Stokes Wagner Quarterly Legal Update

ATLANTA QUARTERLY LEGAL UPDATE One Atlantic Center December 2021 Suite 2615 1201 W. Peachtree St Atlanta, GA 30319 404.766.0076 ITHACA 903 Hanshaw Rd Ithaca, NY 14850 607.257.5165 LOS ANGELES 15250 Ventura Blvd Suite 710 Sherman Oaks, CA 91403 213.618.4128 PITTSBURGH 858 Kennebec St Pittsburgh, PA 15217 412.521.6691 SAN DIEGO One American Plaza 600 West Broadway Suite 910 San Diego, CA 92101 619.232.4261 SAN FRANCISCO 1 Harbor Dr Suite 211 Sausalito, CA 94965 415.943.9471

TABLE OF CONTENTS (CLICK THE TITLE TO GO DIRECTLY TO THE ARTICLE) NATIONWIDE » Fair Labor Standards Act Joint Employer Rule » OSHA’s Emergency Temporary Standard Vaccination & Testing Policies » Medical and Religious Exemptions Pose Challenges to Vaccine Mandates » EEOC Issues Guidance to Employers Issuing a COVID-19 Vaccination Mandate » The Department of Labor’s New 80/20 Rule CALIFORNIA » Meal and Rest Break Premiums to Include Hourly Wages and Nondiscretionary Payments » California’s Pending Rule on Law Limiting Arbitration Agreements » Los Angeles County Issues Vaccination Mandate for Indoor Bars, Breweries, Wineries, & Nighclubs » Electronic Signature Safeguards for Employee Agreements STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

TABLE OF CONTENTS (CLICK THE TITLE TO GO DIRECTLY TO THE ARTICLE) GEORGIA » EEOC Files First Pandemic-Related Work-From- Home Disability Discrimination Lawsuit NEW YORK » New York City Hotels Must Reopen by November 1 or Pay TEXAS » Expanded Liability for Texas Employers Who Tolerate Sexual Harassment VIRGINA » Virgina Joins the Growing List of States With Consumer Data Privacy Protection THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION. STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 4 Fair Labor Standards Act contractor. In the hospitality Joint Employer Rule industry, it is not uncommon for restaurateurs or hotel operators Effective October 5, the FLSA to own multiple units under “joint employer” rule developed separate legal entities and have under the previous administration certain employees splitting their has been rescinded. Under time between the locations. the 2020 rule, only the degree Under these circumstances, of control exercised over an which entities are responsible for employee mattered; now, both ensuring that employees are paid control over the employee and properly under the FLSA, and who other factors like employee will be responsible if they are not? dependence on an entity for work can determine whether that Prior to the 2020 rule, the DOL’s entity is to be considered a “joint determination involved analyzing employer” under federal wage various circumstances, including and hour law. both the entity or entities upon which employees were dependent The Fair Labor Standards Act is for their work and whether one the federal statute that requires or both entities exerted control the payment of minimum over the terms and conditions wages and overtime. There is no of the employees’ work. The DOL definition of “joint employer” in had explicitly rejected the notion the FLSA, but since its passage, that the control test could be the Department of Labor has the exclusive test because the affirmed that multiple employers definition of “employ” under the can be jointly liable for violations FLSA is broader than in any other of the Act. The analysis of this statute or common law context, question commonly arises when, and it was therefore appropriate for example, an employee is to consider a broader range of employed by a temporary staffing factors. The Supreme Court has agency but has been assigned recognized both the control and to work for an agency client, or the “economic dependence” when an employee is employed considerations of the joint by a subcontractor but is also employer analysis. directed by the owner or general STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 5 The 2020 rule explicitly 4) control of employee records. precluded consideration of But courts also consider the economic dependence in “economic realities” of the favor of exclusively assessing work relationship, which can whether the putative joint include factors like employees’ employer exerted control over dependence on an employing the employees. Its apparent entity for their work. intent and likely impact was to reduce the number of employers It is important for companies found to be joint employers. to be aware that sharing supervision or other Most of the 2020 rule was responsibility for employees rejected by a September can result in liability under the 2020 federal court case in the federal wage and hour laws, Southern District of New York, even if that is not intended. which decided that the rule had been passed in violation of the - A. Mizel Administrative Procedure Act in part because it conflicted with other DOL rules. The case is on appeal, but as of October 5, 2021, the DOL has rendered the case essentially moot by rescinding the 2020 rule, thus reinstating previous interpretations of the joint employer rule. In practical terms, many courts look primarily to indicia of control anyway. Factors generally considered include an entity’s: 1) authority to hire and fire; 2) authority to promulgate work rules and assignments; 3) day-to-day supervision; and STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 6 OSHA’s Emergency by January 4, 2021, but all Temporary Standard unvaccinated employees Vaccination & Testing must wear masks as of December 5, 2021. Policies 4. Employers must provide reasonable time, including OSHA released its “Emergency up to 4 hours