneurial opportunity.”

The case involved the issue of whether franchisees of shuttle-van drivers at Dallas-Fort Worth Airport qualified as employees or independent contractors. Amalgamated Transit Union sought to represent a group of SuperShuttle DFW drivers as employees. SuperShuttle representatives emphasized that because the franchisees do not share fares with SuperShuttle and operate their vehicles with little control, the franchisees have total autonomy over their work, thereby classifying them as independent contractors and exempt from the National Labor Relations Act.

By a 3-1 party-line vote, the Board ruled that the franchisee shuttle van drivers for SuperShuttle were independent contractors under the common law test. In doing so, the Board further held that entrepreneurial opportunity, like employer control, is a principle by which to evaluate the overall effect of the common law factors.

The decision reverses the Board’s prior ruling in FedEx Home Delivery, where the Board found that a worker’s “entrepreneurial opportunity” was merely a consideration as part of the broader factors under the common law test. This test considers any constraints placed on an employee’s ability to conduct an independent business.

The Board affirmed, finding that the franchisees’ ownership (or lease) and control of their vans, the nearly unfettered control over their daily work schedules and working conditions, and the method of payment by a monthly fee all weighed in favor of independent contractor status. The combination of these factors demonstrated that the franchisees are provided with significant entrepreneurial opportunity and control over how much money they make each month.

While the Board’s reemphasis on “entrepreneurial opportunities” does not affect contract employees in California, which has its own independent contractor test for state law wage and hour purposes , these same individuals may be considered exempt from coverage by the NLRA. Nonetheless, this decision comes as good news for companies that prefer to use contract labor by allowing for more factual inquiry into a worker’s entrepreneurial opportunity in determining his or her employee status for the purposes of unionizing.

For a printable PDF of this article, click here.

As employer-provided rideshares and shuttles grow in popularity, employers often ask whether their employees should be paid for their time spent on company-provided transportation. A California appellate court recently affirmed a long-standing rule that, so long as the employer-provided shuttle is optional, the time spent on a company-provided vehicle does not count as “hours worked” and is not compensable.

In Isreal Hernandez v. Pacific Bell Telephone Company, Pacific Bell provided an optional “Home Dispatch Program” for employees who travel between customers’ homes to install and repair video and internet services. Importantly, the program provided employees with the option to drive a company vehicle straight home after their last visit to a customer’s residence. The employees later sued Pacific Bell for unpaid wages, alleging that their time spent in the company vehicles constituted hours worked.

California defines “hours worked” as time “during which an employee is subject to the control of an employer” and time that “an employee is suffered or permitted to work.” The employees argued that they were subject to Pacific Bell’s control as there were multiple restrictions on their use of the company vehicle (i.e., employees could only drive authorized passengers, employees could only use the company vehicle for company business). The employees also argued that they were “suffered or permitted” to work as, by driving the company vehicles, they were transporting the tools and equipment necessary for their job.

The court in Isreal Hernandez disagreed with the employees’ arguments and concluded that the employees were not owed wages for time spent in the company-provided vehicles. The court reasoned that (1) employees are not subject to the control of their employer when using an optional company vehicle to commute to/from work, and (2) similar to employees who carry a laptop or briefcase to/from work, carrying tools and equipment in a company vehicle did not require work or extra time and thus, did not suffer or permit the employees to work. The court’s decision is not only consistent with prior California court decisions, but also reminds employers of the importance of assessing whether company-provided transportation is “optional” or a necessity.

For a printable PDF version of this article, click here.

San Francisco implemented critical amendments to its “Ban-the-Box”, or “Fair Chance Ordinance” (“FCO”). These amendments went into effect on October 1, 2018. The following amendments bring San Francisco’s FCO closer in line to California’s statewide Ban-The-Box regulations:

  • The FCO applies to employers located or doing business in San Francisco in San Francisco with 5 or more employees located anywhere. (Previously, the FCO applied to employers located or doing business in San Francisco with 20 or more employees.)
  • Employers may only ask about an applicant’s criminal convictions after making a conditional job offer of employment. (Previously, employers could ask about an applicant’s criminal history either after a live interview or after a conditional offer is made.)
  • Employers may not ask, or inquire about, require disclosure of, or base employment decisions on a conviction for a crime that has been decriminalized. A “decriminalized crime” includes the non-commercial possession, use and cultivation of marijuana.
  • San Francisco employers must replace its old FCO poster with this poster as soon as possible, if they haven’t done so already.

