Katherine A. Ellis
Katherine A. Ellis
Associate Attorney, Los Angeles, CA
Formerly: Hostess, Server, Front Desk Clerk
Education
  • B.A., International Relations and Government, Sweet Briar College, VA;
  • J.D., University of La Verne College of Law, CA.

From a young age, I always knew I wanted to be a lawyer. Although I didn’t meet any real-life lawyers until after graduating from high school, I somehow just knew it was the field for me. My working background is a kaleidoscope of experiences: working a hotel front desk, answering phones on Capitol Hill, hosting and serving at restaurants, fundraising for non-profits, and knocking on doors for political campaigns.

All of my experiences, however, cultivated in chasing my childhood dream of arguing motions in court and seeing trials to verdict. The diversity of my experience has made me adaptable and nimble and given me the insight to creatively resolve not only legal challenges but human ones too.

When I’m not on the clock, I love going to the movies. The countdown to awards season is about as exciting as Christmas for me—and I love Christmas! I like parties large and small, Dodgers and Lakers games, and outings with friends. Most of all, I cherish the company of my family and Sami, our senior beagle rescue.

On March 19, 2021, Governor Gavin Newsom signed into law SB 95, providing supplemental paid sick leave for COVID-related leaves and absences. The supplemental paid sick leave requirements apply in addition to previous paid time off requirements, such as statutory paid sick leave or vacation time provided by the employer. Although the statute requirements do not begin until March 29, 2021, the requirements will apply retroactively to January 1, 2021, and are effective through September 30, 2021. Employers should move quickly to examine and revise their policies, practices, and payroll records for compliance.

Covered Employers and Employees: Covered employees who work full time, including those who worked or were scheduled to work, on average, at least 40 hours per week for the employer in the two weeks preceding the date the covered employee takes COVID-19 supplemental paid sick leave, may receive up to two weeks or 80 hours of COVID-19 supplemental leave.

A covered employee who is not considered full-time, but has a normal weekly schedule, may receive the total number of hours the covered employee is typically scheduled to work for the employer over two weeks.

If a covered employee works variable hours, they may receive 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee takes COVID-19 supplemental paid sick leave. However, if the covered employee worked for the employer for less than six months but more than 14 days, this calculation shall instead be made over the entire period the covered employee has worked for the employer.

If the covered employee works a variable number of hours and has worked for the employer over a period of 14 days or less, the employee may receive the total number of hours that they have worked for the employer.

The total number of hours under COVID-19 supplemental paid sick leave is in addition to any paid sick leave that may be available under existing law. The amount of leave or compensation given to an employee may be offset from leave or other benefits given to that employee on or after January 1, 2021, that would now be covered under this law. This offset does not extend to benefits provided by other required sick leave, such as under the Healthy Workplaces, Healthy Families Act.

Reasons for Leave: Employees may use supplemental paid sick leave if they are unable to work or telework for the following reasons:

  • Employee is subject to a quarantine or self-isolation period related to COVID-19 as defined by federal, state, or local orders;
  • Employee is advised by a health care provider to self-quarantine due to COVID-19-related concerns;
  • Employee is attending an appointment to receive a COVID-19 vaccine;
  • Employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
  • Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis;
  • Employee is caring for a family member who is a subject to a quarantine or self-isolation order or has been advised by a health care provider to self-quarantine due to COVID-19-related concerns;
  • Employee is caring for a child whose school or place of care is closed or otherwise unavailable on the premises for reasons related to COVID-19.

Rate of Pay: Each hour of COVID-19 supplemental paid sick leave for nonexempt employees is compensated based on the highest pay rate equal to the following:

  1. Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses COVID-19 supplemental paid sick leave;
  2. Calculated by dividing the total wages, not including overtime premium pay, by the total hours worked, in the full pay period of the prior 90 days worked;
  3. State minimum wage; or
  4. Local minimum wage.

For exempt employees, the COVID-19 supplemental paid sick leave is calculated in the same manner as the employer calculates wages for other forms of paid leave time.