of paid time, Temporary Standard” (ETS) in to receive each vaccination response to President Biden’s dose and reasonable time employer vaccination mandate and paid sick leave to recover on November 5, 2021. The details from side effects. of the new ETS may be found 5. Employers must determine here. OSHA has also issued a the vaccination status Fact Sheet and a Summary of the of each employee by ETS. obtaining acceptable proof of vaccination, and they Highlights of the ETS include: must maintain a “roster” of each employee’s vaccination 1. The ETS applies to all status. Currently, booster employers with at least shots are not included 100 employees firm-wide in the definition of “fully or corporate-wide at any vaccinated.” time the ETS is in effect 6. Each unvaccinated employee (independent contractors are must be tested weekly, not included in this count). beginning January 4, 2021. And the employer must 2. The ETS will not apply to maintain records of the test employees who work from results for so long as the home, work exclusively ETS is in effect. Over-the- outside, or report to a counter tests from a local workplace where other pharmacy are permissible, individuals are not present but the employee cannot (but they do count towards self-administer and self- the 100-employee threshold). read the results (i.e., it must be proctored). Importantly, 3. Employers must implement the ETS does not require a mandatory vaccination policy (or policy requiring vaccination or weekly testing) STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 7 the employer to bear the fully vaccinated employees at the workplace and the cost of this testing (but total number of employees at the workplace. it acknowledges other On November 12, 2021, a laws and/or a CBA may Federal Court of Appeals stayed enforcement of the mandate, require it). Thus, employers which temporarily halts its implementation pending further should refer to state or litigation as to the legality of the ETS. Now, a different local requirements before Federal Court is reconsidering the stay and could lift the deciding who will be stay allowing the ETS to be implemented. Until then, OSHA financially responsible for has suspended activities related to the implementation testing costs. Additionally, and enforcement of the ETS pending future developments for employees seeking an in the litigation. Regardless, we anticipate that the “losing” exception from vaccination party in the stay battle will ask the Supreme Court to step in to due to a religious belief make a final determination. or medical disability, the Separate from the litigation, the ETS also acts as a proposal employer may be required for a permanent standard and OSHA has decided to extend the to pay the costs or weekly comment period for that rule by 45 days. The comment period is testing for such employees. now extended through January 19, 2022. 7. Employers must provide all employees with information about the ETS and workplace policy, a copy of the CDC document “Key Things to Know About the COVID Vaccine”, information about protections against retaliation and discrimination, and information about laws that provide for criminal penalties for knowingly supplying false statements or documents. Further, employers must make available to its employees the aggregate numbers of STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 8 The bottom line is that the OSHA ETS is being challenged, but it is not dead yet. Employers with over 100 employees should continue to take steps to prepare for compliance with the OSHA ETS. If it survives, compliance may be required on short order. - H. Pace STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 9 Medical and Religous encompasses not only organized Exemptions Pose Challenges religions, but also informal beliefs. “Religion” under the law to Vaccine Mandates can also encompass non-theistic and moral beliefs. Federal and local governments have implemented varying Employers should generally vaccine mandates for certain assume an employee’s request employees and businesses. for religious accommodations Exemptions to these vaccine sincerely held and not make mandates, however, generally fall assumptions about the nature into two categories: medical or of an observance, practice, or religious. belief. Employers should only request documents if there is an In general, an employer may objective basis for questioning require that all employees the employee’s honesty. obtain vaccinations as part of legitimate health and safety Medical Exemptions requirements that are job-related Some individuals may have and consistent with business medical conditions which necessity. Local governments, prevent them from getting a such as New York City, San vaccine. Medical exemptions Francisco, and Los Angeles have may include allergies to vaccine passed ordinances that require components, a history of Guillain- vaccine mandates for certain Barré syndrome, or other health indoor businesses, citing that ailments that make the vaccine these mandates are considered risky for the individual. reasonable and necessary to mitigate the spread of COVID-19. If an employee raises a religious or medical basis for an exemption, Religious Exemptions the employer is required to follow Individuals have a federal right to the interactive process outlined be free from discrimination on the by the Americans with Disabilities basis of religion. As part of their Act (ADA). On a case-by-case religious beliefs, many individuals basis, employers must determine object to vaccines. “Religion” if they can offer an alternative