Arbitration – Time to Fix a Flawed Forum: Gerald Sauer’s article for the Journal of Consumer & Commercial Law

by Gerald Sauer

Businesses have increasingly embraces arbitration because it helps them avoid the roulette-wheel outcomes of jury trials. This article originally appeared in Law 360.

Arbitration has become a hot-button issue. In September, the House of Representatives passed the Forced Arbitration Injustice Repeal (FAIR) Act, intended to ban mandatory arbitration in the workplace, and California enacted AB 51, the latest state effort to protect workers from forced arbitration. The Economic Policy Institute and the Center for Popular Democracy predict that, by 2024, almost 83% of the country’s private, non-unionized employees will be subject to mandatory arbitration, an increase of 56% since 2017.

Read full story on the Journal of Consumer & Commercial Law

Gerald Sauer quoted in The Daily Journal article on contact tracing

The Daily Journal quoted Gerald Sauer in its article, “Contact tracing orders present dilemma for businesses.”

Gerald S. Sauer, a partner at Sauer & Wagner LLP who is not involved with the case, agreed with Kernkamp that layering on the data requirement would further impact restaurants.

“What happens to the information after this is over? You’re forcing a business that’s on life support to do something extra. It’s a burden. How do they know the list won’t be compiled, sold and monetized?” he said.

Privacy concerns are why tech firms including Apple and Google backed away from partnerships with governments for contact tracing, Sauer said. Business owners are also likely worried about facing liability from patrons over data disclosure.

“The longer the pandemic goes on, the more the erosion of privacy interests,” Sauer said. “There are crises you have to take steps for public welfare but you should view it like a game of chess, not checkers. Think about moves on the board down the road so you can anticipate what happens after. There shouldn’t be a patchwork approach. California has come up with a comprehensive plan in theory that still has holes in it in the use of private information to battle this virus.”

Read full story at The Daily Journal (subscription required)

Return to Work Plans During the COVID-19 Pandemic

by Sonya Goodwin

As the economy has started to open back up, employers of all kinds should have a return to work plan in place to prepare for the inevitable return of employees to the workplace. Here are just some tips on how to plan for that return:

