Honored to be named in Best Lawyers again!

Honored to be named in Best Lawyers in America.

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Ninth Circuit holds Amazon drivers are not required to arbitrate

Following on the Third Circuit‘s ruling that gig-economy drivers, like those for Uber and Lyft, are not required to arbitrate, the Ninth Circuit held that so-called final mile drivers for Amazon, who deliver products from Amazon warehouses to their final destination also fall into the interstate transportation exception and therefore are not required to arbitrate. Although such drivers may, themselves, drive only intrastate, they are, in doing so, the Ninth Circuit held, merely completing the final leg of interstate transportation, at least where the goods do not “come to rest” in the in-state warehouse where such drivers pick them up for final delivery.

Source: Rittman v. Amazon, Inc., — F.3d — (9th Cir. 8/19/2020).

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CDLE issues revised INFO #6A

The CDLE has issued a revised INFO #6A, which is its summary explaining the aspects of Colorado’s new sick leave law taking effect 1/1/2021. The CDLE summarized its changes to INFO #6A, as follows:

(1) Pg. 1: In the list of 3 situations that qualify for leave, a non-substantive wording change to category #3 (leave to care for another person) aims to make clearer that it applies when the person being cared for meets the category #2 definition (being ordered/instructed to quarantine/isolate, due to a risk of COVID-19, by a government agent or health provider).

(2) Pg. 1, footnote 3: As to what is and is not a “bonus” excluded from the regular pay rate that applies to paid leave in 2020, footnote 3 has been added to cite, and explain the answer in, the federal rule that applies to 2020 leave.

(3) Pg. 2: An “Example” of the CBA exemption was deleted because stakeholders have expressed differing views of the exemption that warrant consideration before the Division decides whether to adopt any interpretation.

(4) Pg. 3: An elaboration to the paragraph on how “Policies by any name can comply” cites and explains the federal rule that applies to 2020 leave, which draws a key distinction between employer policies that existed prior to April 1, 2020, and those adopted after that date.

(5) Pg. 2-3: Non-substantive citation edits — without changing any wording, numerical citations were added to the federal rules on what documentation (29 C.F.R. 826.100) and notice (29 C.F.R. 826.90) employees can be asked to provide, and numbers were corrected in two HFWA citations (to the 8-13.3-416 provision against waiver of rights, and the 8-13.3-418 provision recognizing employer rights against employee misconduct).

Of these, item 2 may be of particular interest, in that the CDLE revised INFO 6A to provide that, while on paid leave, sick leave must include payment of any “non-discretionary pay based on pre-determined criteria or formulae (e.g., by production or accuracy), whether called a piece rate, bonus, incentive, or other name.” In other words, in contrast what had seemed clear language in the new statute and in conflict with its prior INFO #6A, the CDLE has — without undertaking rulemaking — decided to re-interpret these new laws as excluding from required sick leave only “discretionary” bonuses.

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“Paid Sick Leave Gaps Draw States’ Attention as Virus Persists”

State and local governments in at least 12 states (Washington, Oregon, California, Nevada, Arizona, Colorado, Michigan, Pennsylvania, New York, New Jersey, District of Columbia, Massachusetts) have or are in the process of enacting new emergency sick leave laws, which either supplement coverage of existing federal coronavirus-related leave rights and/or implements all new general sickleave requirements, according to an interesting article by Bloomberg BNA, available here: ”Paid Sick Leave Gaps Draw States’ Attention as Virus Persists.”

Colorado employers are reminded of Colorado’s new sick leave law, which does both (as well as imposes additional obligations on employers here).

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New York judge strikes three portions of DOL regulations re FFCRA leave

A New York federal trial court has struck three portions of the DOL regulations implementing the FFCRA’s emergency paid sick leave. The State of New York challenged and the trial court struck these three portions of the DOL regulations:

  1. A requirement that emergency paid sick leave is available only if the employer has work available;
  2. An exclusion for employees working for a health care provider (note: this portion of the order is particularly unclear as it may have only struck the DOL’s definition of a “health care provider” without providing an explanation of how that phrase should be interpreted);
  3. A requirement that intermittent emergency paid sick leave be made available only with the employer’s consent (again this portion of the order is also unclear, in that the court clearly struck the requirement for employer consent, but apparently did not require intermittent leave be provided if the employer does not have work to provide).