is very broadly defined and STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 10 reasonable accommodation that does not impose an undue hardship on the business. Accommodations include but are not limited to weekly testing and wearing a face covering. - C . Tantoy STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 11 EEOC Issues Guidance to a disability; therefore, those Employers Imposing a questions must be “job related COVID-19 Vaccination and consistent with business Mandate necessity.” In other words, the employer would need to have The EEOC has confirmed that a reasonable basis to believe federal law permits employer that an employee who does vaccine mandates as long as they not answer the question and are applied equitably and take therefore cannot be vaccinated account of the potential need will pose a direct threat to the for reasonable accommodation employee’s own health or safety under Title VII or the Americans or to the health and safety of with Disabilities Act. On May 28 others in the workplace. See and October 25, 2021, the EEOC further below. issued additional guidance on this subject. Employers who offer employees the ability to obtain the COVID-19 Accessibility. Employers seeking vaccination from the employer to impose a vaccine mandate on a voluntary basis are not must take account of the fact that required to ensure that screening vaccines are more accessible to questions are “job related some populations than to others and consistent with business and must avoid issuing mandates necessity,” as long as employees that have a disparate impact are not penalized for refusal to on protected populations of answer the questions. employees. One way to avoid that problem is to offer employees a Employers that do not provide the way to obtain the free vaccine. vaccinations to their employees are encouraged to provide Employers who require employees with information about the vaccine and even offer employees to receive a COVID-19 transportation to sites that offer it. An employer may offer an vaccination from the employer incentive to employees to obtain the vaccine, but excessively or its agent must keep in mind substantial incentives will be that the screening questions asked prior to administering the shot may elicit information about STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 12 regarded as coercive and render interactive process to determine the “voluntary” nature of the what accommodations are vaccination suspect. reasonable and sufficient to mitigate any direct threat to Records. It is permissible to ask the workplace. Note that even for proof of vaccination status, vaccinated employees may ask as long as those records are kept for reasonable accommodations confidential like other employee if the employees provide medical medical records. evidence that despite vaccination, they are at heightened risk for Accommodations. For those severe illness from COVID-19. employees who have established the need for a reasonable An employer is permitted to accommodation based on refuse to allow an employee to medical or religious grounds, return to work if the failure to the EEOC proposes a variety become vaccinated establishes of accommodations that may a “significant risk of substantial suffice to allow an employee to harm” that cannot be eliminated continue working: or reduced by reasonable accommodation. In analyzing • Wearing a face mask while at whether there is a significant risk, work; the employer may take account of current medical knowledge • Socially distancing from co- about COVID-19 and consider workers and others; how closely the employee is required to work with others, • Working a modified shift the ventilation of the worksite, that lessens the need for and the degree to which other interaction with others; employees are protected by vaccination or wearing masks • Taking regular COVID-19 and undergoing routine testing. tests; • Telework; and • Reassignment. As always, when considering October 25 & 28, 2021 Update: reasonable accommodations, The EEOC issued updates on the employer and employee are October 25 and October 28, 2021, both obligated to participate in an dealing with accommodation STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 13 of employees’ sincerely held employer’s COVID-19 vaccination religious beliefs. In particular, requirement. “Title VII does the EEOC states that while it not protect social, political, or is typically assumed that an economic views, or personal employee’s professed religious preferences. Thus, objections belief is sincere, an employer to COVID-19 vaccination that may be justified in making a are based on social, political, “limited factual inquiry and or personal preferences, or on seeking additional supporting nonreligious concerns about the information” to support a request possible effects of the vaccine, for reasonable accommodation, do not qualify as ‘religious beliefs’ and an employee who fails under Title VII.” to cooperate risks losing any subsequent claim for failure https://www.eeoc.gov/wysk/ to accommodate. Factors to what-you-should-know-about- consider include “whether the covid-19-and-ada-rehabilitation- employee has acted in a manner act-and-other-eeo-laws inconsistent with the professed belief (although employees - A. Mizel need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.” The employer may ask for an explanation of how the employee’s religious belief conflicts with the STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 14 The Department of Labor’s above categories, or “is not part New 80/20 Rule of the tipped