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
Necia Hobbes is a member of the firm’s employment law group at Orrick’s Global Operations & Innovation Center in Wheeling, West Virginia. She has a broad range of experience litigating in federal, state and administrative courts.
Necia’s employment law practice focuses on federal court discrimination litigation, as well as complex litigation and class actions, including pay equity claims, wage and hour disputes, and OFCCP administrative claims. She handles cases from inception through to appellate briefing and strategy, and assists companies with a variety of compliance-related challenges including internal investigations, pay equity analyses, and government investigations and audits.
Prior to joining Orrick, Necia handled all aspects of general litigation cases at another global law firm including acting as lead counsel in approximately 50 cases in federal, state and administrative courts.
Additionally, Ms. Hobbes served as a judicial law clerk for the Honorable D. Michael Fisher of the United States Court of Appeals for the Third Circuit and obtained a graduate degree from Carnegie Mellon University’s H. John Heinz III School of Public Policy & Management. She previously consulted with the Office of High School Reform for the Pittsburgh Public Schools, served as a Coro Fellow in Public Affairs with the Coro Center for Civil Leadership in Pittsburgh, PA, and worked as a project manager and writer at a market research firm.Ms. Hobbes is dedicated to pro bono and community service, and has volunteered advising non-profit organizations through employment law challenges related to COVID-19, developing resources on international anti-trafficking laws, and litigating immigration cases assisting refugee children fleeing violence in Central America, civil cases helping prisoners pursue their constitutional rights, and state court petitions for transgender legal name changes. She has volunteered in the past with women’s rights and immigration advocacy organizations, and teaching English in Kathmandu, Nepal.
Posts by: Necia Hobbes
OFCCP Loosens Requirements for Employers Engaged in COVID-19 Response Efforts
OFCCP announced Wednesday that it will grant a limited, three-month exemption and waiver from some of its regular requirements for federal contractors responding to COVID-19. The exemption and waiver applies to new construction or supply and service contracts that are entered into from March 17, 2020 through June 17, 2020 specifically for the purpose of providing coronavirus relief. Director Craig Leen authorized such contracts to be exempted from: READ MORE
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
The Saga Continues: EEO-1 Pay Data Collection Extended Again
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
Workplace Violence Prevention In An Active-Shooter Era
Earlier this month, the country was again rocked by mass shootings—two in less than 24 hours left the cities of Dayton, Ohio and El Paso, Texas reeling. Like so many tragedies before, both shootings occurred at a location that was also a workplace. Although neither was perpetrated by an employee (unlike yet another shooting earlier this summer), employees were affected. They had to think quickly and act fast in the moment, and to deal with the psychological and emotional toll afterwards.
The Department of Labor estimates that approximately two million people will be victims of workplace violence this year. With an employed population of approximately 157 million, this means that about 1 in 80 employees will experience workplace violence—and more will likely be aware of or witness it.
In these circumstances, employers should consider developing or updating their workplace violence prevention (1) strategies, (2) policies, and (3) practices. READ MORE
Fifth Circuit Takes a Bite Out of EEOC’s Criminal Background Guidance
In the first-of-its-kind ruling last week, the Fifth Circuit held that the EEOC’s investigators and lawyers cannot rely on its “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” to bring enforcement actions. Finding that the guidance amounted to a substantive rule, the Fifth Circuit panel determined that the guidance overstepped EEOC’s authority to force the State of Texas to consider hiring convicted felons to state-wide positions. The decision on its face confirms the general principle that EEOC does not have the authority to engage in rulemaking on substantive discrimination laws and was limited to a specific injunction. However, the decision could have far-reaching consequences for the EEOC’s various substantive guidelines. READ MORE
Not Your Call: California Employers May Pursue Damages for Employees’ Illegal Recordings
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
Say It Again: No Common Question Binds a Class Subject to Thousands of Individualized Pay Decisions
Echoing an increasingly familiar refrain, another district court has declined to certify a class of women bringing pay equity claims on the basis that they did not present a common question capable of producing a common answer to “the crucial question why was I disfavored.” Relying largely upon Wal-Mart Stores, Inc. v. Dukes, the court found certification inappropriate because the putative class members were subject to countless independent decisions involving the judgment and discretion of individual managers. The case also serves as another reminder that courts (including California state courts) will not accept an overly simplistic analysis comparing broad job categories or titles, but will continue to look at actual business practices and job responsibilities to ensure comparators are “similarly situated” so a meaningful pay comparison can be made. READ MORE
Listen Up: The DOL Begins Public Listening Sessions on Its Overtime Rule
This week, the United States Department Labor (“DOL”) is conducting its first listening session on the white collar exemptions under the Fair Labor Standards Act (“FLSA”)—more commonly known as the “overtime rule.” Several additional listening sessions will take place later this month. The sessions are expected to focus on public opinion regarding changing the current minimum salary level for exempt employees from its current level of $455 per week ($23,660 annually). There is no fee to attend a session, but registration is required here.
