Blog : CERG

Minami Tamaki Attorneys Named to 2020 Super Lawyers

Minami Tamaki Attorneys Named to 2020 Super Lawyers

TOP ROW (L-R): Donald K. Tamaki*; Minette A. Kwok*; Dale Minami* Top 100; B. Mark Fong*; Olivia Serene Lee**; MIDDLE ROW (L-R): Lisa P. Mak**; Seema Bhatt**; Suhi Koizumi*; Sean Tamura-Sato**; La Verne A. Ramsay; BOTTOM ROW (L-R): Dian Sohn; Angela C. Mapa; Claire Y. Choo; Judy Hinh Wong; Leyla Mostafavi – *Chosen to 2020 Super Lawyers **Chosen to 2020 Rising Stars 

We’re proud to announce that nine of Minami Tamaki LLP’s attorneys were selected as Northern California Super Lawyers and Rising Stars for 2020. Two of our Partners and our Senior Counsel have been named Northern California Super Lawyers for the last 17 consecutive years.

PERSONAL INJURY 
Dale Minami (Top 10, 2013-2018; Top 100, 2007-2020; Super Lawyers, 17 years) 
B. Mark Fong (Super Lawyers, 11 years) 
Seema Bhatt (Rising Stars, 4 years) 

IMMIGRATION AND NATIONALITY LAW 
Minette A. Kwok (Top 50 Women Northern California, 2014-2016; Super Lawyers, 17 years) 
Olivia Serene Lee (Rising Stars, 7 years) 
Suhi Koizumi (Super Lawyers, 2 years; Rising Star, 8 years) 

CONSUMER AND EMPLOYEE RIGHTS 
Sean Tamura-Sato (Rising Stars, 8 years) 
Lisa P. Mak (Rising Stars, 6 years) 

CORPORATE/NONPROFIT 
Donald K. Tamaki (Super Lawyers, 17 years) 

Super Lawyers is a rating service of outstanding lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is independent, and attorneys cannot purchase placements on the list.

Federal Law Now Protects against Workplace Discrimination Based on Sexual Orientation and Gender Identity

Federal Law Now Protects against Workplace Discrimination Based on Sexual Orientation and Gender Identity

On Monday, June 15, 2020, the U.S. Supreme Court, in a 6-3 decision in Bostock v. Clayton County, Georgia, ruled that an employer who fires a worker merely for being gay or transgender violates Title VII. 

Title VII is the federal civil rights statute that makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual… because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). 

Specifically, the Supreme Court stated that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Thus, because “[s]ex plays a necessary and undisguisable role in the decision,” the termination of such an employee is a violation against the Title VII protection against discrimination based on sex. 

The Court also affirmed that, as with any claim of discrimination based on sex under Title VII, an employer cannot escape liability by citing some other factor that contributed to the employment decision—if sex (and now, sexual orientation or gender identity) was one of the reasons for that decision, that violates Title VII.  The Court’s decision today extends workplace anti-discrimination protections to gay and transgender workers across the country. 

In California, protections against discrimination based on sexual orientation and gender identity are not new for most employees.  While this recent U.S. Supreme Court case decided that discrimination against homosexual and transgender individuals was discrimination based on sex, California’s Fair Housing and Employment Act (FEHA) had already explicitly stated that it is illegal for an employer to discriminate against a person based on, among other traits, sex, gender, gender identity, gender expression, and sexual orientation.  However, FEHA does not apply to federal employees in California.  With this recent Supreme Court decision, federal employees in California will now be protected from discrimination based on sexual orientation or gender identity under Title VII.

Other Questions?

For more information on workplace discrimination, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Photo by Alex Jackman via Unsplash.

Business Interruption Coverage During COVID-19 Pandemic

Business Interruption Coverage During COVID-19 Pandemic

Business Interruption Coverage Under All-Risk Policies

Minami Tamaki LLP’s Consumer and Employee Rights Group is investigating claims that insurance carriers are wrongfully denying business interruption insurance claims made by businesses coping with the coronavirus (COVID-19) pandemic.

Millions of businesses across the U.S. are struggling amid the economic crisis caused by coronavirus-related shutdowns. Many of these businesses have tendered claims under their business interruption coverage in their commercial property insurance policies in hopes of mitigating the losses they have experienced.