Also, the FCO amendments impose greater penalties and risk of liability for violations:

  • Employers’ fines and penalties have increased to: $500 per impacted person for the first violation, $1,000 for a second violation and up to $2,000 for any violations thereafter.
  • Applicants and employees can now sue employers in state court for violating the FCO. (Before: Only the City Attorney could sue employers for FCO violations).

Berkeley Minimum Wage Increase On October 1, 2018, Berkeley’s minimum wage rate increased from $13.75 per hour rate to $15 per hour. Berkeley’s Minimum Wage Ordinance requires employers to pay a local minimum wage to any employee who works at least two hours in one calendar week within the geographic boundaries of the city of Berkeley.

Please note that Berkeley’s minimum wage rate will increase again in less than a year. Starting on July 1, 2019, and each July 1 thereafter, the minimum wage will increase by the prior calendar year’s increase, if any, in the regional Consumer Price Index (CPI).

For a printable PDF version of this article, click here.

In April 2018, Governor Cuomo of New York signed a set of laws aimed at combating sexual harassment in the workplace. New York employers must (1) provide all employees with written policies describing employee protections against sexual harassment and (2) conduct annual sexual harassment prevention trainings with all employees.

Policies: At a minimum, employers must provide policies in the language spoken by the employees and the policies must:

  • Prohibit sexual harassment;
  • Explain and provide examples of unlawful sexual harassment;
  • Clearly state that sexual harassment is considered employee misconduct and that sanctions/progressive discipline will be enforced against individuals engaging in sexual harassment and against supervisory/managerial employees who knowingly allow such behavior to take place/continue;
  • Discuss federal, state, and local law protections and remedies available for victims of sexual harassment;
  • Include an internal complaint form;
  • Describe the employer’s policy for investigating of complaints;
  • Inform employees about their rights of redress and external remedies, such as administrative and judicial remedies; and
  • Clearly state that retaliation against individuals who complain of sexual harassment, or who testify or assist in any investigation or proceeding involving sexual harassment, is unlawful.

Trainings: Starting October 9, 2018, employers must annually provide interactive sexual harassment prevention trainings to all employees. Employers must complete the first round of trainings by January 1, 2019.

Employers should provide trainings in the language spoken by the employees. At a minimum, trainings must:

  • Be interactive, engage the employees and allow opportunities to participate;
  • Explain and provide examples of behavior that constitutes unlawful sexual harassment;
  • Discuss federal, state, and local law protections and remedies available for victims of sexual harassment;
  • Inform employees of their rights of redress and external remedies, such as administrative and judicial remedies; and
  • Address conduct by supervisors/managers and any additional responsibilities for supervisors/managers.

Arbitration Agreements: Finally, the new laws also include a provision that prohibit sexual harassment claims from being subject to arbitration agreements. Arbitration provisions in collective bargaining agreements are exempt from this provision.

Are you in New York City? New York City recently passed a similar set of laws requiring employers to post a sexual harassment rights and responsibilities poster in English, Spanish, and other languages spoken by employees by September 6, 2018. Also, as of September 6, 2018, employers must provide all new employees with information about sexual harassment protections in the workplace, such as this fact sheet in English and Spanish developed by the New York City Human Rights Commission (NYCHRC), or a handbook policy containing the same information.

The training provisions in the state and local laws are mostly similar; however, local NYC laws require employers to discuss “bystander” intervention in harassment situations. Additionally, employers will be required to keep records of trainings for three years. Records should include a signed employee acknowledgement of receipt of training. The training provisions of the NYC’s laws go into effect on April 1, 2019.

See the PDF version of this article to read our chart summarizing the similarities and differences between the training provisions of the New York state and New York City local laws. If you have any questions about sexual harassment or other anti-discrimination policies, trainings, or arbitration agreement provisions, please do not hesitate to reach out to us at Stokes Wagner.

California hotels must display a human trafficking notice in a visible location near the public entrance or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted.

