Month: November 2020

In 2018, the US Supreme Court issued its case in Epic. It involved 3 Consolidated federal circuit court cases on the question whether arbitration agreements signed by employees allowed waiver of class action lawsuits. Epic decided that employers nationwide, can now prevent its employees in employment disputes from litigating class-action lawsuits if there is an arbitration agreement prohibiting same.

That was a decided victory for employers. But what about individual employee claims? For example, wage and hour, discrimination, sexual harassment, retaliation, over time, missed meal and rest breaks, FEHA claims, or in the California context, the provisions of the labor code? In essence, can all employee disputes now be forced into arbitration? In other words, does this now allowing employer to make a motion to compel all state claims? If that is the case, it would have an almost monumental effect: essentially barring employees from ever going to court to litigate all their claims—instead, only through such tribunals as the American arbitration Association and JAMS.

To answer this question, a more detailed analysis of Epic is in order. It began with the acknowledgment of the “liberal federal policy favoring arbitration agreements . . . the plain meaning of the statute and the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, the speedy and not subject to delay and obstruction in the courts”.

In light of this unwavering public policy in favor of arbitration, the court then queried whether there were any exceptions after parties voluntarily entered into an arbitration agreement. It cited to what is called the “saving clause” which “allows courts to refuse to enforce arbitration agreements upon such grounds as exist at law or in equity for the revocation of any contract” (section 2 of the FAA). In turn, the court held that clause “permits agreements to arbitrate to be invalidated by generally act applicable contract offenses, such as fraud, duress, or unconscionability” citing Conception.

In most cases, it would be hard to prove fraud or coercion. But an unconscionable contract would be a different matter. California courts are very liberal in this regard and lean toward this if they find a contract is one of adhesion. Namely, forcing an employee, as a condition for employment, to sign the arbitration provision or else. So it can be expected the California courts, even in light of epic, will still invalidate these provisions.

In Epic, as to its specific facts, found that the contract was not unconscionable. But it did so without much analysis. It might be possible for it to change its mind if other facts are presented in a later matter. But based upon the other language of epic, this will probably not be the case.

This is because epic found in the battle between voiding a contract for unconscionability and the public policy in favor of arbitration, the latter will win out: “This fundamental change to the traditional arbitration process, the court said, would sacrifice the principal advantage of arbitration– it’s informality– and make the process slower, more costly, and more likely to generate procedural morass than final judgment.”

Going even further, the court emphasized being wary for state courts invalidating arbitration on general public policy grounds: “Just as judicial antagonism toward arbitration before the arbitration Act’s enactment manifested itself variety of devices and formulas declaring arbitration against public policy, Conception teaches that we must be alert to new devices and formulas that would achieve much the same result today.” Ergo, California’s decided, almost uncontrolled bias to protect employee rights and place them in a jury trial.

If the court continues to emphasize this public policy, then it will strike down California’s future attempts to invalidate based upon unconscionability.

In fact, a head-on collision between California’s liberality and Epic will shortly be the case. This is based on the recent California Supreme Court case of Lawson v. ZB N.A., 18 Cal.App.5^th 705 (2017) which held an employee does have the right to ignore an arbitration provision and go directly into court to enforce lost wages and civil penalties under the labor code.

In the meantime, arguments can be made by both sides and we will have to await not only the California Supreme Court decision, but a follow-up US Supreme Court decision.

HR Consulting Network can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

This is a short guide of the steps to be taken by an employer as a result of the Coronavirus. In the categories below, it depends upon the extent to which an employee has contracted the virus or been exposed to it.

GENERALIZED FEAR ONLY

Has no Symptoms and no Prolonged Exposure to Someone with COVID-19, But Still Has a Generalized Fear of Going to Work:

In the absence of a State closure of the business and/or stay-at-home order, and assuming it is not necessary to stay home to take care of a child whose school is closed, the person must return to work. If not, it is job abandonment. Of course, this assumes the company has maintained a clean and safe working environment.

STATE SHUTDOWN

The State Has Ordered Businesses to Shut Down or Issued Stay-At-Home Orders:

Whether or not an employee has symptoms or has tested negative, and whether or not an employee wishes to work, there must be compliance with these orders.

However, in the author’s opinion, the company may maintain a skeleton crew as necessary to preserve the very essence of the business and if it would be an undue hardship otherwise.

STAY OPEN BUT WITH CONDITIONS

Needless to say, a company is to observe all mandatory conditions imposed at the state and federal level. Remember OSHA’s “General Duty Clause” which requires the maintenance of safe working conditions. If there is noncompliance with even one of these mandatory rules, it will be Exhibit 1 in a lawsuit.

TESTED NEGATIVE AND HAS NEVER BEEN TESTED POSITIVE

Many persons are simply curious and have gone out and received a test of COVID-19. It came back negative. Assuming they have not had symptoms or prolonged exposure to persons with the virus, nothing prevents them from continuing to work.

Although there is no definitive guidelines from the CDC, it is recommended they receive a one-half day off for the testing and be paid.

