Stokes Wagner Law Firm
Stokes Wagner

Based on recent guidance from the Office of the General Counsel of the National Labor Relations, covered employers with unionized workers must engage their employees’ unions when developing their vaccination and/or testing policies to comply with OSHA’s new ETS rule (“ETS”). The Board has emphasized employer’s duty to bargain concerning changes in terms and conditions of employment where employers are allowed discretion in implementation. Since ETS gives covered employers discretion with regards to implementing certain of its requirements, employer’s must bargain with their employees’ unions.

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Federal OSHA recently published its Emergency Temporary Standard (ETS) requiring certain private employers to adopt mandatory vaccination and/or COVID testing policies. Considering the ETS and other local/state vaccine mandates, we expect the number of employees submitting requests for religious accommodations to workplace vaccine mandates to only increase.

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OSHA has released its “Emergency Temporary Standard” (ETS) in response to President Biden’s employer vaccination mandate on November 4, 2021. The details of the new ETS may be found here. OSHA has also issued a Fact Sheet and a Summary of the ETS.

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The parties in the case of Daneshgari v. Patriot Towing Services, LLC, No. A21A0887 (Ga.App. Oct. 21, 2021), had entered into a four-year non-compete agreement in June of 2016 that Daneshgari and his partner began to violate within a month after signing the agreement. After PTS sued to enforce the agreement in 2018, a trial court in Georgia granted PTS’s motion for a preliminary injunction and ordered the defendants to cease violating the noncompete provision. The defendants ignored the court’s injunction and continued to operate their competing business. The trial court found Daneshgari in willful civil contempt of the preliminary injunction and ordered him to be incarcerated until he paid PTS $20,000 in attorney fees. Less than one week later, Daneshgari paid the $20,000 and was released from incarceration.

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Effective January 1, 2022, a new law exempts certain unionized janitorial employees from suing under the Private Attorneys General Act of 2004 (“PAGA”). On September 27, 2021, Governor Newsom signed SB 646 into law which specifies that unionized janitorial workers covered by a valid CBA will no longer be allowed to bring civil actions under PAGA.

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As a result of the #MeToo Movement, California Senators and Assembly Members introduced numerous bills on sexual harassment prevention. One of the laws that passed included SB 820, the “Stand Together Against Non-Disclosure” (STAND) Act. The STAND Act prohibited preventing the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, filed in a civil or administrative action. Such provisions, if included in settlement agreements, are void as a matter of law and against public policy.

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Today the Los Angeles City Council passed an ordinance requiring proof of vaccination against COVID-19 for patrons to enter indoor public spaces in the city. The ordinance will require patrons to be vaccinated to enter certain establishments such as restaurants, bars, nightclubs, gyms, sports arenas, spas, salons, shopping malls, and others. The ordinance will also apply to large outdoor events.

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At the September 15 meeting, the Los Angeles County Board of Supervisors adopted a new policy that will affect hospitality businesses operating on Los Angeles County property. Policy 5.290 was recommended to the Board in a letter from the office of the County’s Chief Executive Officer. The Policy affects how labor disputes are handled at “hospitality operations” on County-owned or operated properties. “Hospitality operators” is defined in the Policy to include hotels, restaurants, and hospitality/food concessionaires. The Policy will apply regardless of whether or not the entity conducting such operations has leased directly with the County or with the County’s “lessee, licensee, or concessionaire.” It also applies to subleases, sublicenses, assignments, and transfers.

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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.

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Los Angeles County will require proof of vaccination for customers and employees at indoor bars, wineries, breweries, nightclubs, and lounges. Under the order, customers and employees at indoor nightlife establishments will need to have at least one dose of the COVID-19 vaccine by October 7 and receive the second dose by November 4, 2021. The order will strongly recommend (but fall short of requiring) vaccine verification for indoor restaurants.

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