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)

Celebrating Its 23rd Anniversary – S&W Promotes Three New Partners and Launches New Website

by Gerald Sauer

On the 23rd anniversary of its founding, Sauer & Wagner LLP is pleased to announce the promotion of Gregory Barchie, Amir Torkamani and Sonya Goodwin to Partner.  

Gregory Barchie has substantially litigated commercial, entertainment, real estate, employment, and intellectual property disputes in federal and state courts and in private arbitrations. Greg joined S&W in 2015 and has served as a member of the Board of Governors of the Beverly Hills Bar Association, President of the “Out of Court” section of the Beverly Hills Bar Association, and President of the Southern California Business Litigation Inn of Court. He successfully defended a guarantor on a multi-million-dollar loan case involving the “sham guaranty” doctrine and prevailed on several anti-SLAPP motions including against claims for breach of contract/lease in an environmental contamination case, and fraud and intentional interference with economic advantage in a dispute between a borrower and mortgage loan brokers.

Amir Torkamani, who joined S&W in June 2012, focuses on commercial, entertainment, real estate, employment, and intellectual property litigation and has substantial experience handling jury and bench civil trials in federal and state courts, as well as litigating disputes in private arbitrations. He was recognized for obtaining one of the Top 100 Jury Verdicts in California in 2019 and was named a Rising Star by Southern California Super Lawyers in 2013 – 2018. Amir’s successes include the favorable settlement of a multi-million-dollar real estate dispute involving return of a substantial security deposit after the tenant had failed to pay rent and substantially damaged the property, as well as a commercial lease dispute involving a tenant facing eviction and substantial interruption of a machining and product development company.
Amir received a Bachelor of Arts degree in political science and a Bachelor of Science degree in business administration, both at the University of California, Berkeley. He earned his J.D. from the University of Southern California.

Sonya Goodwin joined S&W at the end of 2019. She has focused her practice exclusively in the employment arena, counseling both employers and employees in a wide variety of employment issues including wage and hour issues, discrimination, harassment, retaliation, wrongful termination, defamation, intentional infliction of emotional distress and breach of contract, as well as conducting investigations of workplace issues. She serves on the Executive Committee of the Beverly Hills Bar Association’s Labor and Employment Law Section.

Sonya earned her Bachelor of Arts degree, in history and international studies, from the University of California, San Diego. She attended UCLA School of Law, where she received her J.D.

S&W also released its redesigned website as part of the celebration of its 23rd anniversary. The website is located at   

Judge Orders Preliminary Injunction on Law Prohibiting Mandatory Arbitration Agreements in California

by Gerald Sauer

Earlier this month, a District Court judge issued a preliminary injunction on the enforcement of Assembly Bill 51 (“AB 51”), the new law that prohibits mandatory arbitration agreements in the employment context.   The business groups that filed suit against the bill argued that it was preempted by the Federal Arbitration Act (“FAA”) because (1) it puts arbitration agreements on an unequal footing from other contracts, which is prohibited by the FAA, and (2) it conflicts with the objectives of the FAA to promote arbitration.  

In her order, the judge found that the business groups were likely to prevail on the merits and face irreparable harm if the preliminary injunction is not issued.  However, it is important to note that the injunction only applies to arbitration agreements covered by the FAA – in other words, if the employment relationship involves interstate commerce. 

Accordingly, mandatory arbitration agreements governed by the FAA are still enforceable in California, for now.  The law was set to go into effect on January 1, 2020, but is now on hold until the judge makes a final decision on the merits, or the preliminary injunction order is appealed to the Ninth Circuit and, possibly, to the U.S. Supreme Court.  Either way, this issue is not likely to be resolved by the end of this year. 

California Consumer Privacy Act (CCPA)

by Gerald Sauer

The new year has brought with it many changes in the law that affect employers and employees in California.  One of those laws, the California Consumer Privacy Act (CCPA), became effective January 1, 2020 and will be enforced starting July 1, 2020.  The law, enacted in 2018, requires for-profit businesses (including most employers) to disclose to consumers (including employees) certain categories of data collected by the business and requires the deletion of data upon request by the consumer. 

Employers are exempt from some of the law’s provisions until January 1, 2021. Here is a guide to help employers determine if the CCPA applies to them and how it will impact their business in the next year:

What is a covered entity?

The CCPA applies to any for-profit business who meets these criteria:

Applicants, employees, and independent contractors have a right to request (1) that the business tell them what personal information it has collected, sold, or disclosed, and to whom; (2) that the business delete their personal information; (3) a copy of the information that has been collected, sold, or disclosed; and (4) to opt out of the sale of their personal information. Employees may not be retaliated against for exercising these rights.

  • Has annual gross revenues in excess of $25 million; OR
  • “Alone or in combination, annually buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes, alone or in combination, the personal information of 50,000 or more consumers, households, or devices;” OR
  • “Derives 50 percent or more of its annual revenues from selling consumers’ personal information.”

A “consumer” is any “natural person who is a California resident,” which includes a “job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business.”

How will this impact covered employers starting January 1, 2020?

  1. Covered employers must provide notice of the type of data collected from their employees and customers and the purpose of the collection. Data is defined broadly to include “professional or employment related information,” “education information,” “identifiers,” “characteristics of a protected category,” “biometric information,” “internet activity,” “inferences drawn regarding a consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes,” and “geolocation data.”
  2. A private right of action (on an individual or class-wide basis) allows recovery of statutory damages ranging from $100-$750 per employee per incident for any unauthorized disclosure or access to the data.
  3. Applicants, employees, and independent contractors have a right to request (1) that the business tell them what personal information it has collected, sold, or disclosed, and to whom; (2) that the business delete their personal information; (3) a copy of the information that has been collected, sold, or disclosed; and (4) to opt out of the sale of their personal information. Employees may not be retaliated against for exercising these rights.

Employers do not have to delete data that is maintained solely for internal uses reasonably in line with the purpose for which it was collected (i.e. human resources or other employment-related purposes), or if required to comply with a legal obligation. Given that California employment laws require maintenance of employment records for at least three or four years, the deletion will not be required for most applicant, employee, and independent contractor data otherwise subject to the CCPA’s protections. 

If you have any questions about compliance with the CCPA, please contact us.

Employment Law Update – California’s Prohibition Against Mandatory Arbitration Agreements Remains On Hold

by Gerald Sauer

Last Friday, a federal judge ordered that the temporary restraining order precluding the State of California from enforcing Assembly Bill 51 (“AB 51”), the new law that prohibits mandatory arbitration agreements in the employment context, shall remain in place for now.  The judge initially granted a temporary restraining order on December 30, 2019, just two days before the law was to go into effect.  In addition to extending the stay precluding implementation of the new law, the judge also ordered supplemental briefing to determine if the stay will remain in effect until she rules on the merits of whether the new law is preempted by the Federal Arbitration Act.  At this point, California’s new law remains in limbo, and a final resolution may not occur this year or longer depending upon how quickly it takes this dispute to wind its way through the federal judicial system.      

We will provide updates as the story progresses.  In the meantime, if you have any questions about this latest development, please contact us