Last year, California Governor Gavin Newsom signed Assembly Bill (“AB”) 5, which signaled a seismic shift in the way California employers classify workers as either independent contractors or employees.  On September 4, 2020, Governor Newsom signed AB 2257, which modifies (slightly) some of the rules and provisions of AB 5.

To recap, AB 5 codified the California Supreme Court’s decision in Dynamex.  In Dynamex, the Supreme Court rejected the multifactor test set forth in S.G. Borello & Songs, Inc. v. Department of Industrial Relations for classifying workers and announced a new, more objective standard for determining worker classification for the purposes of the California wage orders.  Under this new standard, the burden is on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the coverage of the California wage orders.  In order to satisfy this burden, the hiring entity must establish all of the following:  (1) that the worker is free from the control and direction of the hiring entity in connection with the performance of work, (2) that the worker performs work that is outside the usual course of the hiring entity’s business, and (3) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Continue Reading California Modifies the ABC Test – But It Doesn’t Really Help

The Department of Labor (DOL) recently modified its guidance regarding leave under the Families First Coronavirus Response Act (FFCRA). These changes pertain most significantly to the applicability of FFCRA leave to employees of health care providers and the intermittent use of FFCRA. The changes – which take effect on September 16, 2020 – are a response, in part, to a recent New York federal district court opinion invalidating some of the DOL’s prior guidance. (See here.)

Here’s what you need to know about the DOL’s new guidance:

Health Care Providers. The DOL narrowed the applicability of the FFCRA exemption for health care providers.  Under the new guidance, not all employees of health care providers are exempt from FFCRA. Only the following employees may be excluded: (1) licensed doctors of medicine, nurse practitioners, chiropractors, dentists, and others permitted to issue FMLA certifications under 29 C.F.R. 825.125; and (2) employees who provide diagnostic, preventive, or treatment services, or “other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” This exemption includes, among others, nurses, medical technicians, and laboratory technicians. We recommend that health care providers seeking to exempt some employees from FFCRA talk to their legal counsel about whether the exemption applies.

The DOL encourages health care providers to minimize use of the exemption to the extent possible in order to prevent the spread of COVID-19. Employers may choose to allow some types of FFCRA leave (e.g., leave for employees with COVID-19 symptoms) and not others (e.g., childcare leave).
Continue Reading Department of Labor Narrows FFCRA Exemption for Health Care Providers and Affirms Guidance Regarding Intermittent Leave

On the day that its temporary rule was set to expire, the Oregon Bureau of Labor and Industries (“BOLI”) issued a permanent rule to allow employees to continue to avail themselves of protected “sick child leave” under the Oregon Family Leave Act (“OFLA”) to care for a child whose school or childcare provider has been closed in conjunction with a statewide public health emergency, including COVID-19. We previously blogged about BOLI’s temporary rule here.

Based on public comment received during the permanent rule-making process, as well as the fluid nature of safety protocols with respect to childcare providers and school re-openings, the agency determined that its now permanent rule would benefit from additional, immediate clarifications to other OFLA rules.  Accordingly, BOLI simultaneously issued another set of temporary rules (effective September 14, 2020 through March 12, 2021) of which employers should be aware both with respect to implementing the expanded sick child leave and to the extent they want to provide input during the public comment period.

Under the temporary amendments, BOLI broadly defines “childcare provider” to include any “place of care” or person who cares for a child. “Place of care” includes day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs.  The physical location does not have to be solely dedicated to such care.  A person who cares for a child includes nannies, au pairs, babysitters, and individuals who regularly provide childcare at no cost, for example, grandparents, aunts, uncles, or neighbors.
Continue Reading BOLI Permanently Expands OFLA for Eligible Working Parents Impacted by COVID-19

The Oregon Health Authority recently updated the state’s COVID-19 guidance to expand the use of face coverings to public and private offices. Under the new rule, masks, face coverings, or face shields are required at all times for office employees, including in hallways, bathrooms, elevators, lobbies, break rooms, and other common spaces, unless employees…

On August 3, 2020, a federal judge in the Southern District of New York held that four provisions of the U.S. Department of Labor’s (DOL) Final Rule (the Final Rule) implementing the Families First Coronavirus Response Act (FFCRA) are invalid.  This ruling is limited for now, as the court did not issue a nation-wide injunction, but its reasoning could be applied in other jurisdictions around the country.  For that reason, employers should be aware that changes to FFCRA obligations may be forthcoming.

As we discussed in a previous post, the FFCRA obligates employers to offer sick leave and expanded family leave to employees who cannot work because of certain reasons related to the pandemic.  At issue here are two major provisions of the FFCRA: Emergency Family and Medical Leave Expansion Act (EFMLEA), which entitles employees to partially paid leave to care for a dependent child due to COVID-19 school or daycare closures, and the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide paid sick leave to employees who are experiencing one of six qualifying COVID-19-related circumstances.  (See here for additional information.)

After concluding that New York had standing to challenge DOL’s Final Rule, the court considered the validity of four provisions: the work-availability requirement, the definition of health care provider, the prohibition on intermittent leave, and the documentation requirements.
Continue Reading New York Federal District Court Rules Four Provisions of COVID-19 Paid Leave Rule Invalid

On July 1, 2020, legislation went into effect providing additional protections for certain hotel and motel employees in Seattle.  The legislation was enacted to protect Seattle hotel workers from harassment and discrimination, unsafe workloads, and job insecurity and to provide increased access to medical care.

Hotel Employees Safety Protections

In hotels and motels with 60…

The legal landscape continues to shift rapidly during the COVID-19 pandemic.  As we reported here and here, Equal Employment Opportunity Commission (“EEOC”) guidance allows employers to require employee temperature checks, as well as worker testing aimed at detecting COVID-19, even though such testing by an employer would ordinarily raise issues under the Americans with…