Please click here for the “model notice” provided by the State of California, or here for a Spanish version. Properties may also create their own notice so long as the notice is (1) at least 8.5 x 11 inches, (2) size 16 font, and (3) contains the following language:

“If you or someone you know is being forced to engage in any activity and cannot leave – whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity – call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services. Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are:

  • Available 24 hours a day, 7 days a week.
  • Toll-free.
  • Operated by nonprofit, nongovernmental organizations.
  • Anonymous and confidential.
  • Accessible in more than 160 languages.
  • Able to provide help, referral to services, training, and general information.”

If Spanish is a predominant language at your property, the notice must also be displayed in Spanish. Properties who fail to post this notice is subject to a $500 fine for the first offense and $1,000 for each subsequent offense.

For a printable PDF of this article, click here - and be sure to check out more updates in our Stokes Wagner Quarterly Legal Update!

Starting August 30, 2018, California hotels must display additional signs warning guests of chemicals that can cause cancer, birth defects, or other reproductive harm. Proposition 65 requires California hotels to display warning signs to guests at or before check-in and throughout designated areas within a hotel (restaurants, where alcoholic beverages are served, designated smoking areas, etc.).

Each warning sign has specific requirements as to its contents, font size, and display location. Please contact Stokes Wagner to provide you with a more detailed explanation of the warning signs required for your property.

For a printable PDF of this article, click here. Stokes Wagner also provides a rundown of poster guidelines for hotels and more updates in our Stokes Wagner Quarterly Legal Update!

California’s Division of Occupational Safety and Health (“Cal-OSHA”) has approved new regulations to prevent workplace injuries to those working in the housekeeping and hospitality industry.

In 2012, UNITE HERE! petitioned Cal-OSHA to create regulations that address occupational housekeeping hazards. These recently approved regulations require hotels to create and implement a housekeeping safety program and conduct periodic trainings that involve room attendants and, where applicable, their Union representatives.

**What does this mean for you? ** While California has not yet finalized the proposed regulations, hotels will likely need to comply with the following requirements in the near future:

(1) Musculoskeletal Injury Prevention Program (“MIPP”): Employers must develop a written program that evaluates each housekeeping task to identify potential hazards. The MIPP may be incorporated into the hotel’s existing written Injury and Illness Prevention Program (“IIPP”), or may be maintained as a separate program, and must be accessible to employees.

  • What does the MIPP include?
    • Names or job titles of those responsible for implementing the MIPP;
    • System that ensures supervisors and employees comply with the MIPP;
    • System for employee communication, including provisions designed to encourage employees to inform the hotel of hazards without fear of reprisal; and
    • Procedures to investigate injuries in a timely manner, which will require the input of the employee’s supervisor and union representative, if any.

(2) Annual Worksite Evaluations: Employers must conduct annual evaluations that assess housekeeping tasks and safe practices, to minimize injuries including, but not limited to, slip, trips, and falls, prolonged or awkward static postures, extreme reaches and repetitive reaches above shoulder height, lifting or forceful body exertions, etc.

Hotels are required to involve housekeepers and their union representative, if any, in designing and conducting this worksite evaluation.

  • When? Hotels must conduct the worksite evaluation within 3 months after the effective date of this law or after the opening of a new hotel.
  • Updates? The worksite evaluation must be updated annually thereafter or whenever new practices, procedures, equipment, or renovations of guest rooms are introduced such that it will change or increase housekeeping standards.
  • Notice? Hotels must then post the results of the evaluation in a conspicuous location or notify room attendants of the results in writing.

(3) Trainings: Hotels must train employees and supervisors on the MIPP. This training must be provided in a language easily understood by those employees. Trainings must include an explanation of the employer’s MIPP, process for reporting safety and health concerns, practice regarding the use of equipment and tools, and an opportunity for questions and answers.

When? The Hotel must conduct trainings when the MIPP is first established and annually thereafter. The Hotel must also conduct trainings when new room attendants or supervisors are hired, when room attendants are given new job assignments, and when new equipment, workplaces, or new potential hazards are introduced.

