Avalon Fitzgerald

Senior Associate

Sacramento


Read full biography at www.orrick.com

Avalon uses her analytical skills and thorough understanding of the litigation process to guide clients through high-stakes employment matters.

Avalon learned firsthand how cases are decided while clerking for Ninth Circuit Judge Consuelo M. Callahan and District Judge Morrison C. England. These experiences provided her with a clear view of how to effectively litigate a case from the initial complaint through the appellate process. Using a mix of sharp advocacy, strategic thinking, and a strong work ethic, Avalon helps clients navigate litigation and obtain effective results. She draws upon that invaluable experience to help Fortune 500 companies resolve a variety of employment matters, from federal single-plaintiff discrimination and retaliation litigation to wage and hour class actions in California state court. She is currently helping to defend a global technology leader from the largest OFCCP litigation to date. 

In recognition of her achievements, she was recently named to the Sacramento Business Journal’s “Best of the Bar” list. 

As a former federal law clerk, Avalon understands the importance of advocacy both in and out of the courtroom. She’s a board member of the Federal Bar Association’s Sacramento Chapter, a Lawyer Representative to the Ninth Circuit, and the Vice Chair of the Eastern District of California’s Judicial Conference.

Posts by: Avalon Johnson Fitzgerald

COVID-19 Update: Department of Labor Issues Further FFCRA Guidance

On Thursday March 26, the Department of Labor issued additional guidance about the Families First Coronavirus Response Act (“FFCRA”). The new guidance addresses a variety of topics including how the FFCRA applies to remote working, intermittent leave, worksite closures, reduction of hours and furloughs.

This week, the DOL also issued a fact sheet for employees and a fact sheet for employers. The required poster can be found here as well as FAQs about notice requirements. The DOL plans to implement formal FFCRA regulations in April.

Stay tuned for updates and check out our FFCRA FAQs here.

Coming to a Ballot Near You: Protect App-Based Drivers & Services Act

This November, Californians may get the chance to vote on a ballot measure that would address some of the fallout from the new independent contractor law known as AB 5. The proposed ballot measure is called the “Protect App-Based Drivers & Services Act.” The ballot measure would allow Californians to vote to protect their right to work as independent contractors with rideshare and delivery network companies throughout the state. READ MORE

New York Joins Board Diversity Reporting Bandwagon

New York State enacted the “Women on Corporate Boards Study” on December 30, 2019, with the goal of improving diversity on corporate boards. Effective June 27, 2020, the law requires the New York Department of State and Department of Taxation and Finance to conduct a study on the number of women who serve on boards of directors of companies doing business in New York State. To facilitate the study, the law requires foreign and domestic corporations to report to the Secretary of State the number of directors on their boards and to specify how many of those directors are women as part of the corporation’s filing statement.

The study will analyze the number of women directors and the total number of directors that constitute the board of each corporation, the change in the number of women directors from previous years, and the aggregate percentage of women directors on all boards in New York. The law also provides that the Department of State will publish a report regarding the study on or before February 1, 2022, with a new report required every four years thereafter.

The law is described as a “proactive approach to address historical inequality and end discriminatory practices,” with New York leading the way. In signing the legislation, Governor Cuomo stated, “[f]rom new pay equity laws to strongest-in-the-nation sexual harassment policies, New York is leading the fight for gender equality in the workplace—but our work won’t be done until women are better represented at the highest levels of organizations.” Cuomo further stated that the new study would “help shed light on the problem and guide the development of new policies to ensure more women have a seat at the proverbial table.”

The Growing National Trend in Board Diversity Efforts

New York is not the only jurisdiction to implement corporate reporting aimed at increasing board diversity. Illinois passed a corporate reporting law in August 2019, requiring corporations to include additional board composition information in annual reports submitted to the Secretary of State. The additional required information includes the gender of each board member, various processes for identifying and appointing executive officers, and the corporation’s policies and practices for promoting diversity and inclusion among its board and executive officers. Maryland also enacted reporting requirements effective October 2019, requiring certain corporations to include in their annual reports the number of women serving on the board of directors and the total number of board members.

This legislation follows in the footsteps of California’s first-of-its-kind law requiring women to be represented on boards. As we previously reported, in 2018, California passed a law requiring publicly held corporations based in California to have at least one woman director by the end of 2019. The law also provides that by the end of 2021, corporations with five or more directors on the board must have at least two female board members, and boards with six or more board seats must have at least three women board members. The law—currently being challenged on constitutional grounds—imposes significant penalties for failing to comply and calls for publishing the names of compliant and non-compliant companies.

