California Employment Law Update

COVID Alert: California Releases “Employer Playbook for a Safe Reopening”

California Governor Gavin Newsom has released a 32-page “Employer Playbook” that’s designed to help employers “plan and prepare for reopening their business and to support a safe, clean environment for workers and customers.”

The Playbook contains general guidance applicable to all industries, such as how to manage an outbreak, record cases, and enforce mask requirements. The Playbook also contains hyperlinks to relevant government contacts and industry-specific guidance.

In addition, the Playbook mandates that before reopening, all facilities must:

  1. Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan;
  2. Train workers on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home;
  3. Set up individual control measures and screenings;
  4. Put disinfection protocols in place;
  5. Establish physical distancing guidelines; and
  6. Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH guidelines.

Employers should review this Playbook and use it as a reference tool going forward. However, because guidance on reopening is constantly changing, employers should keep abreast of any new developments from local, city, or state authorities.  (We’ll provide regular updates here as well.)

Even a Worldwide Pandemic Is No Excuse For Blowing A Class Certification Deadline!

For years, federal courts in California have been inundated with wage and hour class actions.  Because these cases often clogged district court dockets for months (and, sometimes, even years) on end, the Central District of California issued the former Local Rule 23-3, which set a 90-day deadline to file a motion for class certification from the filing of a complaint in or removal of an action to federal court.  In 2018, the Ninth Circuit invalidated the 90-day deadline, but judges continue to manage their dockets by imposing shorter than average deadlines to keep cases moving.  And, as a recent Central District Judge’s order demonstrates, these deadlines are firm, even during the COVID-19 pandemic.

On July 22, 2020, Judge John F. Walter issued an order granting Denny’s Inc.’s motion to strike plaintiffs Myra Deleon and Karla Jiminez’s (“Plaintiffs’”) class allegations.  Plaintiffs had filed their putative wage and hour class action in California Superior Court on October 28, 2019, and Denny’s removed it to federal court on February 3, 2020.  Approximately a month later, the District Court issued a Scheduling Order requiring Plaintiffs to file their motion for class certification 120 days after removal—i.e., by June 2, 2020.  When Plaintiffs failed to meet that deadline, Denny’s filed a motion to strike their class allegations.

In arguing that their failure to meet the deadline constituted “excusable neglect,” Plaintiffs’ counsel invoked what amounted to a the “dog ate my homework” argument, with a COVID-19 angle:  They claimed that the staff member responsible for calendaring deadlines had been on a leave of absence and, due to COVID-19 shelter-in-place orders, their office staff did not discover the issue because all support staff had been furloughed.  However, Denny’s presented evidence that the employee’s leave actually began eight days after the Court’s Scheduling Order, which was issued more than two weeks before the shelter-in-place orders that purportedly triggered staff furloughs.  The Court also noted that Plaintiffs’ counsel were ultimately responsible for managing their deadlines—and could not get away with simply delegating their obligations to furloughed (non-attorney) staff.  The Court also based its decision on the facts that Plaintiffs’ counsel failed to propound “even the most basic discovery requests” and had served untimely responses to Denny’s discovery—presumably based on the mistaken belief that COVID-19 could be used as an excuse.  The Court similarly rejected any argument that a lack of familiarity with the Local Rules constituted a valid reason for missing the deadline.

Ultimately, Judge Walter’s order is a reminder of the importance of diligent lawyering, including proper calendaring of deadlines even in the time of a pandemic!  And, it is a clear indication that, in the absence of truly extenuating circumstances, even COVID-19 is not a “get out of jail free” card.

California Court of Appeal Confirms that PAGA Claims Cannot be Compelled to Arbitration

Even after the Supreme Court’s favorable decision in Epic Systems Corp. v. Lewis (“Epic”), California courts will not compel a PAGA claim to arbitration.

In Collie v. The Icee Co., a former employee of The Icee Company, Tauran Collie, alleged a single cause of action under California’s Private Attorney General Act (“PAGA”) against her former employer. The Icee Company attempted to compel Collie’s claim to arbitration based on a broadly worded pre-dispute arbitration agreement that Collie signed when he began his employment.

The Icee Company argued that two decisions which held that PAGA claims could not be compelled to arbitration, Betancourt and Iskanian, were no longer good law after the United States Supreme Court’s decision in Epic, which held that class action waivers in arbitration agreements must be enforced and individual arbitration must be compelled if the agreement contains such a provision.

The Court of Appeal was not persuaded that Epic should change the court’s analysis of PAGA claims. It held that “Epic does not address ‘the unique nature of a PAGA claim’—that is, the ‘PAGA litigant’s status as ‘the proxy or agent’ of the state’ and his or her ‘substantive role in enforcing our labor laws on behalf of state law enforcement agencies.’”  Thus, Epic does not undermine Iskanian’s or Betancourt’s characterization of PAGA claims as law enforcement actions in which plaintiffs step into the shoes of the state.” And because Collie had yet to step into those shoes, he could not have agreed to arbitrate on behalf of the state when he signed the arbitration agreement. The Court simply held that because the state did not agree to arbitrate its PAGA claim, “Icee cannot enforce a contractual provision to bind a nonparty [the state].”

