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)
by Gerald Sauer
It has taken a global pandemic to finally move legislators in DC toward progress on consumer privacy issues. Despite an urgent need for a comprehensive legal framework to protect personal data, more than a year after it first began looking at a federal scheme, Congress has not managed to reach consensus on a framework such as the European Union's GDPR or the California Consumer Privacy Act (CCPA). Now, calls from public health experts to implement a system of contact tracing of individuals infected with COVID-19, and a seat-of-the-pants Senate proposal, have put data protection into hyperdrive.
We're at a critical juncture, with the health crisis driving us toward a quick fix that could jeopardize the broader public interest. It's the perfect moment for Congress to put differences aside and enact comprehensive federal data privacy laws, while also addressing the unique challenges of data collection during the coronavirus pandemic. A powerful cure is needed for the country's data privacy disease, not simply an interim coronavirus relief patch that could, as explained below, open a Pandora's box of problems.
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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 www.swattys.com.
For legal professionals, this new virus has completely rewritten how business is done. Courthouses are closed, office buildings are empty and a lot of things that once were urgent have suddenly been put on indefinite hold.
by Gerald Sauer
The novel coronavirus pandemic is reshaping our world in ways large and small, from compulsive hand washing to take-out meals to home-schooling. As we’re all forced to shelter in place, we find ourselves connecting with others in ways we may not have known about (e.g., Zoom), and in ways we never truly appreciated (e.g., email, texting, messaging).
For legal professionals, this new virus has completely rewritten how business is done. Courthouses are closed, office buildings are empty and a lot of things that once were urgent have suddenly been put on indefinite hold. We no longer meet in person with clients, we’ve stopped going to court, and we can’t even enjoy collegial get-togethers to exchange business cards and referrals.
Read full story on Law.com [Subscription Required]
Basic tenets of civility and decorum in the legal profession are being drowned out by a win-at-any-cost mentality, writes Gerald Sauer, founding partner at Sauer & Wagner LLP in Los Angeles. Legal rules, ethics standards, and principles of civility were established not for the purpose of being pushed and broken, but to ensure a system of fairness, he says.
by Gerald Sauer
Recently, a judge before whom I appeared told me that I had an “old-school sense of ethics.” Her comment took me by surprise, but upon further reflection I realized that she was right: I always wear a suit and tie to court; I stand up when I’m speaking to a judge, and I treat witnesses and opposing counsel with respect. I’m decidedly “old school.”
How sad. That I’m considered an outlier in my profession speaks to the pervasive degradation of the practice of law. In a society increasingly defined by the norms of reality TV, it seems to have become acceptable for lawyers to push buttons and break rules.
The coronavirus pandemic might be the biggest threat to employees — and the economy — since the 2008 recession. Are you protected if your employer cuts back your hours or lays you off?
If you need time off because you or a loved one is affected by coronavirus, or if your place of work or child’s school is closed, you may get up to two weeks’ paid sick leave under a proposed law that passed the House on March 13 and is expected to clear the Senate. As currently drafted, the law covers employers with fewer than 500 employees but exempts smaller employers who can prove economic hardship.
Some large employers are adopting policies to respond to the pandemic. On top of existing paid sick leave, Walmart will provide up to two weeks’ paid leave for ill or quarantined employees. Darden Restaurants, the parent of Olive Garden, will permanently provide paid sick leave to all hourly employees. State and local governments may also provide limited paid sick leave, and you might be eligible for state disability leave if you’re sick with coronavirus.
Until recently, employers had a lot of latitude to use, share and even market your private information.
Gone are the days when you could share droves of personal information with your employer without fear that the company could share or even sell that data outside the company.
After all, unlike other countries, the U.S. lacks universal comprehensive data protection laws except for narrow areas such as for medical information.
Luckily, new state laws strengthen your ability to control your information.
Last year, California passed the nation’s first comprehensive law designed to give consumers and employees more control over who has their personal information and what they can do with it. Other states, as well as Congress, are watching the California Consumer Privacy Act (CCPA) and some are moving to enact their own data privacy laws.
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.