All covered employees will be compensated based on the regular rate of pay pursuant to existing law or collective bargaining agreement. The compensation shall not exceed $511 per day or $5,110 in total, unless federal legislation is enacted to increase these amounts.

Employer Obligations: Like with supplemental COVID-19 paid sick leave released last year, SB 95 requires supplemental paid sick leave to be available on employee paystubs. Specifically, the law requires supplemental paid sick leave and regular statutory paid sick leave to be displayed separately on the paystub.

The state has also released a model poster, which employers must display conspicuously in the workplaces or distribute to employees electronically. This poster is available on the Department of Industrial Relations website here.

Other Notable Provisions: SB 95 provides employees with the sole discretion to determine how many supplemental paid sick leave hours they need to use. Employees may also choose whether to use supplemental paid sick leave or a different leave benefit provided by the employer or by the law. Employees may use the supplemental leave immediately and need only make an oral or written request to do so.

When an employee is excluded from the workplace under the COVID-19 Emergency Temporary Standards, an employer may require them to first exhaust their available supplemental paid sick leave before the employer will maintain their earnings. These are only suggestions, and employers should carefully draft their vacation policies with express and clear employer and employee obligations, limitations, and conditions of eligibility in light of McPherson.

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.


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.

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.


After much confusion sparked by a press release from the Los Angeles County Department of Public Health earlier this week, LACDPH just issued its second Revised Temporary Targeted Safer at Home Health Officer Order in less than 24 hours.

This Revised Temporary Order (“Order”) is effective 11:59 p.m. (PST) on December 30, 2020. It will remain in effect for as long as the State Regional Stay at Home Order remains in effect in the Southern California Region.

Starting December 31, 2020, anyone traveling to Los Angeles County from anywhere outside of the Southern California Region (Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura) must self-quarantine for 10 days after arrival. Such individuals must stay at home or another place of temporary shelter and away from others, including those in the same household (unless they are also under quarantine).

LACDPH also published Appendix W, a Mandatory Directive on Travel in furtherance of the State’s Travel Advisory, which provides that Californians stay home or in their Region and avoid non-essential travel and persons who arrive into any Region of California self-quarantine for 10 days after arrival. The Directive discourages non-essential travel and requires all persons traveling into Los Angeles County, whether by air, car, train, or other means, to quarantine for at least 10 days after arrival, unless specifically exempt from the mandatory quarantine requirements.

Violation of or failure to comply with the Revised Temporary Order and/or the Mandatory Directive on Travel is a misdemeanor punishable by fine ($50 to $1,000), imprisonment (90 days to 6 months), or both.

Los Angeles County employers should review their existing COVID-19 exposure response plans to ensure compliance with the Revised Temporary Order and Mandatory Directive on Travel and may wish to contact counsel for further guidance. While state and local COVID-19 regulations continue to evolve, we will continue to provide updates on the latest developments.

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.


On September 9, California Governor Gavin Newsom signed AB 1867 immediately expanding supplemental paid sick leave (“SPSL”) for COVID-19-related reasons for employers who did not qualify for Families First Coronavirus Response Act (“FFCRA”) because of size. The new law, codified as Labor Code section 248.1 (“LC 248.1”), requires compliance by September 19, 2020.

Here is what you need to know:

1. Who does this apply to? Private employers in the United States with 500 or more employees. LC 248.1 incorporates the definition of “Private Employers” as provided by Section 826.40(a)(1) and (2) of Title 29 of the Code of Federal Regulations to determine the number of employees that the hiring entity employs. Simply put, if a California employer was not required to provide FFCRA leave because it had more than 500 employees, then LC 248.1 will apply.

2. How much SPSL are employees entitled to? Employers must provide SPSL to employees as follows:

  • 80 hours for: (1) Employees classified as full-time. (2) Employees who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took SPSL.
  • If an employee does not qualify for the above, then they are entitled to the following: (1) If the employee has a normal weekly schedule, they are entitled to the total number of hours the employee is normally scheduled to work for the property over two weeks. (2) If the employee works a variable number of hours, they are entitled to 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took SPSL. (3) If the employee has worked for less than six months but more than 14 days, this calculation shall instead be made over the entire period the employee has worked for the property. (4) If the employee works a variable number of hours and has worked for the hiring entity for 14 days or fewer, they are entitled to the total number of hours the employee has worked for the property.

