With the Georgia Senate race and control of the Senate hanging in the balance, a Biden Administration’s ability to enact new employment-related legislation is questionable. However, with the stroke of a pen, a Biden Administration can make significant changes through Executive Order. In this post, we attempt to identify several areas where rule by Executive Order may come.
Erin M. Connell, Co-chair of Orrick's EEO & OFCCP Compliance Group and Pay Equity Task Force, represents employers in high stakes employment litigation and is a leader in equal employment opportunity law, pay equity, and OFCCP compliance.
Erin's practice covers all aspects of employment law. She defends employers in class actions and other complex cases, as well as in systemic investigations and audits by the EEOC, OFCCP, and the California DFEH. Erin has led dozens of internal pay equity analyses and is a trusted advisor for several of the nation's most prominent employers on developing areas of employment law, including DEI, OFCCP compliance, pay equity, and issues stemming from the COVID-19 pandemic.
Erin also is an accomplished trial lawyer. She has tried several cases before juries and in arbitration, and has obtained numerous defense summary judgment rulings and other favorable resolutions in state and federal court. Erin led the trial team that obtained a complete dismissal for Oracle in OFCCP v. Oracle, the largest pay equity case ever brought by OFCCP, which garnered national media attention and earned Erin recognition as a "Litigator of the Week" by the American Lawyer and a 2021 Employment MVP by Law360.
Erin's clients include leading technology and Fortune 500 companies, including: Oracle, Facebook, Microsoft, Netflix, Pinterest, PayPal, Sony Interactive Entertainment, NVIDIA, Airbnb, SiriusXM, Dropbox, Amgen, Dolby, Splunk, Morgan Stanley, Bank of America and Delta Dental.
Erin is currently a member of the Board of Directors of the Bar Association of San Francisco, a faculty member with the Institute for Workplace Equality (IWE), and frequently speaks on California and national employment law issues, including for IWE, the ABA, the Practicing Law Institute (PLI) and the American Employment Legal Council (AELC). She was formerly the management chair of the ABA Equal Employment Opportunity Committee. She has published numerous articles on employment law in publications around the country, including the ABA Journal of Law & Employment Law. She also provides employment law training and conducts internal investigations on employment-related matters.
Posts by: Erin Connell
On October 21, 2020, OFCCP released a highly anticipated Request for Information (“RFI”) seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding diversity-related training, workshops, or similar programming provided to employees. This RFI follows President Trump’s recent Executive Order on Combating Race and Sex Stereotyping (“Executive Order”), which purportedly prohibits federal contractors from promoting race or sex stereotyping or scapegoating through workplace training (see prior blogs on this subject here and here). READ MORE
On October 7, 2020, OFCCP issued initial guidance regarding President Trump’s recent executive order prohibiting certain diversity-related training by federal contractors (“Executive Order on Combating Race and Sex Stereotyping”). As we previously reported, under this Executive Order, all government contracts entered into after November 21, 2020 must contain certain provisions related to the prohibition of workplace trainings that encompass “race or sex stereotyping” or “race or sex scapegoating,” and covered contractors are prohibited from implementing such trainings in their workforces. READ MORE
On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping prohibiting certain diversity-related training in the federal workforce and among government contractors. Specifically, the executive order provides that the United States will not promote “race or sex stereotyping or scapegoating” in the federal workforce or in the Uniformed Services, the government will not allow grant funds to be used for those purposes, and federal contractors cannot “inculcate such views in their employees.” While the executive order may have significant implications for contractors, the lasting impacts are currently uncertain, including in light of the upcoming election and expected legal challenges. READ MORE
On September 9, 2020 Governor Newsom signed AB 1867 into law, giving California employers just 10 days to implement new COVID-19 Supplemental Paid Sick Leave statewide. Below we highlight the major provisions of the new law (Labor Code 248.1, or “LC 248.1”) as well as nuances employers should keep in mind as they put their program into place. (For clarity, we refer to this new leave as “LC 248.1 leave” to avoid confusion between this new statewide mandate and other federal and local laws expanding available paid sick leave due to COVID-19.) READ MORE
[Update: The Ordinance was enacted on July 3, 2020.]
In an unprecedented move, on June 23, 2020 the San Francisco Board of Supervisors voted in favor of legislation that requires San Francisco employers with 100 or more employees to “offer a right to reemployment” to certain workers whom the employer laid off due to the COVID-19 pandemic and its resulting shelter-in-place orders. According to the city’s rules, this ordinance goes into immediate effect upon signature by San Francisco Mayor London Breed, which must occur within 10 calendar days of receipt of legislation. Unless reenacted, the ordinance will expire on the sixty-first day after its enactment. READ MORE
As we reported in our previous blog post, the city of San Francisco recently enacted the Public Health Emergency Leave Ordinance (“Ordinance”) which requires certain employers to provide employees with paid leave for specified reasons related to COVID-19. This week, the San Francisco Office of Labor Standards Enforcement issued Implementation Guidance (“Guidance”) regarding the new Ordinance. The Guidance sheds light on important issues such as the scope of the Ordinance, the amount of leave available under the Ordinance, how to calculate rate of pay, and notice requirements under the Ordinance.
Employers’ obligation to provide safe workplaces for employees is hardly new. The current COVID-19 pandemic, however, has forced health and safety at work to be top-of-mind across U.S. industries in ways not previously contemplated. Over the past several weeks, the Occupational Safety and Health Administration (OSHA) has issued important guidance regarding COVID-19, focusing specifically on what employers can and should do to ensure their workplaces are safe. Not only is compliance with OSHA’s guidelines important from the standpoint of ensuring worker safety, but failing to do so also can lead to legal risk and liability, as evidenced by a recent OSHA investigation involving Amazon, litigation filed this week, and an April 8 OSHA press release explaining how workers can file OSHA whistleblower claims. READ MORE
In response to the ongoing Coronavirus pandemic, on April 7, 2020, San Francisco and San Jose issued emergency orders providing supplemental paid sick leave to certain employees working within their cities. Below are the key points Bay Area employers need to know. READ MORE
On March 31, 2020, the six Bay Area counties that previously issued the nation’s first Covid-19 shelter-in-place orders, amended and extended their prior orders to include stricter controls aimed to slow the spread of COVID-19. The new orders, which are now in effect in Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara counties (as well as the City of Berkeley) have a new end date of May 3, 2020 – a change from the prior end date of April 7, 2020. They also revise and narrow the scope of businesses deemed essential, and expressly require any employer with employees who are working on-site to develop a “Social Distancing Protocol” that must be posted in the form required by the orders. The new orders also acknowledge Governor Newsom’s statewide March 19, 2020 Executive Order N-33-20, but explain they are, “in certain respects more stringent” than the statewide order in order to address “the particular facts and circumstances” in the county and in the Bay Area. Accordingly, they explicitly state, “Where a conflict exists between this Order and any state public health order related to the COVID-19 pandemic, the most restrictive provision controls.” READ MORE