On May 23, 2022, the California Supreme Court issued its decision in Naranjo v. Spectrum Sec. Servs. Inc. (Naranjo), holding that meal and rest break premiums (also known as extra pay or premium pay) constitute “wages” that: (1) must be accurately reported on employee wage statements pursuant to Labor Code section 226 and (2) must be timely paid to employees to avoid waiting time penalties pursuant to Labor Code section 203. The Court explained that “although the extra pay is designed to compensate for the unlawful deprivation of a guaranteed break, it also compensates for the work the employee performed during the break period.” Thus, employees may be entitled to wage statement penalties and waiting time penalties where the employee worked through their break.
As a result of the COVID-19 pandemic, remote working became a necessity. Despite the easing lockdowns, the trend is likely to stay, particularly with “workstations” being actively promoted by the travel industry; however, there are considerable tax consequences for international employers. In this International News article, McDermott’s Gero Burwitz and Isabella Denninger discuss the complexity of this new working order and how international businesses can navigate it.
On January 15, 2022, the New York City Council enacted Local Law 32 of 2022 (Wage Transparency Law or Law) to amend the New York City Human Rights Law (NYCHRL) to require that most employers include compensation data in their job advertisements. The Law was supposed to take effect on May 15, 2022, however, it faced criticism over a number of ambiguities, including undefined penalties. In response, on April 28, 2022, the New York City Council passed an amendment to the Wage Transparency Law. Among the biggest changes is that employers now have until November 1, 2022—more than six months—to ensure compliance with the Law’s requirements. If Mayor Eric Adams signs the Law, which he is expected to do, New York City will become the second jurisdiction in the country (the first being Colorado) to require employers to include minimum and maximum potential salary amounts for open positions in job postings.
OSHA Announces Plan to ‘Expand Its Presence’ in Certain Healthcare Facilities Treating COVID-19 Patients
Between March 9, 2022, and June 9, 2022, the US Occupational Safety and Health Administration (OSHA) will “expand its presence” in hospitals and skilled nursing facilities that treat COVID-19 patients and that were previously cited or issued Hazard Alert Letters for alleged COVID-19 violations. OSHA’s stated purpose is to “target high-hazard healthcare facilities” to “verify and assess . . . compliance actions taken” by employers to rectify prior allegations related to COVID-19 safety violations. The initiative is focusing on employers’ “readiness to address any ongoing or future COVID-19 surges.”
On April 21, 2022, the California Division of Occupational Safety and Health’s (Cal/OSHA) Standards Board approved the Third Readoption of the state’s COVID-19 Prevention Emergency Temporary Standard (ETS). Per Governor Gavin Newsom’s Executive Order N-23-21, the Third Readoption will remain in effect for no longer than December 31, 2022. The Third Readoption makes some additional material changes and clarifications, including acceptable return-to-work criteria, elimination of certain cleaning and social distancing requirements, and creation of a “returned case” category of workers recovered from COVID-19. Employers in California should update their COVID-19 ETS policies to ensure continued compliance with Cal/OSHA’s changes in the Third Readoption.
If the US Supreme Court overturns Roe v. Wade (as suggested by a leaked draft on May 2), employers who want to provide abortion coverage to employees and their families could encounter serious challenges. In this Bloomberg Law article, McDermott’s Sarah G. Raaii noted that employers that provide travel expenses for abortions might encounter resistance from state laws like a Texas statue that permits citizens to sue abortion providers for abortions performed around six weeks.
“If a state wants to interpret this very broadly—and it seems that some of them have indicated that they do—to really just punish anyone involved even peripherally with providing abortion in the states, employers could potentially be at risk.” Raaii said.
What are some of the challenges and opportunities of hybrid work arrangements? In this Lexology GTDT Market Intelligence article, McDermott Partner Carole Spink offers insight about tracking remote work, navigating local rules, and protecting confidential and propriety information.
Law firms and other members of the corporate world are seeking to find the right balance between in-person and remote work. According to this American Lawyer article, McDermott Chairman Ira Coleman noted the “cultural expectation” of in-person work at his firm.
“One of the big challenges for us is trying to navigate how we think about mentorship and apprenticeship when so much of the work we’re doing now is actually being done virtually,” Coleman said.
Restrictive covenants were once the exclusive province of the courts in each state. That is no longer the case. Although case law still governs restrictive covenants, states also are enacting restrictive covenants statutes.
Today, 30 states (including Washington, DC) have laws affecting restrictive covenants. Unlike state statutes regulating trade secrets (which largely follow the Uniform Trade Secrets Act), the state statutes governing restrictive covenants run a wide gamut. These changes reflect an increasing hostility towards restrictive covenants. In this Westlaw Today article, McDermott’s Brian Mead and Aaron P. Sayers provide an overview of state statutes that became effective in late 2021 or are becoming effective in 2022.
On February 28, 2022, the White House issued a fact sheet outlining several efforts aimed to increase safety, accountability, oversight and transparency in the senior services industry (Fact Sheet). Although the Fact Sheet’s initiatives have not yet been implemented, President Biden reiterated his administration’s focus on nursing home reform during his March 1, 2022, State of the Union address. Accordingly, the efforts described in the Fact Sheet provide stakeholders with a peek into the regulatory crystal ball of the governmental efforts that may be forthcoming, either through new laws, regulatory action, policy changes, enforcement activities or subregulatory guidance.