occupation,” is not On October 29, 2021, the Department of Labor issued a eligible for a tip credit and must Final Rule codifying the “80/20 rule” for determining what work therefore be compensated at a is eligible for a tip credit when determining wages, as well as a rate which is at least minimum new “30 minute” rule. The rule shall go into effect on December wage. Examples provided by 28, 2021. the Final Rule include servers or bartenders cleaning the bathroom, or housekeepers cleaning non-residential portions of a hotel, such as a restaurant or meeting rooms. The previous rule that The Final Rule becomes more employers may apply a tip complicated when applied credit to work performed by to non-tipped work which “tipped employees,” defined by does directly support tipped the Fair Labor Standards Act work. Although the Final Rule as “any employee engaged does not provide a test to in an occupation in which determine what work qualifies, he customarily and regularly it provides a non-exhaustive receives more than $30 a month list of examples, including: for in tips,” has changed in that servers, folding napkins, rolling the work for which a tip credit silverware, and sweeping under is claimed must either be tip- tables in a dining room; for producing or non-tip-producing bartenders, slicing and pitting work that “directly supports” fruit for drinks, wiping down the tip-producing work. The Final bar or tables in the bar area, Rule defines tip-producing work cleaning bar glasses, or fetching as ‘‘work that provides service liquor and supplies; and for to customers for which tipped hotel housekeepers, restocking employees receive tips.’’ a housekeeping cart. A new hardline rule is that work which does not fall into the STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 15 Work that directly supports tipped Examples: work is only eligible for a tip credit when it does not: 1. A bartender spends 30 minutes of her shift repairing 1. Exceed a duration of 30 the plumbing in the public continuous minutes; or bathroom. The entirety of this time is ineligible for a 2. When tipped employees tip credit because it is not perform such work for more directly supporting tip- than 20% of the workweek. producing work. Directly supporting work in excess of 30 continuous 2. A bartender spends 30 minutes must be excluded minutes at the beginning of from the 20% calculation. her shift wiping down the bar, and 30 minutes at the This means two things: end of her shift doing the same. As long as she has not 1. Work directly supporting spent 20% of her workweek tipped work is eligible for on such directly supporting a tip credit when it is 30 activities, all of this is eligible continuous minutes or less in for a tip credit. duration. If such work is more than 30 continuous minutes, 3. A bartender spends 45 that entire time period spent continuous minutes wiping on this work is ineligible for a down the bar. The entire tip credit; and 45 minutes is not eligible for a tip credit, because the 2. Work directly supporting time spent on this activity tipped work which makes up exceeded 30 continuous 20% or less of a particular minutes. workweek is eligible for a tip credit. So, if a tipped 4. A bartender spends 30% of employee spends 30% of the her workweek wiping down week on such activities, 2/3 the bar, cutting lemons, and of that 30% is still eligible for other directly supporting a tip credit. The other 1/3 is work. The time spent on not. these tasks that makes up 20% of her workweek is eligible for a tip credit. The STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GENERAL ADVICE 16 time spent on these tasks that makes up the other 10% of her workweek is not eligible for a tip credit. Violations of the new rule could leave employees entitled to back pay under the Fair Labor Standards Act, as well as liquidated damages, or “double pay,” in the amount that they are owed. Furthermore, employers who are found to have “willfully” violated the FLSA are subject to civil money penalties. - W. Baker Gerwig IV STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 17 Meal and Rest Break bouses, which triggered a Premiums to Include Hourly recalculation of her overtime Wages and Nondiscretionary compensation but not her meal and rest break premiums. Payments Ms. Ferra filed a class action lawsuit in 2015 arguing that the Overview nondiscretionary bonuses should On July 15, 2021, the California also be factored into her meal Supreme Court ruled in Ferra v. and rest break premiums. The Loews Hollywood Hotel, LLC, that trial court and Court of Appeal employers must include hourly ruled in favor of Loews and Ms. wages and nondiscretionary Ferra appealed to the California payment in their calculation of the Supreme Court. “regular rate of compensation” for purposes of meal and rest break Ruling premiums, similar to overtime pay requirements. Nondiscretionary Labor Code section 226.7(c) payments include commissions, shift differentials, and incentive requires employers to pay compensation. Importantly, the ruling in Ferra is retroactive and employees one additional hour may expose employers to liability for only using the hourly rate of of premium pay at their “regular pay in past premium calculations, subject to applicable statutes of rate of compensation” for meal limitation. and rest break violations. The issue decided on review was whether the term “regular rate of compensation” meant the same as “regular rate of pay” as used in Labor Code section 510(a) for Facts overtime premium pay. Neither Like most California employers, the Labor Code nor the