3. At what rate is SPSL paid? The higher of the following:

  • The employee’s regular rate of pay for the employee’s last pay period, including any applicable collective bargaining agreement.
  • The state minimum wage.
  • The local minimum wage to which the covered worker is entitled.

The regular rate of pay includes service charges, automatic gratuities, commissions, and other non-discretionary bonuses. The maximum amount the employer is required to pay mirrors the FFCRA: $511 per day, with a cap of $5,110.

4. Are furloughed employees eligible for SPSL? No. The obligation to provide SPSL only arises where the employee cannot work because they are:

  1. Subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; and/or
  3. Prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

5. Our employees have been furloughed for the last 6 months, how does this impact their SPSL entitlement? A furloughed employee’s SPSL entitlement may be affected by their full- or part-time status and/or the number of hours worked since their return from furlough.

If the employee is classified as full-time and they are returned to work and request SPSL, they are entitled to 80 hours, regardless of how long they have been back to work.

Employees not classified as full-time, who were on furlough would be eligible for the amounts based on whether they have (1) returned to their normal weekly schedule for over two weeks, (2) worked variable hours, (3) worked less than 6 months but more than 14 days; or (4) worked less than 14 days. (See Question No. 2 above.)

6. Does the law expire? Yes. The requirement to provide SPSL sunsets on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the Families First Coronavirus Response Act, Public Law 116-127, whichever is later.

7. Does SPSL roll-over? It depends on when the SPSL is requested by the employee. Employees taking SPSL at the time of its expiration, must be allowed to take the full amount they are entitled to.

For example, assuming SPSL sunsets on December 31, 2020, if an employee requests the leave on December 31, 2020, and they are entitled to 80 hours, the employee must be allowed to use the SPSL through 2021. However, if the same employee requests SPSL on January 1, 2021, and the requirement to provide SPSL has expired, the employee is no longer entitled to SPSL.

8. Does the law create any requirements for our paycheck stubs? Yes. The paystub requirement here is the same as the Healthy Workplaces Health Families Act of 2014 (i.e. the CA Paid Sick Leave statute) paystub standard. This means employers must provide employees with written notice of the amount of SPSL available. Employers must also retain records documenting the hours worked, leave provided and leave used by an employee for 3 years.

9. Can the employer require the employee use vacation or regular (state or local) paid sick leave before SPSL? No. Employers have to designate the leaves based on what the employee tells them. Employers should advise the employee of the various sick leaves and allow the employee to tell them what they want to use. Employers are expressly prohibited from requiring employees to use other paid or unpaid leave, paid time off or vacation time before they use SPSL or in lieu of SPSL. Note that SPSL requirements run concurrently with other types of leave other than regular paid sick leave.

10. I had an employee ask me for COVID related leave in August, and I let them know we are not subject to FFCRA and their leave would be unpaid, do I have to go back to this employee and pay them SPSL? No. If an employee met one of the eligibility requirements in August, and they were not provided FFCRA because the employer has 500 or more employees, the employer does not need to go back and pay the employee the 80 hours (or their equivalent entitlement.) If however, the employee became eligible for this leave in October, for example, they would be entitled to the SPSL then.

On the other hand, if the employee met one of the eligibility requirements in August, and the employer-provided SPSL even though it was not required to do so under FFCRA, then that sick pay can be counted retroactively towards the $5,110 total. In other words, if an employer-provided SPSL relating to COVID-19 on its own volition on or after March 4, 2020, and prior to the enactment of AB 1867 (September 9, 2020), then such sick pay may be retroactively counted toward the $5,110 total.

If you have any questions on ho this new law will affect you, please reach out to your Stokes Wagner representative.

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.


