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Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

A new law signed by President Biden brings significant changes to employers’ ability to require arbitration of certain disputes with employees and could lead to an increase in sexual assault and sexual harassment claims against employers in court.  On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”).  The Act amends the Federal Arbitration Act (“FAA”) to provide that predispute arbitration agreements and predispute joint-action waivers relating to sexual assault and sexual harassment disputes are unenforceable at the election of the person or class representative alleging the conduct.  The Act took effect immediately upon signing.

Continue Reading New Law Ends Mandatory Arbitration for Sexual Assault and Sexual Harassment Claims

In a development that will sound familiar to employers, California has reinstated the requirement, which had expired last fall, to make available to employees up to 80 hours of COVID-19 supplemental paid sick leave (“Supplemental Sick Leave”).  The new measure, Senate Bill (“SB”) 114, was signed by Governor Newsom on February 9, 2022, and the requirement to provide the new sick leave went into effect on February 19. Employees may use the new sick leave retroactive to January 1, 2022.

Continue Reading California Reinstates and Updates COVID-19 Supplemental Paid Sick Leave for 2022

Pursuant to a new Order issued by New York City’s Commissioner of Health and Mental Hygiene, beginning December 27 workers in New York City who perform in-person work or interact with the public in the course of their work must provide proof of at least one dose of a COVID-19 vaccination before entering the workplace.  Workers then have 45 days to show proof of their second dose if they received either the Pfizer or Moderna vaccine.  The Order requires employers to exclude from the workplace any worker who has not provided proof of vaccination or been granted a religious or medical accommodation to the vaccine mandate, as well as workers who do not provide proof of a second Pfizer or Moderna dose within 45 days of submitting proof of the first dose.

Continue Reading New York City Announces Workplace COVID-19 Vaccination Requirement

Governor Newsom recently signed into law SB 331 to impose a number of new restrictions on employment settlement, separation, and nondisclosure agreements. Here’s an overview of the new requirements, which apply to agreements entered into on or after January 1, 2022:

First, for settlement agreements involving claims of harassment or discrimination based on any protected

Effective March 29, 2021, California employers with more than 25 employees must provide up to 80 hours of paid sick leave for certain COVID-19-related reasons.  The new law, Senate Bill 95 (adding Labor Code Sections 248.2 and 248.3), is retroactive to sick leave taken beginning January 1, 2021.  The law will expire on September 30, 2021.

Last year, California enacted a COVID-19 paid sick leave law that applied to employers with 500 or more employees, and which expired on December 31, 2020.  The new California COVID-19 supplemental paid sick leave law (“Supplemental Sick Leave”) requires any business with more than 25 employees to provide Supplemental Sick Leave that is in addition to paid sick leave that the employee is already entitled to under other applicable laws (or previously took under the prior California COVID-19 sick leave law).

Full-time employees are entitled to 80 hours of Supplemental Sick Leave, and part-time employees are entitled to an amount of leave that correlates with: (1) the number of hours the employee regularly works over a two-week period, or (2) if the employee works a variable number of hours, 14 times the average number of hours the employee worked each day in the six months preceding the date the employee took Supplemental Sick Leave.

Continue Reading California Employers Required to Provide COVID-19 Supplemental Paid Leave, Retroactive to January 1, 2021

Effective March 12, 2021, all public and private employers in New York must provide each employee with up to four hours of paid leave to obtain a COVID-19 vaccine injection.  The new law, which took effect immediately after being signed by Governor Cuomo, adds a new Section 196-c to the New York Labor Law and Section 159-c to the New York Civil Service Law.

Employees are entitled to paid leave, at their regular rate of pay, for a “sufficient period of time, not to exceed four hours per vaccine injection,” unless the employee is entitled to receive a greater number of hours under an existing employer policy or collective bargaining agreement.  Accordingly, employees who must take two doses of a COVID-19 vaccine are entitled to take up to eight hours (i.e., four hours per injection) of leave.  The paid leave provision expires on December 31, 2022.

Continue Reading New York Employers Now Required to Provide Paid Leave to Take COVID-19 Vaccine

Effective January 1, 2021, California employers will be required under Assembly Bill (AB) 685 to provide detailed notices to employees when there is a COVID-19 case in the workplace and to notify local public health departments of COVID-19 “outbreaks” in the workplace.  California employers should begin assessing their practices now to ensure that they will be ready to comply with AB 685 come January 1.

Below is a summary of the key requirements under AB 685 and recent California Department of Public Health (CDPH) guidance on AB 685, including FAQs and definitions.

Continue Reading California’s AB 685 Expands Employers’ COVID-19 Notification Requirements, Effective January 1

On November 30, 2020, emergency temporary COVID-19 workplace standards (“ETS”) issued by the California Division of Occupational Safety and Health (“Cal/OSHA”) took effect.  The ETS, which requires stringent workplace protocols intended to curb the spread of COVID-19, applies to all California employers, other than those subject to the Cal/OSHA Aerosol Transmissible Disease standard or those with only one employee at the workplace who does not have contact with others.  Under the ETS, employers must adopt and implement a comprehensive COVID-19 prevention program that includes identification and correction of COVID-19 risks, employee screening, investigation of cases, use of face coverings and other protective equipment, exclusion of exposed employees, and provision of free COVID-19 testing in certain circumstances, among other requirements.  The ETS also mandates testing and other action when there are multiple infections or an “outbreak” in a workplace.

Cal/OSHA promptly published a “Frequently Asked Questions” document (“FAQs”), a one-page summary of the ETS, and a Model Prevention Plan.  These documents shed additional light on the ETS and how it might be enforced.

Below is an overview of the key takeaways from the new ETS and subsequent Cal/OSHA publications.

Continue Reading California Employers Must Comply with New Cal/OSHA COVID-19 Workplace Safety Standards

In an effort to close gender and racial pay gaps, California Governor Gavin Newsom recently signed Senate Bill (SB) 973 to require certain California employers to submit an annual pay data report to the Department of Fair Employment and Housing (DFEH) starting next year. The new law largely mirrors the EEO-1 “Component 2” pay data reporting requirement, which was imposed by the Obama administration and has been suspended by the Trump administration.

Under SB 973, private employers that have 100 or more employees and are required to file an annual Employer Information Report (EEO-1) must submit a pay data report to the DFEH covering the prior calendar year. The report must include: (1) the number of employees by race, ethnicity, and sex in each of ten job categories (the same job categories used in the EEO-1); (2) the number of employees by race, ethnicity, and sex whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics; and (3) the total number of hours worked by each employee counted in each pay band. Employers with multiple establishments in California must submit a report for each establishment and a consolidated report that includes all employees. Employees include all individuals on payroll, whether full- or part-time, for whom the employer must withhold federal social security taxes and include in an EEO-1 Report.

Continue Reading California to Require Annual Pay Data Reporting to DFEH