Unlike specified peril or named peril policies which only cover risks that are expressly identified in the policy, all-risk policies (also called “comprehensive” or “open peril” policies) cover everything except what is expressly excluded from the policy. Because traditional specified peril policies generally do not include viral or disease outbreaks, they will likely not provide coverage for businesses affected by the coronavirus pandemic. So, the question remains whether all-risk policies will.

Many insurance carriers, without conducting any investigation, have taken the position that claims related to COVID-19 are not covered by these all-risk policies. All-risk policies typically cover losses due to business interruption where a policyholder suffers “a direct physical loss of or damage to” the property covered under the policy. Additionally, some policies include what is called civil authority coverage which indemnifies policyholders for business interruption losses as a result of a government order that restricts access to the property. Insurance carriers have denied claims on grounds that policyholders have not suffered “a direct physical loss of or damage to” their property or that the government order did not restrict access as a direct result of “a physical loss or damage to” the property that is covered under the policy.

In early April, insurance provider Chubb Ltd. sent out a notice to policyholders on its website that “the presence of an infectious agent or communicable disease at a location where there is covered property generally will not mean that property has suffered ‘physical loss or damage’ under your policy.” Some insurance industry attorneys believe that there has been a concerted effort by insurers to dissuade the public from filing business interruption claims by sending out pre-claim notices such as Chubb’s April notice, as well as requiring property damage and denying claims based on lack of property damage.

Businesses have filed actions against their commercial property insurance carriers as their claims for losses potentially covered under their business interruption coverage have been denied. Chubb is facing a proposed class action lawsuit brought by New Jersey eatery, Benito Ristorante. Similarly, in San Francisco, Michelin-starred Thai restaurant Kin Khao has also filed suit against Oregon Mutual Insurance Company, alleging that Oregon Mutual Insurance Company is wrongfully refusing to provide business interruption coverage. As of the writing of this article, over 120 lawsuits have been filed in the past two months against insurance carriers for denial of claims for business interruption loss.

Many of these businesses claim that they are covered because government orders requiring them to cease operations have caused them to lose the use of their property. The lawsuits allege that the requirement to cease operations constitutes a physical loss of the insured property.

Contingent Business Interruption

Some policies may provide coverage for contingent business interruption losses. Contingent business interruption coverage insures against losses due to the suspension of operations of a contingent business, such as a supplier. Like the business interruption coverage, the contingent business interruption coverage requires a direct physical loss or property damage to the supplier that would have been covered if that direct physical loss or property damage was sustained by the policyholder. Again, because coverage for contingent business interruption requires a direct physical loss or damage to property, it is likely that insurance carriers will deny such claims unless there has been physical damage to the property of the contingent business.

Virus Exclusions

In 2006, the Insurance Services Offices adopted an endorsement amending coverage to exclude any losses due to virus or bacteria in response to the SARS outbreak. Policyholders who have continued to renew their policies with the same insurer over the years may discover that their policies contain virus exclusions as their claims are rejected on that basis.

However, rejection of claims based on the virus exclusion may be invalidated if the policyholder did not get notice that their coverage under the policy was changing. Under California Insurance Code section 676.2, subdivision(c)(1), if the policy has been in effect for more than 60 days or is up for renewal, a change in the conditions of coverage is not effective unless a written notice is given to the named insured at least 30 days before the effective date of the change. Thus, the insurance carrier’s failure to disclose the elimination of coverage will invalidate the exclusion.

Pre-claim notices

Any coverage analysis will depend on the specific language of the insurance contract. Some insurance carriers are sending out pre-claim notices about potential coverage for COVID-19 which includes what may be applicable portions of the policyholder’s insurance coverage provisions. These pre-claim notices are not denials of claims and are not actual determinations of coverage. As most insurers require prompt notice of any claims, policyholders must still make a claim if they would like to preserve their right to have their losses indemnified.

Other Questions?

For more information on insurance coverage for business interruption claims, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Federal Employees Have Lower Burden for Age Discrimination

Federal Employees Have Lower Burden for Age Discrimination

This week, in Babb v. Wilkie, the U.S. Supreme Court held in an 8-1 decision (Justice Thomas dissenting) that federal employees can sue for age discrimination if any part of a personnel action was tainted by age bias, even if age was not the “but-for” cause of the personnel decision. This is a lower burden for federal employees compared to the standard applied to private-sector employees bringing age discrimination claims. 