  • Communicate, communicate, communicate
    • Many people are experiencing heightened anxiety and fear due to all of the unknowns right now. While employers are also trying to navigate the many unknowns, it is beneficial to keep employees informed of tentative dates of reopening (to the extent possible and with the understanding that these dates are flexible), what the “new normal” might look like when they get back to the office, and what the employer will do to ensure a safe work environment. Sending periodic emails about these items prior to opening the workplace might relieve some of the anxieties that employees are facing right now.
    • Many employees will be scared or reluctant to come back to work. It is best practice to be aware of employee’s concerns, and remain communicative on what you are doing to create a safe work environment for employees. Remind employees to talk to their supervisors/HR if they have any issues so they can be addressed early on. It is also important to remind employees that they will not be retaliated against for expressing their concerns.
  • Social Distancing Measures
    • Consider restructuring the workplace to increase physical space between employees, as well as customers and other visitors. This may include installing plexiglass or other physical barriers, or removing some chairs or tables in break rooms and other common spaces to reduce the risk of too many employees congregating.
    • Host meetings virtually when possible, or limit the amount of people physically present.
    • If possible, stagger attendance or limit who can be at the workplace to “essential” employees and allow others to work remotely.
    • Stagger breaks to limit the amount of people in the break room or other common areas at any given time.
    • Discourage people from shaking hands, hugging, or otherwise coming into physical contact with other individuals (including customers and vendors). 
    • Limit business travel
    • Require customers to pay online or via a handsfree device to limit the exchange of money and credit cards
  • Safety Measures
    • Remind employees to engage in appropriate hygiene practices, including washing hands regularly, covering their mouths when they cough, not touching their eyes, nose, or mouth, etc.
    • Require employees to wear personal protective equipment (PPE) like masks and gloves when around other individuals, including employees, customers, and vendors.
    • Provide tissues, no touch receptacles, soap and water, hand sanitizer, and cleaning sprays/wipes to employees to help them keep their workspace clean. 
    • Be diligent about cleaning the workplace. Designate an employee(s) to clean high-touch areas throughout the day and remind employees to keep their workspace clean. 
  • Employee Screening Procedures
    • Employers have different options for screening employees during the pandemic that would not otherwise be legal under the Americans with Disabilities Act. Employers may take employees’ temperatures before they are allowed to enter the workplace, or may require employees to get tested for COVID-19 before coming to work. 
    • Employers may ask employees if they are exhibiting common symptoms of COVID-19, such as fever, cough, shortness of breath, or sore throat. Remember to check the CDC website continuously, as the symptoms continue to expand and evolve.
    • Send home any employee who is exhibiting signs of COVID-19 or have a temperature of 100.4 of higher.
    • However, it is important to consider the following:
    • There are specific notice requirements under California law that may be implicated if employers plan to take temperatures or require tests. Check with legal counsel before doing this. 
    • Taking temperatures or tests are not complete safeguards, since some individuals who have the virus may not experience fevers, and a negative COVID-19 test one day doesn’t mean the employee will not be infected the next day. 
    • If checking temperatures, it is recommended to designate a specific person(s) to do this, and maintain a confidential log. It is also recommended to get a contact-free thermometer to reduce the risk of exposure.
    • Non-exempt employees who are sent home early may need to be paid reporting time pay.
    • Non-exempt employees should be paid for time spent taking their temperature or COVID-19 tests if required by the employer.
    • Employers must adhere to privacy laws and keep all medical information confidential, and maintain medical files separate from personnel files.
  • Accommodating Employees
    • Some employees may have underlying health conditions that put them at greater risk of contracting the virus. These individuals may need to be accommodated under the ADA and FEHA or other applicable state laws.
    • Employees with mental health conditions that have been exacerbated by the pandemic may need to be accommodated. 
    • Employees who have child care issues may need to be accommodated under the Expanded Family Medical Leave Act or local ordinances.
    • Remember that a leave of absence is only a reasonable accommodation if there are no other accommodations available that would allow the employee to continue working. Consider various options to try to allow the employee to continue working, and engage with the employee to determine what the employee’s limitations are and how they may be accommodated.
  • Planning for Future Outbreaks
    • As the economy opens back up and people are permitted to return to work, the virus will continue to spread. Create a plan for if/when an employee, customer, or vendor notifies you that he/she has been infected. This should include determining how to inform employees while maintaining confidentiality; cleaning the workplace thoroughly and perhaps hiring a third-party cleaning service to conduct a deep-clean; informing vendors and customers of any temporary shutdown of the business; hiring temporary workers to continue operations if a portion of the workforce is out sick.
  • Remember to comply with all wage and hour laws, and avoid potential claims of discrimination by treating all employees equally, unless they request accommodation (i.e. don’t exclude individuals over 65 or other high-risk individuals from the workplace just because they are higher risk – wait until they ask for accommodations before assuming they need one)

Civil court closures will have lasting impact: Gerald Sauer’s article for The Daily Journal

by Gerald Sauer

COVID-19 has turned the world as we know it upside-down, but it has done quite a number on the civil court system. In its rush to close courts to protect public health, the California Judicial Council and the Los Angeles County courts have set civil litigants back to a point from which it will be difficult to recover.

Relegated to the back of the line behind “essential” matters such as criminal, delinquency, dependency, family and mental health matters, civil trials have effectively gone into la-la land. It could be years before people who have been injured see justice. Civil cases that would have been resolved in two years will now likely drag on for more than four years. The result will be not just ongoing financial hardship for people who have suffered real injuries and deserve to be restored to pre-injury economic status, but mental and emotional trauma that we’ll see playing out into the foreseeable future: higher levels of addiction, suicide, domestic violence and self-abuse.

Read full story on DailyJournal.com (subscription required)

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