applicable Loews compensated its hourly Wage Order defines “regular rate employees with an additional of compensation” and the Court hour of pay based on their hourly noted that it could reasonably wage if an employee was not be interpreted as either hourly provided with a compliant meal wages or hourly wages plus or rest period. The plaintiff was a nondiscretionary payments. bartender at Loews and received In disagreeing with the lower quarterly nondiscretionary courts’ interpretation, the Court STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 18 held that the legislative history retroactively, and the Court and prior precedent supported rejected any notions of public the definition that included policy or fairness in keeping nondiscretionary payments. with this approach. In response to Loews’ concerns that the The California Legislature enacted ruling will expose employers to both the overtime and meal and “millions” in liability, the Court rest break premium labor code found no evidence to support provisions against the backdrop this assertion, and even if true, of the federal Fair Labor Standards the Court responded, “it is not Act (“FLSA”). State agencies have clear why we should favor the understood “regular rate of pay” interest of employers in avoiding as used in section 510 to be “millions” in liability over the synonymous with “regular rate” interest of employees in obtaining as used in FLSA which includes the “millions” owed to them under nondiscretionary compensation. the law. Moreover, the decision The Court found the “operative does not deprive employers of a term” to be “regular rate” and remedy or defense against claims that the terms “of pay” and “of of section 226.7 violations. compensation” did not create a different definition of the “regular Employer Takeaways rate”. Citing an example by Ferra that demonstrated the disparity • Make every effort to comply in premium pay between workers with meal and rest break receiving purely hourly rates and requirements by relieving workers receiving a combination your employees of all duty of hourly rates and incentive pay, and control to take an the Court worried that ruling in uninterrupted 30-minute favor of Loews may incentivize real break and 10-minute rest employers to lower hourly base breaks for every four hours rates to reduce the impact of (or major fraction thereof) violation premiums. worked. Retroactive Application • Ensure that meal and rest Appellate decisions on statutory break violation premium interpretation usually apply payments are made at the same regular rate used to STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 19 make overtime premium payments, including nondiscretionary earnings such as shift differentials and incentive compensation. This may require additional pay adjustments for later paid compensation such as quarterly or annual bonuses. • Consider employee arbitration agreements with class action waivers to protect from future exposure. • Consult with your Stokes Wagner attorney to develop a plan for the retroactive application of the Court’s decision. - M. Hernandez STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 20 California’s Pending Rule On October 20, 2021, the Chamber on Law Limiting Arbitration of Commerce indeed filed the petition for rehearing en banc, Agreements which automatically stays the matter. Representatives for the In mid-September 2021, the Ninth State of California will move to Circuit lifted an injunction and oppose the petition by December mostly upheld a California law, 10, 2021. AB-51 will remain in known as Assembly Bill 51 (“AB- procedural limbo and, most 51”), that prohibits mandatory importantly, is not yet enforceable arbitration agreements. AB-51 pending the rehearing with the invalidates mandatory arbitration Ninth Circuit. This process could agreements that are a condition take weeks or months. of employment, including mandatory agreements that - C. Tantoy allow an employee to “opt-out” of the arbitration provisions. Despite this ruling, AB-51 is not yet in effect. Employers may continue to roll out mandatory arbitration agreements to employees until the Ninth Circuit issues its “mandate.” In other words, the 9th Circuit’s decision (and AB-51’s enforceability) will only go into effect if/when the 9th Circuit issues its “mandate” and relinquishes jurisdiction over the case. The Chamber of Commerce had two options to block the Ninth Circuit from issuing the mandate: asking the Ninth Circuit for a full rehearing (rehearing en banc) or filing an appeal to the United States Supreme Court. STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 21 Los Angeles County Issues for any emergency or regulatory Vaccination Mandate for purpose; (2) the patron is in the Indoor Bars, Breweries, outdoor portion of the facility Wineries, & Nightclubs or uses the restroom; or (3) the patron is ordering, picking-up, or On September 17, 2021, Los paying for food or drink to go. Angeles County issued its vaccine mandate for indoor bars, More significantly, the Order nightclubs, wineries, breweries, mandates that by no later and lounges and outdoor mega than November 8, 2021, all events. The County finally issued onsite employees of any bars, its updated Health Officer Order wineries, or nightclubs must on October 7, requiring patrons provide proof that they are fully ages 12 and older to provide proof vaccinated against COVID-19, of COVID-19 vaccination status unless an employee is seeking an for entry. exemption from the vaccination requirement. Specifically, the Order mandates that as of November 8, 2021 To seek an exempt, employees any patrons of bars, wineries, must provide a declination form nightclubs and the like must stating they are declining the provide proof of full COVID-19 vaccination based on a sincerely- vaccination for entry. Although held religious belief or due to the Order took effect November “Qualifying Medical Reasons.” 