On August 31, 2020, the California legislature passed Senate Bill 1383, which expands the California Family Rights Act (CFRA) to allow employees to use unpaid job-protected leave to care for a domestic partner, grandparent, grandchild, sibling, or parent-in-law with a serious health condition.

Major Provisions: SB 1383 expands CFRA’s medical and family leave protections through the following statutory changes:

  • Dictates that employers with at least five (5) employees must grant an employee request to take up to 12 workweeks for family care and medical leave if the employee has had at least 1,250 hours of service with the employer.
  • Expands the definition of “family care and medical leave” to include: Leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition; Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified.
  • Expands the definition of “child” under CFRA to include a child of a domestic partner or a person to whom the employee stands in loco parentis; eliminates the requirement that the child be under 18 years of age or an adult dependent child.
  • Provides that the term “domestic partner” shall have the same meaning as defined in Section 297 of the Family Code.
  • Defines “grandchild” as a child of the employee’s child.
  • Defines “grandparent” as a parent of the employee’s parent.
  • Defines “parent-in-law” as the parent of a spouse or domestic partner.
  • Defines “sibling” as a person related to another person by blood, adoption, or affinity through a common legal or biological parent.
  • Repeals the California New Parents Leave Act of 2017.

These changes bring CFRA out of conformity with FMLA. As a result, CFRA will offer 12 weeks of job-protected unpaid leave for scenarios not covered by federal law. This means the ability to “stack leave” for up to 24 weeks of unpaid leave may be possible. For example, an employee could take unpaid leave for one of the newly CFRA-covered events (such as caring for a sick grandparent) and then take additional leave for an FMLA-covered event, such as for the employee’s own medical issues. The full text of SB 1382 is available here.

The state does not require leave to be paid by the employer, and the bill does not change that. The full text of SB 1382 is available here.

Employers are advised to continue to monitor updates as available. If you have any questions about the rapidly changing laws and regulations regarding COVID-19, contact your Stokes Wagner representative.

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.


Yesterday, California lawmakers passed Assembly Bill 3216, which establishes “Recall Rights” and a “Right of Retention” for laid-off employees. California employers must offer laid-off employees in writing by mail, email, and text message all job positions that become available after the bill’s effective date for which the laid-off employees are qualified. AB 3216 now heads to Governor Newsom’s desk for signature, where he has until September 30, 2020 to sign it.

AB 3216 applies to employers who operate hotels, private clubs, event centers, airport hospitality operations, airport service providers, janitorial services, building maintenance, or security services to recall employees laid-off. It will also require successor employers in these industries to maintain a preferential hiring list of eligible employees identified by the incumbent employer and hire from that list for a period of six months after the change of control and retain eligible employees for a 90-day transition employment period, and offer continued employment.

The Los Angeles and Pasadena city councils and Los Angeles Board of County Supervisors have passed similar ordinances in response to COVID-19 layoffs. Unlike the local ordinances, AB 3216 does not establish a private right of action. The Division of Labor Standards Enforcement will enforce the right of recall and retention. Employees may be awarded hiring and reinstatement rights, lost wages and benefits, for violations.

AB 3216 also specifically authorizes an employer to make simultaneous and conditional offers of employment to employees, with a final offer of employment conditioned on the application of the seniority system.

Because the main provisions are not tied to the current pandemic, it will remain in place indefinitely unless repealed. The full text of AB 3216 is available here.

Employers are advised to continue to monitor updates as available. If you have any questions about the rapidly changing laws and regulations regarding COVID-19, contact your Stokes Wagner representative.

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.


On Tuesday, Jill H. Coffman, director of the National Labor Relations Board’s Region 20 office in San Francisco, issued an order allowing furloughed hotel workers to hold union elections by mail in the midst of the COVID-19 pandemic.