The ruling is far from clear. Its impact is even less clear. It is not clear if the ruling has any impact outside of New York. New York did not request and the judge did not issue a nationwide injunction; therefore, technically the ruling has no impact outside New York. Nor is it clear if the DOL will challenge the ruling, including by appeal. It is not clear if judges outside New York (or appellate judges if this ruling is appealed) will find the trial court’s order persuasive.

Employers are reminded that a growing number of state and local jurisdictions are adopting their own requirements along these lines. Colorado employers in particular are reminded they must comply not only with the federal FFCRA’s requirements along these lines but also the new state law requirements.

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CDC shifts to symptoms-based not test-based recommendations for employers

The CDC has shifted from a test-based approach to now recommending employers follow a symptoms-based approach for its workers.

As a general rule, the CDC cautions employers not to require employees to take coronavirus tests and should not require employees to provide a doctor’s note to validate the need for sick leave or the ability to return to work.

Employers should not require a COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work.

– Under the American’s with Disabilities Act, employers are permitted to require a doctor’s note from your employees to verify that they are healthy and able to return to work. However, as a practical matter, be aware that healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner. Most people with COVID-19 have mild illness and can recover at home without medical care and can follow CDC recommendations to determine when to discontinue home isolation and return to work.

– The U.S. Equal Employment Opportunity Commission (EEOC) has established guidance regarding Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. The guidance enables employers to take steps to protect workers consistent with CDC guidance, including requiring workers to stay home when necessary to address the direct threat of spreading COVID-19 to others.

Now, the CDC is now recommending a symptoms-based approach for determining when employees should self-isolate from the workplace. Specifically the CDC now recommends:

  • Following their first positive test, with no symptoms, isolation for 10 days
  • Following their first positive test with mild to moderate symptoms, isolation for the longer of 10 days or 24 hours after last fever or other symptom
  • Following their first positive test with severe symptoms, isolation for 20 days, or longer depending on healthcare provider input
  • Following an exposure with either no testing or a negative test, and with no symptoms, isolation for 14 days

The CDC recommends testing only in rare situations, and then two tests at least 24 hours apart.

The CDC cautions that test results may not be as reliable as one might hope. It now believes that a negative test result may be false, and a person may continue to test positive long after no longer being contagious. Therefore, the CDC currently believes that an employee who is able to return to work according to the foregoing criteria does not restart their isolation clock, as it were, simply because they test positive again later — again assuming they otherwise meet the foregoing criteria, including having had no symptoms, etc., for the required period from their first test.

The CDC has issued less restrictive requirements available for workers engaged in an essential industry, permitting such workers an exemption to return to work after exposure if they have no symptoms, wear a face covering, monitor symptoms and socially distance. The CDC has also issued different criteria for healthcare workers. Likewise, the CDC’s new guidelines acknowledge that different criteria may be imposed by a healthcare provider, and different guidelines may be appropriate for individuals with preexisting conditions.

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Bill Berger, Labor Lawyer on PAC-12 Players’ Boycott | KOA NewsRadio 850 AM & 94.1 FM | Logan & Lewis

Great time this morning on KOA NewsRadio with Dave Logan, Rick Lewis and Kathy Lee talking about the legal issues re #pac12 #pac12fb and the players demands for social justice and coronavirus reforms.

Source: Bill Berger, Labor Lawyer on PAC-12 Players’ Boycott | KOA NewsRadio 850 AM & 94.1 FM | Logan & Lewis
— Read on koanewsradio.iheart.com/featured/logan-lewis/content/2020-08-04-bill-berger-labor-lawyer-on-pac-12-players-boycott/

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