8, 2021, enforcement will begin Employees seeking relief based November 28, 2021. on Qualifying Medical Reasons must also provide the employer Patrons who are not fully with a written statement—signed vaccinated are still able to receive by a physician, nurse practitioner, service in any outdoor portions or other licensed medical of the facilities. Further, there is professional practicing under the a limited exception to providing license of a physician—asserting proof of vaccination while that the person qualifies for the wearing a mask if: (1) the person exemption, without disclosing is making a delivery or pick-up, or describing the underlying providing a service or repair, or medical condition, and indicating STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 22 the probable duration of the need breweries, and nightclubs in Los for the exemption. Angeles County have not begun verifying vaccination status for If an exemption is approved, an patrons, they should review unvaccinated employee must the requirements and enact submit to at least once weekly a plan. Operators should also testing with a COVID-19 PCR or immediately develop a plan to antigen test and wear a surgical collect proof of vaccination status mask or NIOSH-approved from their employees, including respirator at all times while how to manage medical and indoors. religious exemptions and costs associated with testing. Unlike for customers of bars, nightclubs, wineries, and - J. Santos breweries, the Order does not mandate proof of vaccination for customers of restaurants or other food facilities for indoor service. Instead, the Order strongly recommends that operators of food facilities reserve and prioritize indoor seating and service for those who are fully vaccinated. Patrons who do not provide proof that they are fully vaccinated are recommended to be seated and served outdoors. Although the Order does not provide for a specific penalty, it notes that failure to comply with any of its provisions constitutes an imminent threat and menace to public health and is punishable by citation or fine. To the extent operators of bars, wineries, STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 23 Electronic Signature Here, Marinidence could not show Safeguards for Employee that the employee was the only person who could have signed Agreements the arbitration agreement, and therefore, they could not compel On May 21, 2021, a California arbitration. court of appeal ruled in Bannister v. Marinidence Opco, LLC that Bannister worked at a nursing when an employer fails to prove that an employee’s signature facility for three decades before on an arbitration agreement is authentic once the signature’s Marinidence purchased the validity is challenged by the employee, the employer cannot facility. When she was terminated compel the employee to arbitrate. a year later, she sued claiming An employer must first prove that an arbitration agreement exists, discrimination, retaliation, which can be done by including a copy of the agreement with and defamation. Marinidence the employee’s signature. If the employee claims his or her moved to compel arbitration, signature is invalid, the employer has the burden of proving by a but Bannister alleged she never preponderance of the evidence that the signature is valid. saw or signed the agreement Under California Code 1633.9, an electronic signature is attributable during the onboarding process to a person if it can be shown, for example, that the security when Marinidence took over. procedure used to determine who signed was efficacious and that Marinidence showed that its only the person to be charged with signing could have signed. onboarding procedure involved This is to be determined from the context and circumstances at the employees entering their first time of the signature’s creation. and last names, Social Security numbers, and a special “client ID” and PIN code that was the same for all employees. After logging in, the employee was required to fill out a W-4 tax form and emergency contact information prior to accessing the arbitration agreement. Based on this, as well as a declaration from the HR manager, Marinidence argued that only Barrister could have signed the arbitration agreement. STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

CALIFORNIA UPDATES 24 Barrister challenged this by known to the employee presenting evidence that there for signing documents were multiple employees electronically in order to onboarded at the time she was in show that the employee was the HR manager’s office, and that the only person who could she never touched the computer have signed the document. while the HR manager filled in Identifying numbers that an the information for her. She also employer has access to (like pointed out that the employer a Social Security number) will had access to her Social Security not suffice. number through her personnel • Do not allow HR to complete file and presented evidence that paperwork on an employee’s the HR manager continued to behalf. onboard employees remotely • Provide a hard or electronic from Utah without the employees copy of signed documents to being present. Barrister asserted the employee. that she was never told about the • Review current