(4) Notice and Record Retention:

  • a. Hotels must keep a copy of the MIPP and evaluation results available for review by employees and their Union representatives, where applicable.
  • b. Hotels must create a record of the steps taken to implement and maintain the MIPP.

Stokes Wagner will notify you when these regulations are finalized and the date the regulations become effective. Given that Cal-OSHA has already approved these regulations, we recommend that you start to review your current safety housekeeping practices and determine what new steps are necessary to comply with the above requirements.

As always, Stokes Wagner is here to review your written safety programs or answer any questions that you may have. For a printable PDF of this information, click here.

City of Los Angeles

The City of Los Angeles announced its Citywide Hotel Worker Minimum Wage increase, which applies to hotels in the City of LA with 150 or more rooms. Starting July 1, 2018, hotels within the City of LA with 150 or more rooms must pay its employees at least $16.10/hour (previously $15.66/hour), as noted in 2018.5.23-CA.Legal.Alert.Min.Wage.Rate.pdf.

City of Santa Monica

Santa Monica’s Hotel Worker Minimum Wage Ordinance also increases on July 1, 2018, which applies to all hotels in the City of Santa Monica. Starting July 1, 2018, all hotels in the City of Santa Monica must pay its employees at least $16.10/hour.

Please note one key difference between Santa Monica and the City of LA’s Hotel Minimum Wage Ordinances: Santa Monica’s Ordinance applies to all hotels, regardless of the number of rooms, whereas the City of LA’s Ordinance only applies to rooms with 150 or more rooms.

The National Labor Relations Act (NLRA) protects the employee right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” This includes not only the right to support a union, but also simply the right of employees to converse among themselves on issues affecting their employment. Consequently, any workplace rule explicitly infringing on this right, as well as any rule applied so as to cause such infringement, can be held unlawful. For example, if employees regularly get together before or after work, during which gripes and grievances (or unions) can be discussed, a workplace rule restricting these gatherings will generally be held unlawful.

Facially neutral rules which do not explicitly prohibit concerted activities, pose a special problem. Under previous administrations, the National Labor Relations Board struck down a wide range of such rules, if the rule in question could be “reasonably construed” by employees to discourage them from concerted activities. In a 2016 case Beaumont Hospital, the Board struck down a rule calling for “harmonious interactions and relationships,” while also prohibiting “negative or disparaging comments” aimed at other employees. Philip Miscimarra issued a dissent, stating there was no evidence “that the requirement of ‘harmonious’ relationships actually discouraged or interfered with NLRA-protected activity.” Moreover, “All employees in every workplace aspire to have ‘harmonious’ dealings.”

Under the current administration, the Board reversed Beaumont Hospital this past December. Following Miscimarra’s Boeing Company opinion, the Board will now give significantly more weight to the “business justifications” asserted for facially neutral rules.

What does this mean for you? While this will continue to be balanced against “invasions of employee rights,” and will involve fact-intensive, case-by-case decisions, employers can now look forward to more favorable rulings from the Board in this area of concern. Employers should keep their ears open for changes and new decisions, and consult Stokes Wagner with any concerns regarding infringement on the NLRA.

For more legal news, check out our quarterly newsletter for April 2018!

In 2011, the U.S. Department of Labor (“DOL”) introduced regulations affirming that tips are the property of the employee regardless if the employer uses a tip credit under the FLSA. Under this framework, only “customarily tipped employees” can receive distributions from a company tip pool. Tip pools set up by employers to include employees who are not regularly tipped employees are invalid. This limitation applies even where the employees contributing to a tip pool are paid the applicable minimum wage. Moreover, employers and management staff are precluded from receiving any portion of tip pools under the current regulation. The 2011 regulation has led to voluminous litigation over what constitutes a “customarily tipped employee” and has resulted in inconsistent rulings from various courts.

The DOL under the Trump administration has proposed a change to the 2011 regulation that would eliminate many of the restrictions on an employer’s use of tip pools. The proposed change would allow employers to include non-tipped employees in tip pools, including back-of-house employees who have little to no interaction with customers and even management staff or business owners.

What does this mean for you? The proposed regulation would apply only to employers who pay its tipped employees at least the federal minimum wage. Employers who continue to take advantage of the tip credit and pay tipped employees lower than the minimum wage would still be subject to the 2011 regulation’s restrictions on sharing of tips.