UNITE HERE Local 5 filed a petition with the Board to represent a bargaining unit of approximately 350 employees of the Prince Waikiki, a luxury hotel in Honolulu, Hawaii. Like many employers across the country, the Hotel temporarily suspended its operations due to government regulations implemented in response to COVID-19. As a result, all but 50 of its employees in the petitioned-for-unit were temporarily furloughed in late-March with no lapse in benefits. The employees were added back to the payroll in late-April. By mid-June the Hotel began paying employees for time actually worked and conducted ZOOM meetings with staff in preparation for hotel stays beginning on August 1, 2020.

At the Board hearing on June 15, 2020, the Hotel unsuccessfully argued, among other things, that the election should be postponed until after a substantial complement of employees returned to work. Ultimately, the decision made in favor of the Union turned on whether the furloughed employees had a “reasonable expectation of reemployment” in the near future. Coffman concluded that because the Hotel had since placed the furloughed employees back on the payroll, conducted regular meetings in preparation for its reopening, and continued to provide benefits, the employees had a reasonable expectation of reemployment in the near future and are therefore eligible to vote in the election.

Moreover, despite the NLRB’s longstanding policy that elections be conducted manually, Coffman directed a mail-ballot election in light of the “extraordinary circumstances” created by the COVID-19 pandemic. Employees in the unit who were employed as of June 15, 2020, including those who did not work due to illness, vacation, or temporary layoffs, are eligible to vote. Election ballots will be mailed on July 9, 2020. All ballots will be commingled and counted on August 14, 2020.

It is without question that the COVID-19 pandemic has burdened labor relations across the board. Indeed, the question of whether union elections should be postponed or held by mail during the ongoing pandemic has surfaced in numerous NLRB representation cases. Since the Board has left it up to the agency’s regional directors to determine whether elections will be held in person or by mail, the regional directors have almost always opted for the latter option.

For now, employer challenges to union representation elections during the COVID-19 pandemic may be futile. Employers considering adjustments to existing labor relations strategies in light of decisions made favoring vote by mail elections should consult with Stokes Wagner to determine how to best navigate labor relations through the challenges presented by the COVID-19 pandemic.

We will continue to monitor these important issues and provide regular updates. For a printable PDF of this article, Click here. Contact Stokes Wagner if you have any questions.

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.


On June 16, 2020, nearly seven weeks after the COVID-19 Right of Recall Ordinance was adopted by the Los Angeles City Council, the Department of Public Works, Bureau of Contract Administration, Office of Wage Standards (“OWS”) finally published long-awaited guidelines to help employers understand their new responsibilities under the Recall Ordinance.

Just as the County of Los Angeles begins reopening, the OWS guidelines, published two days after the Ordinance’s effective date, provide little additional clarity for employers seeking to comply with the Ordinance and avoid the intentionally harsh penalties that would result.

The OWS guidelines clarify the exception that managers and confidential employees are not covered by the Recall Ordinance by defining managerial and supervisory employees as those employees who have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other subordinate employees, or the responsibility to direct them, adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not merely of a routine or clerical nature, but requires the use of independent judgment. Confidential employees are those whose duties involve access to confidential information usually in regard to the employer’s labor relations.

But the guidelines also muddle the meaning of the Right of Recall. Specifically, the Ordinance language provides that an employer shall make an offer “of any position which is or becomes available after the effective dates of this article for which the Laid Off Worker is qualified.” (Sec. 200.32(A)). But Regulation No. 3 of the OWS guidelines say that an employer shall make the offer “if a position becomes available after the effective date of the Ordinance…” This subtle but important inconsistency leaves many employers questioning how they fill those positions that became available before the Recall Ordinance’s effective date of June 14, 2020 without putting themselves at risk of unnecessary and costly litigation.

Now that the ordinance is in effect, it still remains unclear whether furloughed workers or independent contractors fall within the definition of “Laid Off Worker”. If a Laid Off Worker declines the Recall offer of their original job, what then becomes the employer’s obligation under the Ordinance? Must the employer place the worker at the bottom of the recall list or must they offer a second position that does not require additional skill set training? What must an employer do if the worker responds to a Recall offer one date late versus ten days late? By simply restating most of the language from the Ordinance itself, the OWS guidelines create more questions than answers.

