“What if neither party to an arbitration agreement places initials next to a jury waiver contained in the agreement, even though the drafter included lines for their initials?” asked the California Court of Appeal in Martinez v. BaronHR, Inc.,Cal. App. LEXIS 631 (2020).

The employee in Martinez was given several employment-related documents, including an arbitration agreement on the day he was hired. The employee later filed a lawsuit against his employer, asserting 18 employment-related causes of action. The employer moved to compel arbitration, but the trial court denied the motion.

The arbitration agreement included three separate sections acknowledging the parties’ mutual intent to arbitrate all disputes. Notably, one section stated, “Employer and Employee each agree that arbitration, as provided for in this Agreement, shall be the exclusive forum for the resolution of any covered dispute between the parties. In agreeing to arbitration, both Employer and Employee explicitly waive their respective rights to trial by jury.” Next to the margin of the final sentence was an area to be initialed by both parties. But neither the employee nor the employer initialed.

The Court of Appeal concluded that the arbitration agreement should nevertheless have been enforced by the trial court.  The Court of Appeal reasoned that the agreement’s language established the parties’ mutual assent to submit all employment-related disputes to arbitration and to waive the right to a jury trial.  Despite the lack of initials next to one of the jury waiver provisions, the Court of Appeal stressed that the parties manifested their assent to be bound by all the terms of the arbitration agreement because: (1) both parties signed at the signature block at the end of the arbitration agreement; and (2) the arbitration agreement explicitly stated that by signing the agreement, the parties agreed to be bound by all its terms.

Finally, the Court of Appeal stated the trial court should not have considered a declaration submitted by the employee, stating, “[U]nexpressed subjective intentions are irrelevant to the issue of mutuality.”  In other words, unspoken intentions do not affect whether the parties agreed to arbitrate when the language in the agreement is clear.

Jackson Lewis will continue to monitor legal updates pertaining to arbitration agreements. If you have questions about employment arbitration agreements contact a Jackson Lewis attorney to discuss.

On July 13, 2020, the State of California announced that, due to the surge in COVID-19 cases and hospitalizations, the following industries must close indoor operations on a statewide basis:

  • Restaurants
  • Wineries and tasting rooms
  • Movie theaters
  • Family entertainment centers
  • Zoos and museums
  • Cardrooms

Bars, breweries, and pubs are required to close all operations (indoor and outdoor).

In addition to these statewide closures, Governor Newsom ordered the closure of indoor operations for select businesses across 30 counties that have been on the County Monitoring List for three or more consecutive days. This order applies to the following sectors and events:

  • Gyms and fitness centers
  • Places of worship
  • Offices for non-critical infrastructure sectors
  • Personal care services (including nail salons, massage parlors, and tattoo parlors)
  • Hair salons and barbershops
  • Malls and shopping centers
  • Indoor protests

According to the California Department of Public Health, all industry and sector guidance documents that have been issued to date, including all infectious control measures such as the use of face coverings, will apply to outdoor settings and must be adhered to.

Outdoor operations may be conducted under a tent, canopy, or another sun shelter, so long as no more than one side is closed to allow for sufficient air movement.

These closures will remain in effect until further notice.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

While many counties around California moved into accelerated reopening, San Francisco County set its own pace. Though San Francisco has paused some reopening for now, as COVID-19 infection rates change, additional businesses will eventually be permitted to reopen.

San Francisco created detailed requirements for businesses, whether essential or otherwise, to follow during the pandemic. All businesses that are operating must have workers, including volunteers and contractors, self-evaluate their health on a daily basis before each shift. Some businesses are also required to ask COVID-19 screening questions of employees, contractors, and volunteers before starting work. The San Francisco Department of Public Health further encourages businesses and organizations to conduct health screening, even if not required to do so. Employers may use a variety of methods to conduct screening including the use of a physical handout, an automated phone call, or an online survey, but should ensure screening includes the Department’s required screening questions. Employers should also establish clear procedures for health screening activities, which identify who will conduct the screening, safety measures used during screening activities, methods for documenting health screening, and procedures the employer will follow if screening identifies an individual with COVID-19 symptoms or exposure. If documenting health screening activities, employers should be aware that the records could fall into the definition of an employee exposure record or medical record and be subject to thirty-year retention requirements in California Code of Regulations Title 8, Section 3204. The handout created by the city provides a list of questions for an employee to answer every day that they report to a worksite, and includes questions like, “Within the last 10 days have you been diagnosed with COVID-19 or had a test confirming you have the virus.” The same questions are also available on a website that employers may direct employees to. Notably, the San Francisco Department of Public Health is discouraging the use of temperature checks as part of an employer’s health screening procedures and indicates that measuring temperatures should only be used in “special circumstances in very specific settings where measuring temperatures is required.”

