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.
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.
On March 2, 2021, Texas Governor Greg Abbott issued Executive Order No. 34 (GA-34), rescinding most of his earlier executive orders related to COVID-19, including the statewide mask mandate and business occupancy restrictions. GA-34 becomes effective at 12:01 a.m. on March 10, 2021.
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.
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.”
On February 1, 2021, in an unpublished opinion resolving a Fair Labor Standards Act (FLSA) attorney’s fees dispute, the Eleventh Circuit Court of Appeals, in Batista v. South Florida Womans Health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.
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.
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.
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.
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.
On February 23, 2021, the City Council of Irvine, California, passed a hero pay ordinance entitling retail grocery store and drug store workers premium pay for hours worked during the COVID-19 pandemic.
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.
On February 16, 2021, the City Council of West Hollywood, California, passed an urgency ordinance establishing premium pay for grocery workers during the COVID-19 pandemic.
On January 27, 2021, the City Council of Montebello, California, passed an ordinance titled “Premium Pay for Grocery and Drug Store Workers Ordinance.” Montebello is an incorporated city located in Los Angeles County, California. The ordinance requires employers to provide grocery and drug store workers with premium pay of $4.00 for each hour worked. The ordinance took effect immediately and expires in 180 days, unless otherwise extended.
A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.
On February 10, 2021, the City Council of Coachella, California, passed the “Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy Workers Ordinance.” Coachella is located in Riverside County, California. Other cities in the state that have enacted similar measures in 2021 include Montebello, in Los Angeles County, and Oakland, in Alameda County.
The COVID-19 pandemic continues to affect the global economy, and employers are increasingly considering which are the most and least employer-friendly places new offices, distribution centers, and operational locations, both during the pandemic and after emerging from it. The Arizona State University Center for the Study of Economic Liberty recently released Doing Business North America 2020 (DBNA), a report analyzing and comparing data indicative of the regulatory context for business activity in a number of metropolitan areas. The report ranked 130 cities across Canada, Mexico, and the United States, based on 111 variables for determining where the best places to do business are currently (although given the ever-changing local, state, and federal landscapes, the assessment may change frequently). The variables underlying the rankings fall into six broad categories: starting a business; employing workers; obtaining electricity, land and space use; and paying taxes and resolving insolvency.
On February 2, 2021, the City Council of Oakland, California, passed the “Grocery Worker Hazard Pay Emergency Ordinance” to provide a boost in pay for frontline workers during the COVID-19 pandemic.
Minnesota employers will be heading back to the drawing board to revise their handbook disclaimers. The Minnesota Supreme Court now requires specific language in policies that set out the terms and conditions for payment of certain employee benefits such as payouts of vacation and paid time off (PTO).
In 2016, Illinois enacted the Illinois Freedom to Work Act (IFWA). In doing so, it became one of the first states to pass legislation in response to the Obama administration’s Call to Action, which asked states to amend their restrictive covenant laws to, among other things, ban covenants not to compete for workers under a certain wage threshold.
California Attorney General (AG) Xavier Becerra recently announced that he has created the Worker Rights and Fair Labor Section, which will fall under the California Department of Justice’s (DOJ) Division of Public Rights. This new section will be tasked with protecting workers against workplace issues such as wage theft, health and safety violations, and employee misclassification.
On February 5, 2021, the U.S. District Court for the District of Delaware granted summary judgment in Snyder v. E.I. DuPont de Nemours, Inc. and Company, No. 18-1266, holding that DuPont did not terminate the employment of its employee, Peggy Snyder, in retaliation for her use of leave under the Family and Medical Leave Act (FMLA).
On February 4, 2021, Arizona Governor Doug Ducey signed into law House Bill (H.B.) 2045, which expands protections for pregnant workers under Arizona law. The measure amends the Arizona Civil Rights Act (ACRA) to mirror existing protections under the federal Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964.
On February 9, 2021, the San Francisco Board of Supervisors voted to extend the time period for employees to use San Francisco Public Health Emergency Leave. The Board first enacted the Public Health Emergency Leave Ordinance (PHELO) on April 17, 2020, and has continued to extend it for subsequent periods of approximately 60 days each extension. The mayor has approved each of the prior extensions and must approve this one as well. If she does, the ordinance will expire 61 days later.
Over 1,500 COVID-19–related employment lawsuits were filed in the United States in 2020. Ogletree Deakins’ Interactive COVID-19 Litigation Tracker highlights the industries impacted, locations, and types of claims in these matters.
The New York State Department of Labor (NYSDOL) issued guidance on January 20, 2021, clarifying certain aspects of New York’s COVID-19–related quarantine leave law and expanding certain benefits under the law. Parts of the guidance came as a surprise to some employers, as they appear to impose additional obligations on employers to pay employees if they require the employees to remain out of work due to potential COVID-19 exposure.
On September 30, 2020, California Governor Gavin Newsom signed into law a pay data reporting requirement for employers that assigns responsibility for collecting such data to the California Department of Fair Employment and Housing (DFEH). To assist employers with this filing requirement, the DFEH recently established a web page and published answers to a a series of frequently asked questions (FAQs) that address several topics related to the upcoming filings, which are due no later than March 31, 2021.
The California Division of Occupational Safety and Health (Cal/OSHA) recently updated its frequently asked questions (FAQs) guidance, “COVID-19 Emergency Temporary Standards Frequently Asked Questions”. The FAQs clarified some areas of the regulation and provided additional guidance for California employers, particularly construction companies. Under the Emergency Temporary Standards (ETS) adopted on November 30, 2020, California construction companies face specific standards related to transportation and workplace exposures that create unique questions and challenges.
The U.S. Court of Appeals for the Sixth Circuit, the appellate court responsible for the federal district courts of Michigan, Ohio, Kentucky, and Tennessee, recently made clear that claims asserted under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) cannot be subject to contractually shortened limitation periods.