As employers begin reopening their businesses, facing a new economy and uncertain future, the OWS guidelines leave many City of Los Angeles employers in the dark at a time when guiding light is so desperately needed. We look forward to more answers and will continue to monitor the latest guidance available from OWS.

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

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 recently enacted Paycheck Protection Program Flexibility Act of 2020 changes several provisions in the original PPP loan program enacted as part of the CARES Act. The PPPFA gives borrowers more flexibility and time to spend the PPP loan proceeds and allows the funds to be used on broader categories of expenses while still qualifying for loan forgiveness.

How much of the PPP loan needs to be spent on payroll costs?

  • The PPPFA reduced the payroll expense requirement from 75% to 60%.
  • This means 40% of the PPP loan funds may now be put towards overhead costs such as mortgage interest, rent, and utilities.
  • Word of Caution: The language of the PPPFA appears to suggest borrowers must spend at least 60% on payroll or no portion of the loan will be eligible for forgiveness. Congress has since indicated it did not intend to eliminate the sliding scale under the old PPP rules. Amendments to restore the sliding scale are anticipated. In the meantime, out of an abundance of caution, we recommend borrowers do not spend less than 60% on payroll until the fix has been made or until further guidance is issued from the federal government and/or the Small Business Administration (“SBA”).

How much time do I have to spend the PPP loan funds and still qualify for loan forgiveness?

  • The Covered Period has been extended to 24 weeks starting from the date of origination, or December 31, 2020, whichever is sooner.
  • To qualify for full loan forgiveness, borrowers using the new 24-week Covered Period must maintain payroll levels for the full 24-weeks.
  • Borrowers with existing PPP loans may choose to keep the original 8-week Covered Period. However, they will be required to maintain payroll levels through the original 8-week Covered Period in order to qualify for the full loan forgiveness amount. When do pre-pandemic employment and wage levels need to be restored?
  • The deadline for eliminating reductions in workforce and wages has been extended from June 30 to December 31, 2020.
  • Borrowers now have until December 31, 2020, to restore workforce levels and wages to pre-pandemic levels required for loan forgiveness.

Will the loan forgiveness amount be reduced if I can’t restore the original number of full-time employees?

  • No. The reduced-headcount penalty has been removed.
  • The loan forgiveness amount is now determined by, without regard to FTE headcount, documentation showing that the borrower was (1) unable to rehire former employees and unable to hire similarly qualified employees OR (2) unable to return to the same level of business activity due to compliance with federal guidelines related to COVID-19.
  • The SBA is expected to provide clarification as to what “documents” are necessary to satisfy this exception. When does the PPP loan mature?
  • For PPP loans with a remaining balance after an application for forgiveness has been made, the PPPFA establishes a minimum maturity of 5 years (instead of 2 years) for loans made after June 5, 2020.
  • For PPP loans taken out before June 5, 2020, the PPPFA allows lenders and borrowers to mutually agree to extend the loan term to 5 years.

When do I need to apply for PPP loan forgiveness?

  • Applications for PPP loan forgiveness should be submitted the day after the Covered Period ends or as soon thereafter. Don’t wait too long! Borrowers who fail to timely apply for loan forgiveness will be required to begin making loan payments 10 months from the close of the Covered Period.

I applied for PPP loan forgiveness; when do I start making payments?

  • For borrowers who submit a loan forgiveness application, PPP loan repayment is deferred until the date on which the SBA remits the loan forgiveness amount to the lender.

My lender issued a decision to forgive my PPP loan, can I still defer the payroll tax for the period from March 27 to December 31, 2020?

  • Yes! The PPPFA retroactively eliminates the restriction in the CARES Act, which prevented borrowers that received PPP loan funding from deferring additional payroll tax once the lender issued a decision to forgive the PPP loan.
  • Borrowers may now continue to defer the payroll tax for the entire period from March 27 to December 31, 2020, regardless of whether the PPP loan was forgiven during this period.