As asking employees about their symptoms and exposure to COVID-19 does not replace other safety measures,  in addition to these health checks, San Francisco employers must also prepare a social distancing protocol. The employer’s social distancing protocol should clarify how employees may maintain a physical distance of 6 feet or more throughout the day, alternative safety measures if social distancing is not feasible, and protective measures to prevent unnecessary contact. All employees should be trained on the protocol and a copy of the protocol should be posted on-site someplace that employees will see it.

Similar to the general State requirements for businesses that are operating, San Francisco businesses must take precautions to protect employee health including:

  • Making sure that employees do not come to work sick.
  • Ensure desks and work areas are at least 6 feet apart.
  • Clean break rooms, bathrooms, and other common areas frequently.
  • Do not let employees use shared equipment like microwaves, water coolers, or drinking fountains.
  • Make cleaning supplies, hand sanitizer, tissues, and soap and water easily available.

As is now mandated across the state, San Francisco employers must require everyone to wear a face covering and encourage good hygiene practices.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

Many businesses are beginning their re-opening phases, while others are being forced to close again due to COVID-19 fluctuations.  In such uncertain circumstances, many employers are struggling to find a balance between the safe and efficient operation of their businesses, and preparation for potential closure orders and/or business restrictions.

Due to the uncertainty of the circumstances, there is no way to predict what is in store for employers. However, the following are things to consider as COVID-19 persists:

  • Determine whether your business qualifies as “essential” under the state or local orders, keeping in mind, that even if your organization’s mission may be considered “essential”, not all employees may be deemed “essential”, under local orders.
  • Prepare and/or update your company’s COVID-19 exposure and Prevention Plan and Cal/OSHA Injury and Illness Prevention Plan;
  • Review state and local requirements for symptom screening procedures for employees working on-site and/or customers coming to the worksite;
  • Ensure you have appropriate sources of personal protective equipment for your employees;
  • Review remote work and telework policies;
  • Evaluate expense reimbursement for potential further telework;
  • As to employees who cannot work from home, assess which applicable supplemental paid sick leave ordinances may apply to your business;

It is recommended that reopened companies implement an action plan to ensure they are prepared to handle potential future closures due to the fluctuation of COVID-19 infections.

Some things businesses should do to prepare for a potential second wave of closures are:

  • Review Cal-WARN Act obligations;
  • Revisit former employee notices and communications to ensure they are compliant under the rapidly changing regulations;
  • Consult local orders applicable to furloughs and layoffs;
  • Verify compliant practices for processing requisite terminations and layoffs.

To ensure you are staying on top of national and local regulations surrounding COVID-19 in real-time register for the Jackson Lewis COVID-19 Advisor.  Our firm has attorneys nationwide from multiple practices and industries actively assisting businesses on the rapidly evolving COVID-19 workplace challenges.

At the end of June, the San Francisco Board of Supervisors passed an emergency ordinance creating a right of reemployment for certain employees laid off due to the COVID-19 pandemic. The ordinance became effective on July 3rd.  Although Mayor Breed did not sign the ordinance, the City Charter allows the ordinance to take effect if the Mayor does not sign the ordinance within ten days of receiving it.

This ordinance applies to for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The only employers exempted from the new ordinance are government entities and certain healthcare operations as defined under the Health Officer’s Order.

Under the ordinance, an employer shall provide written notice to employees of covered layoffs and an employee’s rights under the ordinance. Employers who conducted covered layoffs on or after February 25, 2020, prior to the effective date of the ordinance, have 30 days from July 3rd to provide notice to employees of their rights under the new ordinance.

The notice must include a notice of the layoff and its effective date, a summary of the new ordinance’s right to reemployment, and contact information for the San Francisco Office of Economic and Workforce Development.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you need assistance in compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.

On June 25th the California State Senate passed a resolution to place a proposition on the November ballot to repeal Proposition 209 and amend the state constitution. Proposition 209 passed in 1996 and amended the state constitution to prohibit state governmental institutions from considering race, gender, or ethnicity, specifically in the areas of public employment, contracting, and education.

If approved by voters, this constitutional amendment would remove language prohibiting public universities, schools, and government agencies from using race or gender in their admissions criteria, hiring, and contract decisions.