These sessions are just the latest in the ongoing saga over revisions to the overtime rule that began two years ago in September 2016, when twenty-two states and dozens of business groups challenged the Obama administration’s overtime regulation revisions that were finalized earlier that year. The new rule was set to implement several changes, most notably raising the minimum salary level for exempt employees to $913 per week ($47,476 annually), effective December 1, 2016. Before the new rule could take effect, the Texas federal judge hearing the case issued a nationwide injunction preventing the DOL from implementing and enforcing it, based partially on a holding that the new rule exceeded Congress’s delegation of authority to the DOL. The Obama administration appealed, and after requesting additional time to respond, the Trump administration decided to uphold the position that the DOL had the authority to revise the applicable salary level. However, in July 2017, the DOL also issued a Request for Information (“RFI”) on the overtime rule, asking for the public to submit comments by the end of September. The following month, the district court judge granted the states’ and business groups’ motions for summary judgment, invalidating the regulation. The DOL decided to dismiss its appeal and instead to pursue its own regulatory rulemaking process.
The RFI asked broad ranging questions related not only to the salary level, but to other exemption-related requirements, such as the duties test. It elicited over 140,000 public comments, including from major representative and advocacy organizations such as the United States Chamber of Commerce and Independent Sector (representing the nonprofit sector). The Chamber opposed only an “excessive increase,” suggesting that based on data from the Bureau of Labor Statistics, a more modest increase to a minimum salary of $612 per week ($31,824 annualized) was more appropriate. The Chamber also expressed its opposition to any change to the duties test. The Independent Sector highlighted the heavy financial burden the proposed increase would bring to the already-financially-strained nonprofit/charitable organizations nationwide. It suggested that any change be phased in to permit organizations time to adapt, and also expressed concern that any potential change to the duties test would “significantly impact the operations of charitable organizations,” asking that any change be considered through a formal rulemaking process allowing the public time to comment and review.
Last week’s announcement on the listening sessions offered our first glimpse into the DOL’s rulemaking process since the RFI period closed last year. Notably, the agenda questions focus exclusively on the salary test—a much narrower set of questions than those posed in the RFI. Listening Session participants are asked to focus on the four following issues: (1) “the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply”; (2) “[w]hat benefits and costs to employees and employers might accompany an increased salary level”; (3) “the best methodology to determine an updated salary level”; and (4) whether the DOL should “more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees.” Noticeably absent is any indication that DOL is considering automatic inflationary updating to the salary level test. This reverts back to the position in the Bush DOL that the Department did not have statutory authority to implement automatic updating. In any event, this suggests that the DOL is shying away from changes to the duties test or other more expansive revisions as the formal rulemaking process rarely expands beyond the scope of the informal information gathering. The answer will have to wait until the Notice of Proposed Rulemaking is released, which is expected in January, at the earliest.
Epic News for Employers: Class Action Waivers in Arbitration Agreements are Enforceable
Employers across the country started the work week with some positive and long-awaited news. On Monday, May 21, 2018, the U.S. Supreme Court ruled in a landmark case that employment arbitration agreements with class action waivers do not violate federal labor law. The Court’s 5-4 decision in Epic Systems Corp. v. Lewis, No. 160285 (U.S. May 21, 2018), consolidated with Ernst & Young LLP et al v. Morris et al., No. 16-300, and National Labor Relations Board v. Murphy Oil USA, Inc., et al. , No. 16-307, was authored by Justice Gorsuch, and settles the longstanding dispute over whether arbitration agreements containing class waivers are enforceable under the Federal Arbitration Act (FAA) despite the provisions of Section 7 of the National Labor Relations Act (NLRA). READ MORE