As states begin to reopen and employees return to the workplace, employers are faced with trying to protect workers and prevent the spread of COVID-19 in the workplace. Many employers are looking to temperature testing as a potential safeguard. Like many emerging safety measures, though, there are several considerations to weigh before implementing temperature testing: READ MORE
Julia is an employment law authority and trial lawyer. She helps companies navigate and resolve challenging workplace issues and has extensive experience in:
- Helping companies navigate the new COVID-19 laws and guidance and return their employees to the workplace. Check out her webinars and Orrick's COVID-19 resources at https://covid19.orrick.com/.
- 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 the ABC test and California's Prop 22.
- 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's clients include Lyft, SpaceX, PayPal, Instacart, GitHub, Splunk, TaskRabbit, Beyond Meat, 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, 2019 and 2020 by Law360 and The Recorder has named Orrick the "Litigation Department of the Year: Labor and Employment" in California four times.
Side note: Julia also loves animal rescue and drinks lots of coffee.
Posts by: Julia Riechert
On April 17, 2020, the Department of Labor’s Deputy Assistant Secretary Joe Wheeler responded by letter to Senator Ron Wyden and other Democratic lawmakers who had raised concerns about the Coronavirus Aid, Relief, and Economic Security Act’s (CARES Act) Pandemic Unemployment Assistance (PUA) program. Notably, the letter clarifies several eligibility criteria, including that self-employed gig economy workers and workers who cannot work because they have coronavirus symptoms and are seeking a diagnosis may receive federal unemployment assistance under the PUA program. READ MORE
In the wake of coronavirus and the Families First Coronavirus Response Act, California cities are taking their own measures. San Francisco launched the Workers and Families First Program to reimburse employers for providing extra sick leave beyond their existing policies. The City Council of Los Angeles approved a supplemental paid sick leave ordinance, which the mayor is expected to sign. And Emeryville issued guidance on the permissible coronavirus-related uses for sick leave under its local paid sick leave ordinance. READ MORE
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
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.