PAGA’s unique nature has, at least for the time being, immunized PAGA claims for arbitration, and it appears that will be the case for the foreseeable future, much to the chagrin of California employers.

Safety Concerns Regarding COVID-19 Infection Could Lead to More Plaintiff-Friendly Juries

Employers may face juries that seek to hold them responsible if an employee contracts COVID-19, the trial consulting firm Dispute Dynamics suggests in its latest study.

Dispute Dynamics surveyed 321 individuals, inquiring about their most up-to-date attitudes in the context of being called as a potential juror during/following the pandemic.

46% of the participants indicated that an employer should be held responsible if an employee contracts coronavirus in the workplace, while 26% of participants disagreed. Further, 41% of participants agreed that an important function of juries is to “send a message” to corporations to improve their behavior, while only 17% disagreed.

The study indicates that juries place a premium on employee safety – and a considerable amount of the jury pool places that responsibility squarely on employers’ shoulders.

A gentle reminder that in the face of this ongoing situation, employers might want to consider an alternative: Arbitration.

Read the full study here.

Please join us for a complimentary Webinar on Employment-Related Claims in the Wake of COVID-19

As businesses reopen and employers continue to adjust to the new reality created by the COVID-19 pandemic, it is critical to anticipate the types of employment-related claims that may arise.

On Tuesday, June 23, 2020, at 10:00 AM PDT, please join Proskauer’s Labor and Employment Department for a complimentary webinar as we provide an overview of current employment litigation trends that have emerged as a result of the pandemic, an outlook of the types of claims businesses should expect as they reinvent the workplace in the wake of COVID-19, and the proactive steps employers should take to reduce the risk of such claims.

Topics to be covered include: (1) OSHA and Other Workplace Safety Claims; (2) Negligence and Other Tort Claims; (3) Workers’ Compensation Claims and Exclusivity; and (4) Leave and Accommodation Claims.

Register for the webinar here.

Podcast: LGBT Workers Win Blockbuster Supreme Court Ruling

On Monday, the Supreme Court issued a landmark 6-3 ruling that held that an employer that fires someone for being gay or transgender violates Title VII of the Civil Rights Act.

Anthony Oncidi joins XpertHR Legal Editor David Weisenfeld to discuss the ruling’s significance, what it means for employers and what the next big workplace issue will be at the nation’s highest court.

Listen to the podcast or read the transcript here.

Mask On, Roll Camera: LA County Greenlights Hollywood Production Restart

As we previously reported, last week, Gov. Gavin Newsom and California’s State Public Health Officer cleared the music, film and television industry to resume work no earlier than this Friday, June 12, 2020, subject to county-by-county approval.  On June 10, 2020, Los Angeles County Director of Public Health, Dr. Barbara Ferrer, announced that she was in agreement and authorized the resumption of film and television production in Los Angeles County, effective June 12, 2020.

Late yesterday, Dr. Ferrer issued an updated Health Officer Order that officially permits music, film and television production to resume in the nation’s largest entertainment production location.  The Los Angeles County Department of Public Health also issued industry-specific reopening protocols for the music, film and television production industries.  Among other things, the protocols:

  • Mandate designation of one or more COVID-19 compliance officers;
  • Require that all employees and visitors wear face coverings whenever they are in contact with others, unless the production activity does not allow it;
  • Require, for television and film production, regular, periodic testing of cast and crew, especially for those cast and crew that are involved in “high risk scenes requiring close contact without face coverings for extended periods;”
  • Require, for one-time productions operating on shorter schedules and smaller music recording sessions, all work be planned to eliminate close physical contact as much as possible;
  • Mandate remote or in-person (upon arrival) symptom checks before any employee enters the workplace, in addition to temperature checks at the worksite, if feasible;
  • Prohibit open calls, and encourage casting to be performed remotely or, if in-person, with appointments to limit crowds;
  • Require that any work requiring cast or crew to be closer than six feet to be as brief as possible and, during such periods, require that cast members “be as silent as possible to avoid spreading droplets through talking;”
  • Discourage scenes involving direct, prolonged contact between cast members (e.g., intimate scenes, fight scenes, etc.) or large crowds; and
  • Prohibit buffet-style craft services and any communal food or drinks.

In addition to the new County protocols, pursuant to the State Health Officer’s reopening authorization, music, film and television employers also must adhere to protocols agreed to by labor and management, which may encompass the recommendations set forth in the June 1, 2020 industry-wide labor management task force white paper.  However, per the task force’s white paper, more specific protocols, including department-specific procedures, may need to be agreed upon between management and labor.  We will continue to monitor this developing situation.