NOT BEEN TESTED

Has Symptoms (10-day Rule):

Send home immediately. Then 2 options:

• Return to work after: a) at least 24 hours have passed since last fever without the use of fever reducing medication, b) improvement of symptoms and c) at least 10 days since symptoms first appeared with COVID-19.

                                                     OR

• Get tested. This is optional but not required. Thus, the CDC makes it voluntary with the following language: “Depending on your healthcare provider’s advice and availability of testing, you might get tested . . . if you will be tested . . . 

This means the employee may either wait-it-out for the symptoms to subside or decide to be tested. If there is testing, the employee must have no fever or respiratory symptoms and receive two negative tests results in a row, at least 24 hours apart.

For example, an employee might be free of symptoms of COVID-19 within a few days and not want to wait the 10 full days. That person can then take the two tests that are negative and return to work earlier. But remember, if the first test is positive, you have to start all over.

Been Exposed (14-day Rule):

Close contact is defined as being within 6 feet of an infected person for approximately 15 minutes. “Infected person” is defined as one with symptoms in the last 14 days or who has tested positive. In other words, prolonged exposure. Brief interactions do not count.

Examples of COVID-19 exposure: 1) Sneezed or coughed-upon even for a few seconds, 2) Face-to-face encounters where an infected person is talking directly to you for a substantial period of time, 3) Close quarters in confined spaces or 4) Living with a roommate or spouse who has symptoms or has tested positive.

If there is prolonged exposure, the person should be sent home for 14 days after last exposure. While at home, maintain social distancing and self-monitor for symptoms and check one’s temperature twice a day.

The CDC requires notification to other employees who may have been exposed. Maintain the confidentiality of the infected person.

For employees who have not had prolonged exposure (simply being in the general area or brief interactions), they should self-monitor for symptoms and if they develop, notify their supervisor and stay home.

Confused? Why does the CDC recommend 14 days in one instance and only 10 days in the other? This is because a person who has merely been exposed may take a longer to become infected (hence the need for 14 days). As stated by the CDC: “The CDC recommends 14 days of quarantine after exposure based on the time it takes to develop illness if infected. Thus, it is possible that a person known to be infected could leave isolation earlier than a person who is quarantined because of the possibility they are infected.”

TESTED POSITIVE

Did not Have Symptoms for COVID-19:

This is a relatively rare situation. Applies to employees that had very minor symptoms, if any or were asymptomatic. Typically applies to younger and more healthy individuals who were readily able to fight-off the infection.

Option 1: If the employee continues to be symptom free, they can return to work if there has been at least 10 days after taking the initial test. In this circumstance, they are not required to retest.

                                                           OR

Option 2: Although not required, if the employee does not want to wait 10 days, he or she can retest. They can return to work after receiving two negative tests in a row, at least 24 hours apart.

Has Had Symptoms:

Applies to most employees—namely who have been seriously ill with past symptoms.

Option 1: Can return to work: a) after 3 days with no fever (without the use of medicine that reduces fevers), b) respiratory symptoms have improved (for example, cough and shortness of breath) and c) 10 days have passed since symptoms first appeared.

                                                            OR

Option 2: Re-testing optional. Return to work after receiving two negative tests in a row, at least 24 hours apart. Cannot take the test unless you are fever free and no longer have respiratory problems.

Caution: If your first re-test is positive, you have to start the re-testing all over again. It is best to wait a number of days because the virus may still be in your system.

                       WHEN IN DOUBT, USE A DOCTOR’S NOTE

An employer can always recommend an employee receive advice from a doctor. This is voluntary and cannot be required. But if the employee receives a note from the doctor that he or she may return to work, the company may honor same.

Just the opposite can occur. If a healthcare provider determines the employee is to be tested, then testing is required.

WHAT TO DO WHILE WAITING FOR THE TEST RESULTS?

Although there is some confusion in this area, if the employee has symptoms, traveled abroad or has been exposed, there should be self-quarantine while waiting for the results.

If not, the employee can work while waiting for the results as long as the usual precautions are met, including social distancing.

WHAT IF TAKES TOO LONG TO GET TESTED?

There can be various difficulties in getting tested. This may include: a) long lines, b) waiting days to get tested, c) trying to find a testing center or d) waiting a substantial period of time to get the results.

But these difficulties do not excuse the need for getting the test. For example, if there is a requirement of receiving two negative tests in a 24-hour period, an employee cannot forgo the second test just because it takes too long.

DON’T GET TESTED TOO SOON

Assume an employee has had symptoms, but within the last couple of days feels better. Or, they have cold-like symptoms and don’t think it is related to Coronavirus. Do not rush out and get tested. The virus can still, in a small degree, be in your system while you are asymptomatic. This is why the CDC recommends waiting 10 days after the onset of the symptoms and after three days of no fever.

As stated above, that can be a real “Catch 22”. If you jump the gun and test too early and it ends up being positive, you have to wait another 10 days and be tested negative twice within 24 hours.

