San Francisco Judge Denies Injunctive Relief Allowing Cal/OSHA COVID-19 Emergency Temporary Standards to Remain in Place

On February 25, 2021, San Francisco Superior Court Judge Ethan Schulman denied applications for preliminary injunctions in their entirety requested by two plaintiffs, thus leaving in place the California Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (ETS). The ETS took effect on November 30, 2020.

Long Beach ‘Hero Pay’ Ordinance Survives Preliminary Injunction

On February 25, 2021, the U.S. District Court for the Central District of California denied a motion for preliminary injunction brought by the California Grocers Association (CGA) against the City of Long Beach. In California Grocers Association v. City of Long Beach, CGA asked the court to stop the city from enforcing its Premium Pay for Grocery Workers Ordinance, one of the many “hero pay” or “hazard pay” ordinances enacted by California localities in the past several weeks.

California Supreme Court Issues Significant Meal Period Decision

Taking a meal break in California is no simple affair.  Culminating seven years of litigation involving one California employer, on February 25, 2021, the Supreme Court of California issued its unanimous opinion in Donohue v. AMN Services, LLC, resolving two questions regarding California meal periods. The court’s opinion also raised, but did not resolve, questions regarding meal period compliance that will likely challenge employers and litigants for years.

UK Tribunal Rules—‘Stale’ Standalone Training Proves Insufficient Defence to Race Harassment Claim

Under section 109(1) of the Equality Act 2010 (EA 2010), an employer is liable for acts of discrimination, harassment, and victimisation carried out by its employees in the course of employment: “[a]nything done by a person (A) in the course of A’s employment must be treated as also done by the employer.” Section 109 further states that “[i]t does not matter whether that thing is done with the employer’s … knowledge or approval.” However, under section 109(4) EA 2010, an employer has a defence if it can demonstrate that it “took all reasonable steps” to prevent the employee from carrying out the act of discrimination. When considering an employer’s defence that it took all reasonable steps to prevent an employee from discriminating against another employee, a tribunal will examine how effective the steps were likely to be when they were taken and how effective they proved to be in practice. The decision of Allay (UK) Ltd v Mr S Gehlen looks at the scope of this defence.

What Is the United Kingdom’s ‘Covid Visa Concession Scheme (CVCS)’?

On 11 January 2021, the UK Home Office published guidance on the “Covid Visa Concession Scheme (CVCS).” The scheme applies to individuals who left the United Kingdom before 17 March 2020, with permission to live in the UK, whose visas have since expired whilst they were abroad, and are now unable to return to the UK due to coronavirus travel restrictions. The CVCS allows those individuals to enter the UK to make leave to remain (LTR) or indefinite leave to remain (ILR) applications.

Wisconsin Joins States Providing Civil Immunity Related to COVID-19 Exposure

On February 25, 2021, Wisconsin joined Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, Montana, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Wyoming in enacting a COVID-19 litigation shield law. Governor Tony Evers signed a bill providing entities broad immunity from “civil liability for the death of or injury to any individual or [for] damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to … COVID-19.”

When Is ‘No Fee’ a Reasonable Fee? 11th Circuit’s Guidance on Reasonableness in FLSA Attorneys’ Fees Cases

On February 1, 2021, in an unpublished opinion resolving a Fair Labor Standards Act (FLSA) attorney’s fees dispute, the Eleventh Circuit Court of Appeals, in Batista v. South Florida Womans Health Associates, Inc., struck another blow against unreasonable plaintiffs’ counsel seeking “reasonable” fees.

Second Draw Paycheck Protection Program Loans: Answers to Employers’ Frequently Asked Questions

The Consolidated Appropriations Act (CAA), 2021 includes a provision that modified and extended the Small Business Administration’s (SBA) Paycheck Protection Program (PPP). Specifically, Section 311 of the Additional Coronavirus Response and Relief provisions of the CAA provides for PPP second draw loans for eligible businesses. Employers seeking a PPP loan may apply through March 31, 2021. Below are answers to some key questions regarding second draw PPP loans.

