On March 20, 2020, the Department of Homeland Security announced that it will defer the physical presence requirements associated with I-9s. Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. The new process is only for employers and workplaces that are operating remotely. If there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9. However, if newly hired employees or existing employees are subject to COVID-19 quarantine or lockdown protocols, DHS will evaluate on a case-by-case basis. READ MORE
Julia is an employment law expert and trial lawyer. She helps companies navigate and resolve challenging workplace issues and has extensive expertise in:
- Litigating and defeating harassment, discrimination, equal pay, disability and retaliation claims, including #MeToo and whistleblower allegations.
- Successfully resolving pre-litigation disputes and employment claims.
- The gig economy, independent contractor classification and agency temps, including AB-5 and the ABC test.
- Wage & hour class and PAGA actions, including defeating class certification for technology and retail companies.
- Arbitration agreements, employment policies, anti-harassment training and workplace compliance best practices.
- Defending companies against government charges and audits, including unemployment insurance matters.
- Employee complaints, workplace investigations, layoffs and employment terminations.
- Providing advice and counsel on a wide variety of employment issues for small, medium and large companies.
Julia has represented many tech and retail clients, including Lyft, SpaceX, PayPal, GitHub, Splunk, TaskRabbit, Unity Technologies and Williams-Sonoma, Inc. Julia and her Orrick partner Lynne Hermle won the 2017 California Lawyer of the Year award in Labor and Employment from California Lawyer for their defense verdict for SpaceX in a high profile sex harassment, discrimination, retaliation and disability case. The Daily Journal also named their two jury trial wins for SpaceX as top verdicts in 2016 and 2017, both affirmed on appeal. Orrick was named Employment Group of the Year in 2018 and 2019 by Law360 and The Recorder has named Orrick the "Litigation Department of the Year: Labor and Employment" in California four times.
Julia is also the Office Leader of the Orrick Silicon Valley office, loves animal rescue and drinks lots of coffee.
Posts by: Julia Riechert
On February 26, 2020, the National Labor Relations Board unveiled the final version of its rule for determining joint-employer status under the National Labor Relations Act. The Final Rule, which can be found here and which will take effect on April 27, 2020, will return to the “substantial direct and immediate control” standard. READ MORE
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
On September 12, 2019, the California Supreme Court issued its decision in ZB, N.A. v. Superior Court, which resolved a split of authority regarding whether an employer may compel arbitration of an employee’s Private Attorneys General Act (“PAGA”) claim seeking unpaid wages under Labor Code section 558. In reaching its conclusion, the Court first answered the “more fundamental question” of whether a plaintiff may seek unpaid wages under PAGA: to which the answer is no. Therefore, ZB’s motion to compel arbitration should have been denied. READ MORE
In the age of smartphones, virtually everyone has a recording device at his or her fingertips—including employees. This can present challenges in the workplace. For example, smartphones and other technology enable employees to secretly (read: illegally) record business meetings, disciplinary discussions with HR, and interactions with other employees. Not only does this violate privacy rights and trust, it also risks disclosing confidential company or employee information. Fortunately, employers are not without a remedy. California’s privacy laws offer protection against illegal recordings by employees. READ MORE
You may be asking yourself: How is it already almost 2019?! With the New Year fast approaching, for those employment law enthusiasts out there, here are some legal issues that you want to keep in mind as you look back on 2018 and forward to 2019:
Year-End Bonuses: Employers distributing holiday bonuses, holiday gift cards, year-end merit bonuses, and other types of compensation to nonexempt employees should consider whether the compensation must be included in a nonexempt employee’s “regular rate” of pay when calculating overtime. The Code of Federal Regulations carves out some specific types of pay that need not be included in an employee’s regular rate of pay. For example, Section 778.211 excludes purely discretionary bonuses and section 778.212 excludes gifts for Christmas and other special occasions. So, an employer giving employees gift cards for the holidays or other special occasions is not required to incorporate the value of those gift cards into an employee’s regular rate of pay as long as the amounts “are not measured by or dependent on hours worked, production, or efficiency.” See 29 C.F.R. § 778.212(a); 29 U.S.C.A. § 207.
With a new Republican majority in the NLRB, the rules may be changing (again) when it comes to company emails. The NLRB is in the process of re-analyzing when and how employers can restrict employees’ company email use without running afoul of NLRA Section 7, and may begin upholding employer policies with facially neutral restrictions on company email and computer usage again in the near future.
A bit of background: Section 7 of the NLRA protects an employee’s right to engage in “concerted activities,” which occurs “when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” The NLRA’s protection of “concerted activities” is a broader concept than “union activities” and covers many different activities, including employee discussions about pay, work conditions, and safety concerns. The NLRB has construed the terms “concerted” and “protected” very broadly and vaguely, to include any activity aimed at affecting employee interests.
As has been widely reported, last month the California Supreme Court issued a decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles that rejected the long-standing, multi-factor test to determine whether a worker is an employee. The Dynamex decision established a three-factor “ABC” test that, on its face, places the entire burden of showing that a worker is not an employee squarely upon the hiring party. The ABC test asks whether:
- The worker is free from the direction and control of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
- The worker performs work that is outside the usual course of the hiring entity’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
On April 30, 2018, the California Supreme Court issued its long-awaited decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The Court announced a significant departure from the S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) test, previously used by California courts and state agencies for nearly three decades for determining whether a worker is an independent contractor under the Industrial Welfare Commission (“IWC”) wage orders. In its place, the Court adopted the so-called “ABC” test for determining whether an individual is considered an employee under the wage orders, which govern many aspects of wages and working conditions in covered industries. READ MORE
Just the other week, in Jones v. Royal Admin. Servs., the Ninth Circuit reaffirmed the federal common law standard for distinguishing agents from independent contractors and upheld the independent contractor status of telemarketers providing direct sales services for a company, Royal Administration Services, Inc. (“Royal”).
At issue were telemarketers employed by All American Auto Protection, Inc. (“AAAP”), one of about twenty marketing vendors used by Royal to sell vehicle service contracts. Several recipients of these telemarketing calls filed suit, first against AAAP and then against Royal, alleging violations of the Telephone Consumer Protection Act (“TCPA”). The telemarketing call recipients alleged that Royal was vicariously liable because the AAAP telemarketers were Royal’s agents. Royal filed for summary judgment, asserting that the AAAP telemarketers were not its agents, but rather independent contractors. The district court granted summary judgment for Royal. READ MORE