These changes apply to all PPP loans regardless of whether the PPP loan was taken out before or after the PPPFA was enacted, except for the change in loan maturity as indicated.

Note that the final date to apply for a PPP loan is still June 30, 2020. For a printable pdf, 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.


Not long after the City of Los Angeles enacted its “Right of Recall” ordinance, the County of Los Angeles shortly followed suit. The County Board of Supervisors recently adopted similar measures to establish a right of recall for hospitality workers and others throughout unincorporated areas of Los Angeles County that were laid off due to the COVID-19 pandemic.

Under both Los Angeles City and Los Angeles County Right of Recall Ordinances, priority must be given to laid-off workers whose most recent separation from active employment occurred on or after March 4, 2020, as a result of lack of business, reduction in force, or other economic, non-disciplinary reason. Both ordinances create a rebuttable presumption that any termination on or after March 4, 2020, was due to a non-disciplinary reason. Unlike the city, the county ordinance does not carve out managers, supervisors, or confidential employees.

Recall notices must be made in writing and provided by mail to the worker’s last known address, email, or text message. Workers have five business days to accept or decline the offer.

Positions must be offered to laid-off workers in the following order of priority:

If the laid-off worker:

  1. Held the same or similar position at the same site of employment at the time of the laid-off worker’s most recent separation from active service with the employer; or
  2. Is or can be qualified for the position with the same training provided to a new worker hired into that position. If more than one laid-off worker is entitled to preference for a position, the offer must go to the laid-off worker with the greatest length of service in the position, and then to the laid off-worker with the greatest length of service at the employment site.

Employers with collective bargaining agreements in place are exempt, as long as they contain a right of recall provision. But the county’s ordinance also allows ordinance provisions to be expressly waived by a collective bargaining agreement if the waiver is explicitly outlined in the agreement in clear and unambiguous terms.

These ordinances create a private right of action for laid-off workers in state court for violations. But employers must first be given notice of the alleged violation and allowed 15 days from receipt of the notice to cure. Potential relief may include hiring and reinstatement rights, lost pay and benefits, statutory damages, reasonable attorneys’ fees, and costs. Neither ordinance has an official end date.

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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.


Yesterday California Governor Gavin Newsom signed Executive Order N-62-20, creating a rebuttable presumption that employees who test positive for COVID-19 within 14 days of working contracted the virus at work. Employers will have 30 days to rebut the claim by proving the employee contracted the virus elsewhere. This order puts a significant burden of proof on employers.

The Executive Order will remain in place for 60 days after the lift of the statewide stay-at-home order (Executive Order N-33-20). The Executive Order comes just as California prepares to enter “Stage 2” of the gradual reopening of the state this Friday.

The presumption is retroactive to claims filed as early as March 19, 2020.

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 Los Angeles City Council on Wednesday passed the amended Right of Recall and Worker Retention ordinances that mandate businesses in the hospitality industry to rehire workers laid off during the COVID-19 pandemic. The ordinances were originally aimed at all businesses in Los Angeles but will now only apply to workers in hotels with more than 50 guestrooms, event centers, and airport service, as well as janitorial, maintenance, and security workers in commercial buildings. Restaurants, bars, and clubs are exempt, however workers of restaurants physically located on hotel property are also covered.

The recall ordinance will require employers in those industries to offer former workers their positions back based on seniority, in writing by mail, email, and text messages. Former workers will have five (5) days to respond to the employment offer. Managers and supervisors are specifically excluded from coverage. Significantly, the ordinance creates a private cause of action for qualified laid-off workers, including reinstatement, lost pay, benefits, and punitive damages.

The City’s retention ordinance requires employers to keep employees for ninety (90) days if a business changes ownership.

In his Wednesday address, Mayor Eric Garcetti announced that he had signed the right-of-recall ordinance and worker retention ordinance into law.

We will continue to monitor the ever-changing landscape and provide updates as new issues continue to develop as a result of the pandemic caused by the COVID-19 virus. Click here for more details on how the Right of Recall and Worker Retention ordinances will impact your Los Angeles based business and visit our website.

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.