arbitration arbitration agreement, did not agreements to ensure that agree to sign it, and was never any e-signatures have these provided with a copy of it. safeguards in place. Contact Stokes Wagner to ensure The appellate court affirmed your arbitration agreements the trial court’s conclusion that are enforceable. Marinidence failed to meet its burden in proving that the electronic signature on the - M. Hernandez arbitration agreement was that of Barrister by showing that she was the only person who could have signed it. Employer Takeaways: • Ensure that employees have their own unique login and password that is only STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GEORGIA UPDATES 25 EEOC Files First Pandemic- onsite due to her pulmonary Related Work-From-Home condition, which causes her to Disability Discrimination have difficulty breathing and places her at greater risk of Lawsuit contracting serious illness from COVID-19. On September 7, 2021, the EEOC filed an unprecedented lawsuit The suit further alleges that alleging discrimination based Ms. Moncrief provided ISS with on a denial of a request to documentation indicating her work remotely due to concerns history of heart conditions and from the pandemic. According the associated heightened risk to the lawsuit, ISS Facility for COVID-19. Although her job Services, Inc., a Denmark-based duties generally required her to workplace experience and be in close contact with other facility management company, employees, ISS had allowed other unlawfully denied an employee employees in the same position to a request for reasonable work remotely following the June accommodation and retaliated 2020 facility re-opening. Despite against her for requesting such this, ISS denied Ms. Moncrief’s by terminating her employment. request for work from home in July 2020, and in August 2020, The case, filed in federal court her supervisor recommended in Georgia involves claimant, her for termination based on Ronish Moncrief, a former health performance. In September and safety manager for ISS 2020, the EEOC alleges that Facility Services at a facility in ISS terminated Ms. Moncrief Covington, Georgia. From March for performance-related issues 2020 through June 2020, ISS but had never advised her of required its entire workforce to such justification prior to her work remotely four days a week termination. due to the pandemic. When the facility fully re-opened in June The EEOC is seeking injunctive 2020, Ms. Moncrief requested an relief, back pay, compensatory accommodation to work remotely damages, and punitive damages two days a week and take for the alleged violations of frequent breaks while working STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

GEORGIA UPDATES 26 the ADA. Given the novelty of this case, employers should be on high-alert for similar accusations for any denials of remote work requests. In addition to following regular interactive process procedures, employers should ensure that all requests are handled consistently and carefully. - J. Santos STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

NEW YORK UPDATES 27 New York City Hotels Must Open by November 1 or Pay to exercise control over the management ofthe hotel; and On October 5, Mayor Bill de Blasio 4. Been laid off after March signed into law a bill (Int. 2397- 1, 2020 due to a closure or 2021), which requires operators of mass layoff. transient hotels to pay severance to its employees if: If a hotel does not reopen by November 1st, the legislation 1. The hotel closed to the public requires the hotel to pay a weekly and has not, by October 11, benefit of $500 per covered 2021, recalled at least 25% employee for a period of up to of the number of employees 30 weeks, for a potential total it employed as of March 1, of $15,000 per out-of-work 2020 and has not reopened employee. The obligation to to the public by November 1, provide severance would end 2021; or when an employee is recalled, or, for a closed hotel, when the hotel 2. The hotel underwent a mass reopens to the public and recalls layoff after March 1, 2020 that 25% of employees. resulted in the loss of work by at least 75% of employees This law does not apply to a hotel during any 30-day period. that has closed permanently and is being converted to an Aside from working in a covered alternative use, as long as transient hotel, to be eligible for employees are offered severance a severance payment, the hotel pay worth at least 20 days per employee must have: year of service, at the same rate that the employee was paid for 1. Been employed by the hotel paid days off. on March 1, 2020 for at least one year; 1- “Transient hotel” is defined in Section 12-10 of 2. Been employed to perform New York City zoning resolutions as “any building “hotel service”; or part of a building in which: (a) living or sleeping 3. Not been a managerial, supervisory or confidential accommodations are used primarily for transient employee who had the power occupancy, and may be rented on a daily basis; STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

NEW YORK UPDATES 28 (b) one or more common entrances serve all such living or sleeping units; and (c) 24-hour desk service is provided, in addition to one or more of the following services: housekeeping, telephone, or bellhop service, or the furnishing or laundering of linens.” 2- The term “hotel service” is broadly defined as “any work performed in connection with the operation of a hotel.” - J. Fishman STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