The Senate Floor argument in favor of the repeal states that disparities pertaining to race and gender in the workplace still exist and Proposition 209 prevents California leaders from taking active measures to address those disparities. The opposition to the repeal states the purpose of passing Proposition 209 was to prohibit preferential treatment based on race, sex, color, ethnicity, or national origin. Proposition 209 has faced several legal challenges both in state and federal courts. In 1996 after its passage, a federal district judge blocked enforcement. However, the Ninth Circuit Court of Appeals subsequently overturned that ruling, allowing the amendment to proceed.

Jackson Lewis will continue to track the ballot initiative to repeal Proposition 209 and other legislation pertaining to the workplace. If you have questions about this or related legislation contact a Jackson Lewis attorney to discuss.

As we recently reported, the privacy-right activist group that sponsored the California Consumer Privacy Act (“CCPA”) – Californians for Consumer Privacy – is pushing for an even more stringent privacy bill, the California Privacy Rights Act (“CPRA”). The CRPA has now qualified for the November 3, 2020 ballot, gathering more than 600,000 valid signatures as required, according to the memorandum circulated by the California Secretary of State. If California voters approve the initiative in November, the CPRA would significantly expand the rights of Californians under the current California Consumer Privacy Act (“CCPA”) starting on January 1, 2023, with certain provisions going into effect immediately.

Please find the full article on the Jackson Lewis Workplace Privacy, Data Management & Security Report

On June 23, 2020, the San Francisco Board of Supervisors passed an emergency ordinance temporarily creating a right to reemployment for certain employees laid off due to the COVID-19 pandemic. The ordinance, titled “Back to Work” emergency ordinance, requires that as certain employers reopen,  they must first seek to rehire the employee who previously held the position or a similar position before offering the position to another individual. This ordinance takes effect upon signature of the Mayor and will remain in effect for 60 days unless the Board of Supervisors votes to extend its application.

This new emergency ordinance applies to for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The only employers exempted from the new ordinance are government entities and certain healthcare operations as defined under the Health Officer’s Order.

Employees are covered by the ordinance if they were employed for at least 90 days of the calendar year preceding a covered layoff. Covered layoffs are limited to any layoff of 10 or more employees in any 30 day period starting on February 25, 2020, until the expiration of the ordinance, and was caused by the employer’s lack of funds or lack of work due to the COVID-19 public health emergency declared by both the mayor of San Francisco and the governor of California.

Employers covered by the “Back to Work” emergency ordinance have the following obligations:

  • Employers must provide eligible employees with written notice of a covered layoff and the right to reemployment, at or before the time the layoff becomes effective. If a covered layoff has already occurred, the employer has 30 days from the effective date of the ordinance to provide written notice to eligible employees.
  • As employers reopen, they must first seek to rehire the employee who previously held the position, or a substantially similar position, before offering the position to another individual. Such offers of reemployment must be made in order of seniority if more than one eligible worker could be rehired for the same position. An employer is permitted to withhold an offer of rehire if after layoff it was discovered the employee engaged in any act of dishonesty, violation of the law, violation of policy, or rule of the employer. An employer may also withhold an offer of rehire if the employee executed a severance agreement at the time of layoff.
  • Employers must also notify the Office of Economic Workforce Development in writing of all covered layoffs and offers of reemployment made under the ordinance, as well as all acceptances and rejections of rehire offers by eligible employees.
  • Employers that implement covered layoffs must retain the following records for at least two years: eligible employee’s full legal name, job classification at the time of separation, date of hire, last known address, last known email address, last known telephone number and a copy of the lay off notice provided.
  • The ordinance prohibits employers from discriminating against an eligible employee who is experiencing a “Family Care Hardship”, which includes needing to care for a child due to school closures or lack of available childcare, or any grounds for which a person may use paid sick leave to care for another.  Eligible employees are entitled to reasonable accommodation of job duty or job requirements if a Family Care Hardship impacts their ability to perform a job duty or to satisfy a job requirement.  Employers must make a good faith effort to reasonably accommodate an eligible employee.  This duty to accommodate expires with the expiration of the ordinance.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you have questions about compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.

California has adopted the first nighttime work safety standards in the nation which apply to agricultural workers who harvest, operate vehicles, and other tasks between sunset and sunrise.

The new safety standards are being implemented to address potential workplace hazards caused by poor visibility and require employers to, at a minimum, evaluate each outdoor worksite to determine required lighting levels. Employers may also need to implement protective measures to improve the visibility of workers by operators of farm equipment and ensure workers have adequate lighting. The new standards set forth lighting levels required for specific operations and tasks. However, in setting up lighting for nighttime work, employers also need to address potential glare and ensure lighting setup does not present a new hazard for employees.

The standards also require that the supervisor conduct a safety meeting at the start of every shift to inform workers about the location of restrooms, drinking water, designated break areas, nearby bodies of water, and high traffic areas.