The DOL’s public comment on the proposed changes to the 2011 regulation closed in February 2018, and the DOL is expected to present a proposed regulation in the coming months. Stokes Wagner will keep you updated. Stay tuned!

For more legal news, check out our quarterly update for April 2018!

The newest trend in Americans with Disabilities Act (“ADA”) lawsuits target businesses’ websites. Litigants have increasingly sued or threatened to sue under Title III, alleging that the website is not sufficiently accessible to the disabled (i.e., the website lacks assistive technology for individuals who are blind or hearing-impaired).

Litigants commonly point to the international “Web Content Accessibility Guidelines (WCAG) 2.0 AA” as the standards that a website must meet to ensure that the website’s content and features are sufficiently accessible to all individuals. These guidelines have not yet been adopted by the Department of Justice (“DOJ”), which issues ADA’s formal regulations. Moreover, the Trump Administration recently moved the ADA website regulations onto the “inactive” list and it is unlikely that the DOJ will address these regulations in the near future. This means that WCAG are simply guidelines and not yet law.

The uncertainty and lack of regulations will not stop or discourage a plaintiff from sending your business a demand letter or even filing a lawsuit. It is also unclear how a court will rule. In 2017, a Florida District Court ruled against Winn Dixie, finding that their website violated Title III of the ADA by having an inaccessible website. The Court further held that the $250,000 cost to remediate Winn Dixie’s website was not an undue burden and ordered Winn Dixie to make its website conform with WCAG Guidelines 2.0 AA. That same year, a California federal court went in another direction and dismissed a lawsuit against Domino’s Pizza finding the failure of the DOJ to issue clear guidelines for website compliance violated defendant’s due process rights.

What does this mean for you? Businesses should reach out to their web designers to ensure that their website design ensures conformity with WCAG 2.0 AA criteria, even if such guidelines are not yet law. Businesses should also consider reviewing their agreements with web designers/developers and decide whether compliance with WCAG 2.0 AA criteria should be included in those agreements.

For more legal news, check out our quarterly update for April 2018!

The Trump administration has been ordered to accept new applications for Deferred Action for Childhood Arrivals (“DACA”) benefits.

On April 24, 2018, a federal judge of the Federal District Court for the District of Columbia has held that the Trump Administration’s reasons for rescinding DACA were “arbitrary and capricious.” The court has given the Department of Homeland Security (“DHS”) ninety (90) days to better explain its decision to rescind the DACA program. If the DHS fails to sufficiently respond, the judge will reverse rescission of the DACA. The DHS will be required accept and process new as well as renewal DACA applications.

Federal judges in California and New York have also blocked the administration’s plans to rescind DACA and have ordered the DHS to accept applications for the renewal of DACA benefits. However, this recent Order went even further, ordering the administration to accept renewals and new applications for DACA benefits.

What does this mean for you?

Employers should ensure that they stay up-to-date with updates on DACA benefits, especially as they conduct I-9 Form Audits and review their employees’ work authorization documents.

Click here for a PDF version of this article.

Stokes Wagner recommends that you review and update your employee handbooks annually. Below is a list of policies and procedures for you to consider adding in your respective employee handbooks (each policy is only a recommendation, unless specified otherwise):

  1. Drug Testing / Alcohol and Drugs in the Workplace Policy. Specify whether marijuana (recreational and/or medicinal) is prohibited in the workplace.

  2. Employee’s Day of Rest. Non-exempt and exempt employees are entitled to one day (or 24 hours) of rest per workweek unless the employee works consistent shifts of 6 hours or less.

  3. Discrimination & Harassment, Sexual Harassment Policies. A stand-alone policy with its own acknowledgment form is required for all employers. This policy should be revised to include an employee’s right to a harassment-free workplace based on an employee’s gender, LGBQT status, gender identity, or gender expression.

  4. Grooming Standards Policies. Employers may not require employees to dress in a manner that does not conform with the employee’s gender identity or expression.