TEXAS UPDATES 29 Expanded Liability for Texas control over the complainant. Employers Who Tolerate • By requiring “immediate” Sexual Harassment action to remedy potential sexual harassment as Effective September 1, Governor opposed to “prompt” action Abbott signed into law three bills which was originally the which amended Texas Labor standard applied by Texas Code to significantly increase courts. Notably, employers the liability of Texas employers must take immediate and those in supervisory roles for “appropriate corrective sexual harassment. actions” but the law does not define what constitutes How has SB 45 expanded liability an “appropriate” corrective for sexual harassment? action. • By expanding the definition How has HB 21 expanded liability of “employer” for purposes for sexual harassment? of a sexual harassment claim under Texas state law. • By extending the deadline to Now, an employer for sexual file an administrative charge harassment purposes is with the Texas Workforce any person or entity who Commission from 180 days employs “one or more” after the alleged harassment employees, rather than at to 300 days after. least 15 employees. • By containing vague How has SB 282 expanded language which appears to liability for sexual harassment? expand individual liability for those who act “directly in • Businesses are not permitted the interests of an employer to use public funds to settle in relation to an employee,” sexual harassment claims. which would include managers, owners, HR professionals, and arguably The new laws only apply to any coworker who merely conduct alleged to have occurred exercises some level of on or after September 1, 2021. It STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

TEXAS UPDATES 30 is advised that Texas employers engage counsel to revisit and update their employee handbooks and sexual harassment policies to ensure their compliance with these new laws. Additional training on reporting sexual harassment is advised. - J. Fishman STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

VIRGINIA UPDATES 31 Virgina Joins the Growing The CDPA defines personal List of States with Consumer data broadly to include “any Data Privacy Protection information that is linked or With no national privacy law on the books yet, many states are reasonably linkable to an following the lead of the European Union’s 2018 General Data identified or identifiable natural Protection Regulation (GDPR) and taking privacy regulation into person,” such as data regarding their own hands. Virginia recently enacted the Consumer Data race, sexual orientation, Protection Act (CDPA), falling in line with Illinois and California. The religion, biometric data, mental trend toward broadening privacy- related legal obligations has the or physical health diagnoses, support of most Americans who, like consumers worldwide, value precise geolocation, and personal their privacy. data collected from a known Virginia’s CDPA goes into effect January 1, 2023, and does not child. It defines a “consumer” as a currently include a retroactive or look-back provision. The CDPA “natural person who is a resident applies only to companies that do business in Virginia or produce of Virginia, acting only in an products/services for Virginia residents, and either: 1) control or individual or household context”. process personal data of at least 100,000 consumers a year, or 2) It excludes individuals acting in control or process personal data of at least 25,000 consumers and a commercial or employment earn at least 50% of their gross revenue from the sale of such context. data. The Virginia law requires businesses to obtain consent from consumers before any collection or processing of sensitive data through a “clear affirmative act signifying a consumer’s freely given, specific, informed, and unambiguous agreement.” The affirmative consent requirement may provide more protection of a consumer’s sensitive data. The CDPA limits opt-out rights to situations where data is sold for money; it does not apply to “sharing” of data with third parties without compensation. Covered STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021

VIRGINIA UPDATES 32 businesses will be expected to Keep an eye out for the growing provide a secure, reliable option movement. Several other states, for consumers to opt-out and including Washington, New York, exercise their other rights to Florida, Oklahoma, Minnesota, access, deletion, and portability and Utah are also considering of their personal data. variations of broad data privacy laws. Businesses with multistate Unlike California’s data privacy act, or national presence will have Virginia’s CDPA does not create a to navigate an increasingly private right of action authorizing diverse and complex patchwork individuals to sue companies that of regulations in the absence of are selling or using their personal national data privacy regulation. data to make money. The law is enforceable only by the state’s - S. Gauvin Attorney General, which may seek damages up to $7,500 per violation after the expiration of a 30-day cure period. The CDPA provides broad exemptions and does not apply to financial institutions subject to the Gramm Leach Bliley Act (GLBA), covered entities under the Health Insurance Portability and Accessibility Act (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH), and nonprofit or educational institutions subject to the Family Education and Privacy Act (FERPA), or to data covered by federal laws including the Fair Credit Reporting Act (FCRA) and Children’s Online Privacy Protection Act (COPPA). STOKES WAGNER QUARTERLY UPDATE - DECEMBER 2021