• Posts by Kimberly N. Brooks
    Associate

    Kimberly N. Brooks is an Associate in the Employment Law Department.

    Kimberly’s practice focuses on labor and employment law.  She represents employers of all types, including national insurance companies, large medical ...

Supreme Court Decides LGBTQ Are Protected From Workplace Discrimination

In a landmark 6-3 ruling, the Supreme Court of the United States held that workplace discrimination on the basis of an employee’s LGBTQ status is in violation of Title VII of the Civil Rights Act of 1964.  The Court’s opinion can be found here.

Until now, workers in more than half the states lacked legal protection from employment discrimination based on their LGBTQ status.  The Court’s decision rests on a strict reading of Title VII’s prohibition of discrimination on the basis of “sex”.  It concludes that extending that “sex” prohibition to include discrimination on the ...

DOL Extends COBRA Deadlines In Response to COVID-19 National Emergency

On May 4, the U.S. Department of Labor (DOL) and Internal Revenue Service (IRS) jointly issued a new final rule that temporarily extends time frames in which eligible employees can elect COBRA health insurance coverage and begin making COBRA premium payments. The final rule extends COBRA deadlines to 60 days after the end of the declared COVID-19 national emergency, or a different date if the DOL and IRS provide a different date in future guidance.

To help participants and beneficiaries understand the new rule, the DOL also posted a new set of FAQs.     

This blog is presented under protest by ...

California Extends Workers’ Compensation to COVID-19

Earlier today, Gov. Gavin Newsom signed an executive order extending workers’ compensation insurance coverage to essential workers who test positive for coronavirus or are diagnosed with COVID-19 by a physician. The order establishes a rebuttable presumption that any essential worker contracted the virus on the job and is, therefore, eligible for workers’ compensation benefits. This presumption effectively places the burden of proof on companies or insurers to prove that the essential worker did not get sick at work in order to permissibly deny coverage. The order applies ...

Taking Employees’ Temperatures During the COVID-19 Pandemic

Employers can take employees’ temperatures to respond to and manage the COVID-19 pandemic. The Equal Employment Opportunity Commission has stated in its updated guidance that the COVID-19 crisis permits employers to measure employees’ body temperatures before allowing them to enter the worksite. Indeed, the Centers for Disease Control recommends in its community mitigation framework that workplaces in areas with “minimal to moderate risk” implement regular temperature and respiratory checks. 

How to Conduct Temperature Checks

As for the precise temperature to ...

Coronavirus And The Reluctant Employee

You have a business that is permitted to continue operations and is not subject to a “stay at home” order.  You have informed employees of this fact.  You have even provided employees with a letter setting forth specific information on why they are allowed to continue working and traveling to and from work to show authorities or anyone else who might ask.  Nevertheless, you have one or more employees who do not want to work because of COVID-19 and are asking to stay home.  What do you do?

If you are a business with 500 or fewer employees, you first need to find out why these employees are asking to ...

What Small Businesses Need To Know About The Families First Coronavirus Response Act

If your business has fewer than 50 employees, you may qualify for the small business exemption to a portion of the Families First Coronavirus Response Act (FFCRA).  Specifically, small businesses with fewer than 50 employees may be exempt from the requirement to provide leave due to school closings or childcare unavailability if those FFCRA leave requirements would jeopardize the viability of the business as a going concern.  In other words, the small business exemption only excuses the employer from providing paid leave for reason no. 5 on the official FFCRA Notice, which all ...

Employers Must Use This Notice for the Families First Coronavirus Response Act

The Department of Labor released the required notice for the Families First Coronavirus Response Act today.  All employers covered by the FFCRA must post the notice in a conspicuous place to advise all current employees of their rights under the Act.  The FFCRA, which was passed by Congress and signed by President Trump last week, expands employee leave laws in response to the COVID-19 crisis.  (For more information on the FFCRA, see earlier “What Employers Need To Know About The Families-First Coronavirus Response Act” article on this blog.) 

Since many workforces are currently ...

What Employers Need To Know About The Families First Coronavirus Response Act

The coronavirus pandemic has presented challenges for employers trying to remain responsive to the crisis but also struggling to absorb the burden it has imposed on their businesses. With much anxiety, employers have also been anticipating a new law, H.R. 6201, to go into effect that would expand family and medical leave requirements to cover COVID-19. As of yesterday, Congress passed and President Trump signed the final version of H.R. 6201, titled the Families First Coronavirus Response Act.

The Act will take effect on April 1, 2020 and will remain effective until December 31 ...

