COVID-19 rewrites the employment discrimination playbook

by Sonya Goodwin

The COVID-19 pandemic has completely rewritten the playbook for U.S. companies that do their best to avoid claims of employment discrimination. Until recently, these employers had just two or three boxes that needed to be checked before they could proceed with disciplining or terminating an employee: Protected class? Protected activity? Retaliation?

Now the “gotcha” list has become like the magic beanstalk that keeps growing, and companies large and small find themselves facing claims for routine business actions that never before would have raised red flags. A record number of lawsuits filed in 2020 allege discrimination or retaliation because of COVID-related issues, and that number is expected to grow significantly in 2021.

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Changes to court rules and procedures during COVID-19

by Gerald Sauer

The coronavirus pandemic has changed virtually everything we know about the practice of law. Attorneys now interact with their clients via Zoom conferences rather than in person. Documents are filed remotely, not hand-delivered. Trials now include remote jury selection, video attendance, masks and social distancing. Civil matters, already substantially backlogged, have moved into the slow lane.

The article examines statutory changes enacted during and in response to the pandemic, as well as procedural changes implemented by trial and appellate courts to help keep the justice system operating during this unprecedented time.

The Article Qualifies For California MCLE Self-Study Credit

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The Nondisclosure Agreement: Time to Revamp?: Gerald Sauer’s article for Bloomberg Law

Nondisclosure agreements serve an important purpose, but the time has come to reign them in, writes Gerald Sauer, a founding partner at Sauer & Wagner LLP in Los Angeles. When drafted too broadly NDAs can cause harm to those who sign them, and may even violate laws or be unconstitutional, he says.

by Gerald Sauer

The nondisclosure agreement is as American as apple pie. Lawyers can recite Nondisclosure Agreement (NDA) terms in their sleep, and nobody would, until recently, have done anything of substance without one.

We now seem to be in NDA free fall. Ex-administration officials write tell-all books; former business partners openly talk about their experiences; and family members air dirty laundry. All of them signed nondisclosure agreements.

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Return to Work Is a Double-Edged Sword: Sonya Goodwin’s article for The Recorder

by Sonya Goodwin

The state of California, along with the rest of the country, is reopening – in fits and starts. Those who still have jobs face the prospect of returning to unsafe workplaces. Companies still in business are trying to figure out how to stay above water financially while complying with ever-changing health and safety mandates.

Even though law firms have suffered along with the rest of the business world – many have downsized substantially during the pandemic – there is no shortage of work for employment attorneys. The list of potential actions by workers against their employers is growing to unprecedented levels. But there are strategies that can forestall the avalanche of claims.

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California bill aims to make contact tracing feasible and safe

by Gerald Sauer

Contact tracing is universally recognized as a key weapon in the fight against the spread of the coronavirus pandemic, and it has been successfully implemented in countries around the world. In the United States, however, contact tracing is presently more concept than reality. People just don’t trust the government with their personal information, and for good reason. Despite being protected by the nation’s most stringent data privacy laws, Californians continue to witness a haphazard approach to their privacy by the vary entities entrusted with their data.

How then can they be expected to feel sanguine about having their real- time location and health information tracked and shared with others? Proposed federal legislation introduced in the U.S. Senate on May 7 was ostensibly designed to protect personal data collected for purposes of contact tracing, but it is full of holes. S.3663, the COVID-19 Consumer Data Protection Act of 2020, would actually impose few meaningful restrictions on the use of collected data, would afford no private right of action for abuse, and would supersede state laws such as the California Consumer Privacy Act with respect to contact tracing data.

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