Atlantic Canada Versus the Prairies: Tightening and Loosening of COVID-19 Measures

Certain Canadian provinces have been especially hard hit by COVID-19 outbreaks. Most notably, Ontario and Quebec—two of Canada’s most populated provinces—have experienced the highest number of infection counts among the country’s provinces. While Ontario and Quebec have struggled to contain the spread of COVID-19, other provinces have had a different experience.

California Employers Can Seek One-Month Extension for Reporting 2020 Pay Data, State Agency Says

On February 3, 2021, the California Department of Fair Employment and Housing (DFEH) updated its frequently asked questions (FAQs) to make clear that employers can seek an extension for reporting year 2020—known as a request for an “enforcement deferral period”—as to its newly enacted pay data reporting requirement that reports are otherwise due on March 31, 2021.

DC’s Noncompete Ban—A Law of Unintended Consequences

Just as the calendar was turning to 2021, the Council of the District of Columbia threw District of Columbia employers a late-breaking curveball that most did not see coming. The Ban on Non-Compete Agreements Amendment Act of 2020 (D.C. Act 23-563) was passed by the Council on December 15, 2020, and signed by Mayor Muriel Bowser on January 11, 2021. The legislation, which will create a near-total ban on noncompete agreements, took the Washington, D.C., business community by surprise. The final text is substantially broader than the more modest bill that was proposed originally, and the legislation goes well beyond laws enacted in other jurisdictions to curtail the use of post-employment noncompete agreements.

Equality Act Reintroduced to U.S. Congress

On February 18, 2021, U.S. Representative David Cicilline (D-RI) reintroduced the Equality Act (H.R. 5), a bill that would amend federal law (including Title VII of the Civil Rights Act of 1964) to prohibit discrimination on the basis of sexual orientation and gender identity. Although the U.S. House of Representatives passed a nearly identical version of the Equality Act in 2019,  the bill never gained traction in the U.S. Senate and died in committee.

Company E-Sports Leagues Present New Twist on Traditional Employment Law Issues

A growing trend among employers that are turning to new and updated methods of fostering employee collegiality and team bonding involves e-sports leagues. Similar to the traditional company softball team, e-sports leagues provide a modern method for employees to form teams that compete at video games against squads of workers from other businesses. This competitive medium has gained in prominence during the COVID-19 pandemic as employers seek innovative ways for employees to interact while observing social distancing precautions. Employers can view these competitive outlets as a means of fostering creativity, building rapport, and developing trust among personnel.

San Leandro, California Enacts ‘Hazard Pay’ Ordinance for Large-Chain Retail Food Workers, Including Retail Drug Stores

On February 16, 2021, the City Council of San Leandro, California, passed an ordinance titled “Retail Food Worker Hazard Pay Ordinance,” which establishes premium pay for retail food workers during the COVID-19 pandemic. San Leandro is an incorporated city located in Alameda County in the San Francisco Bay Area.

South Dakota Judge Nips Recreational Marijuana in the Bud: Holds Amendment A Unconstitutional

Last November, South Dakota voters approved Amendment A, which allowed for the recreational use of marijuana by individuals 21 years and older (and for possession of up to 1 ounce). On February 8, 2021, a South Dakota judge granted summary judgment in favor of law enforcement officers who filed a lawsuit on behalf of Governor Kristi Noem challenging Amendment A.

Vaccine Volunteers: Is “Thank You” Sufficient Compensation?

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees at least minimum wage for all hours worked up to 40 hours in a workweek and time and one-half for all hours worked over 40 hours in the same workweek. An exception to this rule exists for volunteers, who are not categorized as “employees” under the statute. Typically, volunteers are individuals who donate their time to non-profit, civic, religious, and other charitable organizations.

Recreational Marijuana Is Legal in New Jersey: What Employers Need to Know

On February 22, 2021, New Jersey Governor Phil Murphy signed into law the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). Among other things, the 240-page measure legalizes the recreational use of marijuana for adults age 21 and older and—unfortunately for employers—places significant burdens on companies doing business in New Jersey with respect to marijuana and the workplace.