REQUIRING A DOCTOR’S NOTE OR A TEST RESULT BEFORE GOING BACK TO WORK

According to the CDC, this cannot be required because “healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.”

For example, if an employee has symptoms and has self-quarantined for 14 days, but is feeling better, they can return without doctor’s note.

EXAMPLES

Example 1. Joe is a sous chef in the kitchen of Company A. Like most other restaurants, this kitchen is in rather close quarters. Because of the heat generated by the kitchen, it is not always practical to wear one’s mask on a continuous basis. On one particular day, Frank a line cook, tells his supervisor he is experiencing COVID-19 symptoms and is sent home. Joe remembers the previous week, as normal, he walked by Frank within a couple of feet a number of occasions. For example, to talk to other employees, go back and forth to the storeroom, take things in and out of the commercial refrigerator, and also work at his station several yards away. His passing by Frank literally lasted only a few seconds at a time and he does not remember stopping near him or facing/ talking with him. Joe remembers some of the employees, including Frank, lowered their face masks. Otherwise, all kitchen staff have been observing social distancing of 6 feet. Joe would not necessarily have to be sent home. Remember also that if all employees within that same kitchen were sent home, the business would essentially be shut down.

Note how this might be different if any of the following occurred: a) Frank coughed in someone’s face, b) Frank was in close quarters, including touching and grabbing, during horse play with another employee, c) the employees frequently shared cooking utensils, or d) there was frequent brushing up against each other.

Example 2. John is the office manager for B Company. The office currently has approximately six employees. Desks and workstations have now been set up to be at least 6 feet apart.

On four separate occasions last week, John passed Bill in the hallway going to the restroom. There also were a few occasions when he passed Bill’s desk within 6 feet. They did not engage in any conversation.

It was then determined that Bill has just tested positive for COVID-19. This does not appear to be the type of persistent contacts that would require John to be sent home.

Notice how this would be different if: a) there was a sharing of files or office equipment, b) there were frequent close quarter meetings in the conference room or c) employees sat side-by-side in the break room.

Example 3.  C is a manufacturing company. Dozens and dozens of its workforce are spread out in long tables, workbenches and workstations. They work alongside each other, although at 6-foot intervals.

Linda and Sarah work next to each other for the full eight-hour shift. Although they are 6 feet away, on numerous occasions during the day they pass by each other to either pick up material or take finished products to the next department for packaging and shipping. In the past, they would talk with each other for hours on end and catch up on the latest news. However, they no longer do so.  While doing their work, there is no physical need to be within 6 feet. They also eat their lunch at separate locations.

It was then discovered Linda either has experienced COVID-19 symptoms or tested positive. It would not be mandatory to send Sarah home.

Example 4:  The same example above except on a frequent basis both Linda and Sarah are required to feed into a large machine raw material or product. They can literally be inches away from each other when this is done. Because of the close and prolonged contact, it would be recommended to send Sarah home.

The same would apply if employees are frequently receiving the product handled by other employees as part of the sequential manufacturing process.

Example 5:  D Company is a hotel. There is no longer valet parking, no room service directly to a patron’s room, no bellhop’s handling luggage, or opening doors for patrons. Check-in staff and receptionists all where masks.

One of the maintenance persons has tested positive. However, just because that person may have walked by patrons in the hallway or spent some time in the lobby/reception area, does not mean patrons would have to be alerted.

Example 6:  E Company has outdoor seating and picnic tables for employees during the lunch hour. Debbie and Joan are not only co-employees, but good friends. The company observes social distancing even during the lunch hour. In many cases persons at the picnic tables sit 6 feet apart.

Unfortunately, it is later determined Debbie tested positive for COVID-19. Even worse, many co-employees observed that during the lunch hour, they were literally inches away from each other when they looked at each other’s cell phone for pictures of their children, vacations, sporting events and shopping events.

Because of the close and prolonged contact, Joan must be sent home.

Example 7: F Company is a golf course. It has followed many of the attached guidelines, including no close person-to-person lessons, on line purchases, online reservation of tee times, only one person at a time at the pro shop and the back office, and a battery of other protective measures.

On one occasion, George gave a group golf lesson to members at the golf range. Sign-ups were limited to 10 people and using their own clubs. Members were to stay 6 feet apart. At the head of the class, George was over 10 feet away.

Unfortunately, it was later determined George tested positive. Because of the social distancing, there would be no need to quarantine the members.

Example 8: G Company is an exercise gym. It offers its members a number of classes. Participants observe social distancing and instructors are always at the front of the class, several yards away. Brenda in the last couple of weeks has given several such classes. But it was then determined she had symptoms and was sent home. Because of the social distancing, she it would not be necessary to direct self-quarantine of the members.

It is noteworthy there should be company rules against the following: a) allowing unlimited numbers of members into the gym at one time, b) not sterilizing the equipment on a daily basis, c) one-on-one instructing or d) when showing a member how to use equipment, having close contact with them or touching.

Example 9:  H Company has an employee that shares an apartment with a roommate. That roommate has now tested positive. It is imperative that the employee self-quarantine and/or be tested as soon as possible.

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