Labor & Employment Law Blog

As has been widely reported, companies throughout the country are facing pandemic-related labor shortages, including because of workers’ childcare obligations, concerns about returning to in-person work, and the continuation of unemployment benefits.  Employers attempting to address this labor shortage are offering hiring bonuses, increasing wages, and improving benefits and flexibility.  It also appears they are hiring teenagers to fill these vacancies, which coincides with the general uptick in youth employment between April and July each year.  According to the U.S. Bureau of Labor Statistics (“BLS”), the unemployment rate among teenagers this month stands at 12.3% and is anticipated to fall further, providing a stark contrast to teen unemployment last summer.  (In July 2020, the unemployment rate for 16 to 24 year olds was 18.5%, about twice as high as the year before, according to the BLS.)

One of the many downsides to the current pandemic is that so many people have exhausted their family leave taking care of themselves as well as sick family members.  The non-COVID-19-related issues of families have not gone away, however.  Who is taking parents to chemo treatments?  Who is taking spouses to physical therapy?  How do employees and employers deal with these issues?  If family leave is no longer an option, employees may turn to associational discrimination and reasonable accommodation of associational discrimination if they are denied time off to take care of family members.

On May 3, 2021, the California Department of Public Health issued guidance that fully vaccinated people do not need to quarantine if they are asymptomatic. COVID-19 Public Health Recommendations for Fully Vaccinated People.  On May 7, 2021, Cal/OSHA followed this lead and updated its COVID-19 Emergency Temporary Standards FAQs to reflect the change as follows:

On April 7, 2021, the Department of Labor (DOL) published new model COBRA notice forms as a result of the recent COBRA subsidy program created by the American Rescue Plan Act (ARPA).

On March 29, 2021, the California Supreme Court issued a landmark ruling involving the State’s prevailing wage law, holding for the first time that the law’s requirements could be applied to employees who performed work for a private employer under a contract with a sanitation district.  (Kaanaana v. B. Bus. Servs., Inc., No. S253458, 2021 WL 1166963 (Cal. Mar. 29, 2021))  Prior to this decision, the law had generally been interpreted to apply only to construction work pursuant to a contract entered into with a public entity.

On March 19, 2020, Governor Newsom signed Senate Bill 95 (“SB 95”), which requires employers with 26 or more employees to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to eligible employees.  SB 95 takes effect March 29, 2021, and will expire on September 30, 2021.

On March 11, 2021, the U.S. Department of Labor announced plans to rescind two final rules which were promulgated under the prior administration: (1) the Independent Contractor Rule, which sets forth the standard under which a worker may be considered an independent contractor or employee under the Fair Labor Standards Act (FLSA); and (2) the Joint Employer Rule, which provides guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity.

On January 6, 2021, the Department of Labor (“DOL”) announced the new final rule for worker classifications called the “economic reality” test. The new DOL final rule provided that two core factors were to be examined to determine whether a worker is properly classified as an independent contractor under federal law: (1) the nature and degree of control over the work; and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. As previously discussed here, these requirements are much less stringent than the “ABC” test adopted by California, which requires that the worker perform work outside the usual course of the hiring entity’s business and that the worker is customarily engaged in an independently established business of the same nature.

On January 15, 2021, in the case of Scalia v. Department of Transportation and Public Facilities, 985 F.3d 742 (2021), the Ninth Circuit Court of Appeal decided that for an employee, who works a rotational schedule of seven days on, followed by seven days off, both his “on” and “off” weeks shall be used to calculate the length of “12 workweeks of leave” under the Family and Medical Leave Act of 1993 (FMLA).  As such, when a rotational employee takes continuous leave, both his on and off weeks count toward his “workweeks of leave” under Section 2612(a)(1) of the FMLA.

On February 8, 2021, the United States Ninth Circuit Court of Appeals issued a decision clarifying the circumstances under which a per diem benefit must be included in the regular rate of pay for overtime purposes under the Fair Labor Standards Act (FLSA).  The court held that since per diem benefits functioned as compensation for work rather than as reimbursement for expenses incurred by traveling healthcare clinicians, they were improperly excluded from the clinicians’ regular rates of pay for purposes of calculating overtime pay under federal law. Clarke v. AMN Servs., LLC (9th Cir., 2021) No. 19-55784, 2021 WL 419473.