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
Erin’s practice covers all aspects of employment law, as well as complex business litigation outside the employment context. Erin has successfully defended numerous class actions, EEOC systemic discrimination investigations, and complex individual cases involving claims of discrimination, harassment, retaliation, wrongful termination, and wage-and-hour claims. Erin has particular expertise in the area of pay equity, compensation analyses, and diversity initiatives; and regularly advises clients with respect to OFCCP and other EEO audits.
Erin also is an accomplished trial lawyer. She has tried several cases before juries and in arbitration, and has successfully 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, a high-stakes systemic compensation discrimination case that garnered national media attention. Erin was named, "Litigator of the Week" by American Lawyer for her successful defense representing Oracle in litigation against the OFCCP.
Erin's clients include leading technology and Fortune 500 companies, including: Oracle, Facebook, Netflix, Pandora, Pinterest, NVIDIA, NetApp, Splunk, Morgan Stanley, Bank of America, Citigroup, and Seagate Technology.
Erin is currently the management chair of the ABA Equal Employment Opportunity Committee, and frequently speaks on California and national employment law issues. She has published numerous articles on employment law in publications around the country, including the ABA Journal of Labor & Employment Law. She also provides training on managing within the law and preventing sexual harassment, and conducts internal investigations on employment-related matters.
Posts by: Erin Connell
[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
As a follow-up to Executive Order N-33-20, on March 20, Governor Newsom’s office released a 14-page report which provides additional guidance regarding “essential business operations” in California. Originally, the Governor’s Executive Order directed California workers to the Cybersecurity and Infrastructure Security Agency (CISA) website to determine whether they qualify as essential to one of 16 federal critical infrastructure sectors. The 14-page report narrows “essential business operations” to workers in 13 sectors: (1) Healthcare/Public Health, (2) Emergency Services; (3) Food and Agriculture, (4) Energy, (5) Water and Wastewater, (6) Transportation and Logistics, (7) Communications and Information Technology (8) Other Community-Based Government Operations and Essential Functions, (9) Critical Manufacturing, (10) Hazardous Materials, (11) Financial Services, (12) Chemical, (13) and Defense Industrial Base. READ MORE
On the evening of March 19, 2020, California Governor Gavin Newson issued Executive Order N-33-20, which requires all individuals living in the State of California to stay home or at their place of residence except “as needed to maintain continuity of operations of the federal critical infrastructure sectors,” as outlined by the Cybersecurity and Infrastructure Security Agency (CISA). This order, which applies to 40 million California residents, is intended to slow the spread of the novel Coronavirus (COVID-19). In issuing the Order, Governor Newsom suggested that 56 percent of Californians (more than 25 million people) could be infected over the next eight weeks. Although the Order states it is to go into effect immediately and shall stay in effect until further notice, Governor Newsom also emphasized this is “not a permanent state.” READ MORE
In yet another development in the closely watched case of Rizo v. Yovino, the en banc Ninth Circuit ruled that employers may not defeat a plaintiff’s prima facie case under the Equal Pay Act (EPA) by arguing prior pay is a “factor other than sex” within the meaning of the statute. By doing so, the Ninth Circuit reaches the same result as the previous opinion penned by the late Judge Stephen Reinhardt before his passing in 2018, including overruling Kouba v. Allstate, a prior Ninth Circuit opinion that held that prior pay could justify pay differentials in combination with other factors, and if relied upon reasonably and to effectuate a business policy. The majority opinion further holds that as a matter of statutory interpretation, a “factor other than sex” within the meaning of the EPA must be “job related,” yet it also makes clear that the EPA does not prohibit employers from considering prior pay in making starting pay offers (and in this regard differentiates the opinion from California’s salary history ban). Two separate concurring opinions agree with the result, but they criticize the majority opinion for giving too narrow a reading of the EPA’s fourth “catch all” defense and for embracing a view of prior pay that puts the Ninth Circuit at odds with other circuits and guidance from the U.S. Equal Employment Opportunity Commission (EEOC). READ MORE
Last week, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020. The ruling is the latest in a lengthy saga regarding whether EEO-1 Component 2 pay data (data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex) would be collected—a saga that began with the Office of Management and Budget staying collection efforts, and culminated last Spring when Judge Chutkan ruled the decision to stay the collection lacked the reasoned explanation required by the Administrative Procedure Act (see overview here). After vacating the stay, Judge Chutkan initially set the deadline for data collection for May 31, 2019, but later extended it to September 30, 2019. READ MORE