  5. Paid Sick Leave (“PSL”). Review PSL policies to ensure compliance with local and/or state regulations.

  6. Protected Leave for Victims of Domestic Violence, Assault, Stalking (A separate flyer/notice to current employees and new employees upon hire is required)

  7. California Parental Leave Act (only applies to employers with 20-49 employees)

  8. **Addressing Violence and Weapons in the Workplace **
  9. Hiring Practices. An employer may not ask or consider an applicant’s gender or prior salary in hiring decisions. This is not necessary for the employee handbook but should be considered when auditing your new hire packet.

  10. Lactation in the Workplace (This policy is required for San Francisco employers)

Click here to download a PDF version of this article for printing.

To better protect hotel workers against sexual harassment and assault, Chicago passed the “Hands Off Pants On” Ordinance. The Ordinance requires Hotels in the City of Chicago to adopt (1) a “panic button” system and (2) anti-sexual harassment policy.

I. Panic Button System

By July 1, 2018, hotels must provide employees who work alone in guest rooms or restrooms with a “panic button” or other notification device, at no cost to the employees. The device must be a “portable emergency contact device” that allows employees to alert and summon hotel security or management for help in the event the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault, or other emergency is occurring in the employee’s presence.

In implementing these new “panic button” systems, Hotel employers should be prepared to provide training to employees regarding how to use the devices and respond to alerts.

II. Anti-Sexual Harassment Policy

By January 7, 2018, hotels must develop, maintain, and comply with a written anti-sexual harassment policy designed to protect employees against sexual assault and sexual harassment by hotel guests.

The Policy must:

  1. Encourage employees to immediately report instances of alleged sexual assault and sexual harassment by guests;

  2. Describe the procedures that the employee and hotel will follow in response to such reports;

  3. Instruct employees to stop working and immediately leave the area of the perceived danger until hotel security or the police arrive to provide assistance;

  4. Offer temporary work assignments to the complaining employee for the duration of the offending guest’s stay at the hotel;

  5. Provide employees with paid time off to file any appropriate police reports or testify as a witness in any legal proceedings arising from the incident;

  6. Inform employees that the Illinois Human Rights Act, Title VII of the Civil Rights Act of 1964, and the Chicago Human Rights Ordinance provide additional protections against sexual harassment in the workplace; and

  7. Inform employees that they will not be retaliated against for reasonably using a panic button or notification device.

No Retaliation The new law makes it unlawful for hotels to retaliate against employees for reasonably using a panic button or notification device, or otherwise disclosing, reporting, or testifying about any violation of the Ordinance. Employees can file complaints alleging violations of the Ordinance with the Chicago Commission on Human Relations.

Violation Penalties

  • Hotels that commit two or more violations of this Ordinance in any 12-month period are subject to having their license suspended or revoked by the City.

  • Hotels may also incur between $250 and $500 in daily fines for each violation of the Ordinance.

For a PDF version of this Legal Update, click here. If you have questions, contact Stokes Wagner.

Governor Brown, Jr., recently signed five employment bills into law that affect all California employers. The following laws are effective starting January 1, 2018.

Small Businesses Must Now Provide Paid Parental Leave (SB 63) Small businesses (20-49 employees) must provide 12 weeks of unpaid parental baby bonding leave to employees. If an employee takes this leave, an employer must maintain and pay for health care coverage. Employers can be sued for failing to provide the leave, failing to return the employee to the same or comparable position after the leave, failing to maintain benefits while the employee is out on leave or taking adverse employment action against an employee who uses the leave.

Employers May No Longer Ask About Prior Salary on Job Applications (AB 168) Employers may not ask about, or consider, an applicant’s prior salary history in determining whether to hire the applicant or how much to pay the applicant. Employers may also be penalized for not providing a pay scale for the position upon demand.

Ban-the-Box Legislation Now Applies to All California Employers (AB 1008) Employers with 5 or more employees may not inquire or consider an applicant’s conviction history at any time before making a conditional offer of employment. California has officially banned the box on applications. An employer may not deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment.

New Requirements for Mandatory Sexual Harassment Prevention Training (SB 396) Employers with 50 or more employees must include information on gender identity, gender expression, and sexual orientation in their sexual harassment prevention trainings.