Legislation to increase board diversity and to require corporations to report board diversity is a growing trend in response to the #MeToo movement. Employers should take heed of the growing interest in legislation aimed to increase board diversity and should remain on watch for developments in the jurisdictions where they operate. Indeed, board diversity has piqued Congressional interest, as exemplified by the House’s passage of the Improving Corporate Governance Through Diversity Act of 2019, which would require public companies to annually disclose the gender, race, ethnicity, and veteran status of their board of directors, nominees, and senior executive officers, and would require the Securities and Exchange Commission to establish a Diversity Advisory Group to study strategies for increasing gender, racial, and ethnic diversity among boards of directors. In addition, some companies are already taking the reins in pressuring businesses to increase board diversity: for instance, Goldman Sachs recently announced that it would not take companies public in the U.S. and Europe if they do not have at least one diverse board director.

An Ounce of Prevention Is Worth a Pound of Cure: California DFEH Clarifies Sexual Harassment Prevention Training Requirements

California’s Department of Fair Employment and Housing (“DFEH”) has updated its Employer FAQ guidance addressing the new sexual harassment prevention training requirements that were initially set to go into effect on January 1, 2020.  However, an amendment to the bill earlier this year moved the effective date to January 1, 2021.  As we reported when the initial bill was passed last year, the law expands harassment training requirements from employers with fifty or more employees to those with five or more employees, and from requiring training for supervisory employees only to requiring training for non-supervisory employees as well.  The training must be repeated once every two years. READ MORE

A Fair Victory? House Democrats Pass the FAIR Act to Limit Mandatory Arbitration

In 2018, the U.S. Supreme Court issued its landmark decision in Epic Systems Corp. v. Lewis—a decision that upheld the validity of class action waivers in arbitration agreements (discussed in our prior post). Since then, Democrats lobbied to overturn that decision. In 2018, Democrats introduced H.R. 7109, entitled the “Restoring Justice for Workers Act” to outlaw class action waiver provisions in employment contracts. Although that bill died in Congress, Democrats continue to pursue the fight to prohibit “forced” arbitration agreements and class action waivers. READ MORE

The Year of Dynamex: Navigating California’s Assembly Bill 5

On September 18, 2019, California Governor Gavin Newsom signed into law Assembly Bill 5 (A.B. 5). A.B. 5 relates to whether workers are employees or independent contractors. With this bill the California Legislature codified the ABC test set forth by the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal. 5th 903 (2018) and expanded its applicability. It expands the ABC test for independent contractor vs. employee classification to the California Labor Code and the California Unemployment Insurance Code.

A.B. 5 adds section 2750.3 and amends section 3351 to the California Labor Code and amends sections 605.5 and 621 to the California Unemployment Insurance Code.

Dynamex and the ABC test

For the last 30 years, California courts have addressed independent contractor v. employee classification using the test set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989). Under the Borello test, determining whether a worker was an employee or an independent contractor hinged on a number of factors and primarily focused on the alleged employer’s control over the manner and means by which the work is performed. On April 30, 2018, the California Supreme Court decided Dynamex, announcing a significant departure from the Borello test. The Dynamex decision adopted the so-called 3-part “ABC” test for determining whether an individual is considered an independent contractor or an employee under the wage orders, which govern many aspects of wages and working conditions in covered industries. Under the new 3-part ABC test, a worker is properly considered an independent contractor to whom a wage order does not apply only where the hirer establishes:

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work;
  2. The worker performs work that is outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation, or business.

For more background information on the Dynamex decision, please see our May 9, 2018 blog post.

A.B. 5

A.B. 5 codifies and expands the Dynamex 3-part ABC test, making it apply not only to claims arising out of the wage orders, but also apply to the California Labor Code and Unemployment Insurance Code. The new law also includes a provision that empowers the California Attorney General and city attorneys of cities with populations greater than 750,000 to seek injunctive relief to prevent the continued misclassification of employees as independent contractors. See California Labor Code section 2750.3(j).

In passing the bill, the legislature stated that it intended “to ensure workers who are currently exploited by being misclassified as independent contractors instead of recognized as employees have the basic rights and protections they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave.” The legislature further stated that “by codifying the California Supreme Court’s landmark, unanimous Dynamex decision, this act restores these important protections to potentially several million workers who have been denied these basic workplace rights that all employees are entitled to under the law.”

A.B. 5 includes carveout exemptions from the ABC test for various occupations and business relationships (such as lawyers, veterinarians, commercial fishermen, investment advisors, licensed private investigators and specified professional services providers) if the hiring entity can prove the specific requirements for exemption are met. See Cal. Lab. Code section 2750.3 (b)-(h). If the exemption applies, the Borello test governs the worker classification issue.

The application of the ABC test to the California Labor Code and Unemployment Insurance Code takes effect on January 1, 2020, with the applicability to workers’ compensation going into effect on July 1, 2020.

Next Steps

Under A.B. 5, the number of individuals who are considered employees in California for purposes of the wage orders, California Labor Code, and Unemployment Insurance Code will almost certainly increase. Now is the time to review your company’s practices related to independent contractors and talk to counsel for advice. We will continue to monitor any developments and are here to help.