Breaking News: Federal Court Grants Preliminary Injunction To Block AB 51 Employment Arbitration Law

U.S. District Court Judge Kimberly Mueller just granted a preliminary injunction to block Assembly Bill 51 throughout future court proceedings, which will examine the enforceability of the new law.  This is welcome news for California employers because it means that the status quo remains in effect: Employers can continue to require arbitration agreements as a condition of employment for their employees unless and until the court rules otherwise.   

To recap the brief but controversial history of this new law, AB 51 was originally supposed to become effective on January 1, 2020 but ...

Update: AB 51 Employment Arbitration Law Remains On Hold

Assembly Bill 51, the controversial law that would have prevented employers from requiring employees to enter arbitration agreements, has been put on hold until at least January 31, 2020.  As reported in this blog last week, the law was supposed to go into effect on January 1st, but before that could happen U.S. District Judge Kimberly Mueller issued a temporary restraining order (TRO) pending a hearing on a motion brought by a coalition of businesses that sought to prevent the bill from taking effect.

The motion hearing took place last Friday, January 10th.  During the hearing, Judge ...

Judge Orders Emergency Halt of AB 51 Employment Arbitration Law

A federal judge issued a temporary restraining order on Monday, December 30, to halt enforcement of California’s Assembly Bill 51 (AB 51), which was scheduled to go into effect on January 1, 2020. AB 51 would have prevented employers from requiring employees to enter arbitration agreements as a condition of their employment for claims brought under California’s Fair Employment and Housing Act and the Labor Code. AB 51 also would allow workers to pursue damages and attorneys’ fees and open employers up to criminal enforcement of up to six months imprisonment for violating AB ...

Sexual Harassment Training Must Now Include Gender Identity, Gender Expression and Sexual Orientation

In light of the substantial media attention given to sexual harassment issues in recent months, employers should anticipate new legislation on this topic. Senate Bill 396, however, was drafted before the increased focus on these issues began.  As of January 1, 2018, the enactment of the Transgender Work Opportunity Act (SB 396) makes California the first state to require that harassment trainings cover the topics of gender identity, gender expression and sexual orientation.

The Department of Fair Employment and Housing (DFEH) already required sexual harassment training for ...

New and Proposed Tax Legislation Present New Difficulties for Employers Attempting to Settle Sexual Harassment Claims

Most employers have heard of the Tax Cuts and Jobs Act, signed into law on December 22, 2017, and have contemplated what it may mean for them.  What has been largely overlooked, however, is a denial of deduction buried deep in section 162(q) of the Internal Revenue Code, which may have a significant impact on employers’ ability to settle lawsuits based on sexual harassment or sexual abuse.  Referred to as the “Harvey Weinstein Tax” (even though it is not a tax), section 162(q) provides:

  • No deduction shall be allowed … for (1) any settlement or payment related to sexual harassment or ...
California Legislature Increases Benefits for Employees on Family Leave and State Disability

For periods of disability commencing on or after January 1, 2018, Assembly Bill 908 will increase the benefits provided to individuals in the Paid Family Leave and State Disability Insurance programs.  AB 908 raises the level of benefits from the previous level of 55 percent of an applicant’s wages to 60 or 70 percent of the applicant’s wages depending on the applicant’s income.  Low income employees are eligible for the maximum benefit level of 70 percent.  AB 908 also removes the prior seven-day period that employees had to wait in order to gain eligibility for family temporary ...

California Extends Family Leave Requirements to Smaller Employers

Effective as of January 1, 2018, Senate Bill 63 provides that employers with 20 or more employees within a 75-mile radius must grant an employee’s request to take up to 12 weeks of unpaid parental leave to bond with a new child within one year of the child’s birth, adoption or foster care placement.  In addition, employers must provide continuance of group health coverage during the leave period on the same basis as would have been provided had the employee continued to work.  These coverage costs can be recovered if the employee fails to return from the leave and the failure is for a reason ...

Senate Bill 621 Gives Part-Time Educators Their Proportional Share

Senate Bill 621 will become effective on January 1, 2018.  The bill amends Labor Code section 515.8 and is intended to address the ambiguities in Assembly Bill 2230 which was enacted last year.  AB 2230 had set a new earnings standards for designating private school teachers as exempt from overtime which were based on the employee earning a monthly salary equivalent to the greater of no less than the lowest salary offered by any school district or the equivalent of no less than 70% of the lowest schedule salary offered by the school district or county office of education in which the private ...

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