*Notice Requirement – Employers must also display a workplace poster on transgender rights: * English // Spanish

Employers Must Provide Additional Protections to Immigrant Workers (AB 450) Employers may not provide federal immigration enforcement agents (“ICE” agent) access to a business records without a warrant. Employers must also notify its employees of Form I-9 inspections performed by federal immigration enforcement officials.

Download a PDF version of this update by clicking this link.

California’s Division of Occupational Safety and Health (“Cal-OSHA”) recently increased its penalties in response to Federal OSHA’s increased penalty hikes last year.

These new penalties apply to all citations issued on or after September 14, 2017.

• Regulatory Violations: permit, posting, record-keeping, and reporting violations.

• General Violations: violations that are not serious in nature, but relate to employees’ occupational safety and health.

• Serious Violations: violations that create a realistic possibility of death or serious physical harm to employees.

New fines will also have a cost-of-living component that will entail annual increases starting January 1, 2018.

If you have any questions on whether you are complying with California’s Health and Safety codes, please contact Stokes Wagner.

California Increases Employer Penalties for Cal-OSHA Violations

Local 25 Teamsters (Union) were recently acquitted of charges of conspiracy to extort and attempted extortion. In June 2014, the Teamsters allegedly slashed tires, used sexist and racist slurs, and threatened to “bash” celebrity host Padma Lakshmi’s “pretty little face in.”

Federal prosecutors accused the Union members of trying to shut down the filming if the show did not hire Teamsters to drive production vehicles. The prosecutors specifically had to prove that the Teamsters’ labor objectives, however egregious their actions, were illegitimate.

In U.S. v. Enmons, 10 U.S. 396 (1973), the Supreme Court held that union members on strike could not be prosecuted for extortion if they had legitimate labor objectives. The Court reasoned that “objectives” is based on the members’ intent and “illegitimate goals” can include unwanted, unneeded and superfluous work. Using this precedent, the Unions’ lawyers successfully defended the Union and proved that, although the men may have used rough language or engaged in behavior that might have seemed threatening, their actions were legal under federal law.

This acquittal exemplifies unions’ strong protections under federal criminal law despite union members’ violent and threatening behavior. Due to U.S. v. Enmons and the standard to prove “legitimate labor objectives,” federal jurors have little room in their ability to hold union members accountable for their actions.

For more legal updates, check out our update for September 2017!

Effective 3/13/2017, San Jose employers must offer additional hours of work to current part-time employees before agreeing to hire additional, outside workers. These current part-time employees must in “good faith and reasonable judgment” have the necessary skills and experience to perform the work. Employers are not required, however, to offer hours to part-time employees if doing so would require overtime pay.

What does this mean for you?
San Jose employers should create a policy that communicates its offer of additional hours to existing employees and documents the process in writing. Examples:

  • Post additional hours in a visible place where any employee can see;

  • Post additional hours in any languages spoken by at least 5% of the employees and include timeline for employees to respond to additional hours;

  • Email offers of additional hours;

  • Individually meet with employees and offer additional hours; and/or

  • Have part-time employees indicate their interest or lack of interest in additional hours.

More information can be found by clicking here. Please contact Stokes Wagner with any questions.

For more legal updates, check out our update for September 2017!

Employees who sue for unpaid wages can either file (1) a civil lawsuit or (2) a wage claim with the Division of Labor Standards and Enforcement (“DLSE”). An employee who files a wage claim with the DLSE may participate in a settlement conference with his/her employer. If the case does not settle, the DLSE will set the case to an administrative hearing, known as a “Berman Hearing”. Berman Hearings are mini, informal trials with a Labor Commissioner. Berman Hearings, compared to civil lawsuits, are designed to provide a speedy, informal, and affordable method for employees and employers to resolve wage claims.

In OTO, LLC v. Kho, the Court enforced an arbitration agreement that required an employee to arbitrate his wage claim rather pursue his claim through a Berman Hearing. The Court reasoned that, arbitration still provided an “accessible and affordable” forum for the employee as the employer would pay arbitration costs and the employee still had access to legal representation.

What does this mean for you? Employer arbitration agreements may now compel employees to arbitrate their wage claims rather than go through a DLSE hearing. Please contact Stokes Wagner if you have any questions regarding arbitration agreements.

For more legal updates, check out our update for September 2017!