In addition to providing area lighting in some circumstances, employers are required to provide workers with high visibility garments that conform with national standards when required to perform work between sunset and sunrise.

The updated parameters take effect on July 1, 2020.

If employers have questions about workplace safety and Cal/OSHA compliance they should contact a Jackson Lewis attorney to discuss.

As businesses reopen, employers will almost certainly be faced with the potential of a COVID-19 outbreak in the workplace. In addition to the industry-specific guidance for reopening that the State of California has issued, the California Department of Public Health (the Department) recently issued guidance for employers responding to a COVID-19 outbreak in the workplace.

The guidance is intended to apply to all workplaces experiencing a workplace COVID-19 outbreak, exclusive of healthcare, congregate living, and other workplaces where the Cal/OSHA Aerosol Transmissible Disease (ATD) standard applies to control possible exposures to COVID-19. Employers should note that an “outbreak” can be defined differently by local public health orders. Therefore, employers should familiarize themselves with how the term is defined in their workplace jurisdiction, as well as jurisdictions in which employees reside.

To prepare for the possibility of an outbreak, employers also are encouraged to designate an infection prevention coordinator who will implement infection prevention procedures, develop mechanisms for tracking suspected and confirmed cases among employees, and ensure sick leave policies are generous and flexible enough to accommodate employees who must stay home sick.

The Department also advises employers should be prepared to share information with the local health department (LHD) should a known or suspected outbreak occur in the workplace. This can include notifying the LHD in the county where the positive employee resides—even if an employee resides in a jurisdiction outside of where the workplace is located. Employers may be asked to provide the LHD a roster of all employees in the jurisdiction where the workplace outbreak is occurring. The Department further recommends that employers communicate with the LHD on how frequently the LHD expects updates from the employer on newly identified cases and symptomatic employees in the workplace and during the outbreak.

The Department states that, in the event of a workplace outbreak, testing all employees in the workplace should be the first strategy considered for the identification of additional cases when needed to control workplace spread of COVID-19. Testing should be done with the assistance of the LHD. When testing is not available or recommended by the LHD, employers should consider alternative methods for controlling the outbreak, including contact tracing and advising close contacts of positive employees about home quarantine and isolation. The guidance emphasizes that employers must maintain the confidentiality of employees with suspected or confirmed COVID-19 infection when communicating with other employees. In addition, employers are directed to familiarize themselves with the requirements of reporting employee cases to Cal/OSHA, including reporting COVID-19 inpatient hospitalizations and deaths among employees.

The guidance also indicates that as part of the outbreak management, the LHD may recommend a strategy to the employer for allowing employees to return to work following a confirmed COVID-19 exposure. While the Centers for Disease Control and Prevention’s (CDC) most recent guidance on return to work should be considered, a strategy that may be recommended by the LHD consists of the following:

Symptomatic Positive

Employees with symptoms who are laboratory confirmed to have COVID-19

At least 3 days (72 hours) have passed since recovery, defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and, at least 10 days have passed since symptoms first appeared.

Asymptomatic Positive

Employees who never had symptoms and are laboratory confirmed to have COVID-19

 

A minimum of 10 days has passed since the date of their first positive COVID-19 test. If they develop symptoms, then the criteria for laboratory-confirmed cases with symptoms apply.

Symptomatic Negative

Employees who had symptoms of COVID-19, but test result returned negative

Use the same criteria for return to work as laboratory-confirmed cases.

Asymptomatic Negative

Employees who never had symptoms, but were tested due to close contact with a laboratory-confirmed case-patient and were negative

Employees should quarantine at home for 14 days after the last known close contact with the case-patient. Symptoms can develop even after testing negative within 14 days after exposure.

Symptomatic Untested

Employees who had symptoms of COVID-19 but were not tested

Testing is highly recommended. If the employee cannot be tested, use the same criteria for return to work as laboratory-confirmed cases.

Asymptomatic Untested

Employees who had close contact with a laboratory-confirmed case patient at work, home, or in the community and do not have symptoms.

OR

Employees who refuse or are unable to be tested after close contact with a laboratory-confirmed case, despite a recommendation for testing from LHD or healthcare provider, and do not have symptoms.

Employees should be quarantined at home for 14 days after the last known close contact with the case patient

Employees who develop symptoms of COVID-19 while in quarantine should contact their healthcare provider. Even if they are not tested, the same criteria for return to work should be used as laboratory-confirmed cases.

Jackson Lewis is tracking state and local guidance pertaining to COVID-19. If you need assistance in developing reopening or response plans for COVID19, contact a Jackson Lewis attorney to discuss.