The Age Discrimination in Employment Act (“ADEA”) is a federal law that protects workers 40 years of age or older from age-based discrimination from as early as the application process all the way through termination. Thus, an employer cannot fire, refuse to hire, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of their age. 

The ADEA is applicable to employers with 20 or more employees, including state and local governments. The ADEA contains a separate provision applicable to federal employees, section 633a(a), and the different treatment of that provision was highlighted in the Supreme Court’s decision in Babb. 

In Babb v. Wilkie, Noris Babb was an employee with the U.S. Department of Veteran Affairs.  She claimed that she had been subjected to personnel actions that involved age discrimination. The ADEA provision at issue states in relevant part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 

Generally, cases under the ADEA require the employee to show that age is the “but-for” cause of an employment decision; that is, the employer is liable only if the employment decision would not have occurred but for the employee’s age. 

In Babb, the federal employer argued that even if age played a part in the employment decision, the federal employer cannot be liable unless the employee or applicant can show that the decision would have been favorable to them if age had not been taken into account. The Supreme Court decided that while age must be the but-for cause of the discrimination, age did not necessarily have to be the but-for cause of the personnel action itself.

To illustrate, the Court gave this example. There are two employees up for promotion – 35-year-old Employee A and 55-year-old Employee B. The employer’s promotion policy gives numerical scores based on non-discriminatory factors. Then, candidates over 40 years of age are docked 5 points—a discriminatory factor. Employee A’s score, based on non-discriminatory factors, is 90, and Employee B’s score is 85. Then, Employee B is docked 5 points because of his age and ends up with a final score of 80. Employee A is promoted based on the final scores.  

Even if Employee B had not been docked the 5 points, Employee A would have been promoted anyway. Thus, the discriminatory practice of docking 5 points was not the but-for reason that Employee B was not promoted.  

However, as the Court points out, the promotion decision was not made “free from any discrimination based on age” because the discriminatory practice was there. For federal employees, this would still be a violation of the ADEA. Thus, even if Employee B would not have been promoted anyway, the federal employer would still be liable for age discrimination. In these kinds of situations, employees may not be entitled to damages, such as back pay or compensatory damages, but employees may be entitled to forward-looking relief, such as an order precluding the employer from using the discriminatory process in future personnel actions. 

Justice Alito explained that holding the federal government to a higher standard than private employers, state and local governments was not unusual. When the ADEA was first enacted in 1967, the prohibition against age discrimination applied only to private employers. Congress, in 1974, then expanded the scope of the ADEA to include federal, state, and local governments. For state and local governments, Congress simply added them to the definition of “employer” in the ADEA’s private-sector provision. For the federal government, Congress deliberately chose to enact a separate provision, with the specific directive that personnel actions taken by the federal government “shall be made free from any discrimination based on age.”

In summary, federal employers may be liable for discrimination if age was considered in any part of a personnel action, even if age discrimination was not the but-for cause of the final personnel action. 

Other Questions?

For more information on age discrimination in the workplace, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice or tax advice.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Readers should contact a tax professional for advice on taxation issues.  Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

(Photo by Sebastian Pichler on Unsplash)

Minami Tamaki Investigating Airlines’ Failure to Provide Refunds for Flights Canceled Due To Coronavirus (COVID-19)

Minami Tamaki Investigating Airlines’ Failure to Provide Refunds for Flights Canceled Due To Coronavirus (COVID-19)

Minami Tamaki LLP is investigating claims that U.S. and foreign airlines have refused to provide required refunds after canceling or significantly delaying flights because of the coronavirus (COVID-19) public health emergency. 

On April 3, 2020, the U.S. Department of Transportation (“DOT”) issued an Enforcement Notice stating that airlines remain obligated to provide prompt refunds to passengers for flights to, within, or from the United States when the carrier cancels a flight or makes a “significant schedule change” and the passenger chooses not to accept the alternative offered by the airline.  

The Enforcement Notice noted that the DOT is receiving an increasing number of complaints from consumers alleging that airlines cancelled or significantly delayed flights and then failed to provide refunds.  Consumers have reported that airlines have instead offered travel vouchers or credits for future travel. However, as the DOT noted, vouchers and credits may not be readily usable given the dramatic reduction in travel schedules due to COVID-19. 

Airlines have a longstanding obligation to provide refunds to ticketed passengers upon canceling a flight or making significant changes to a flight schedule when a passenger declines alternatives such as a voucher.  See Enhancing Airline Passenger Protections, 76 Fed. Reg. 23110-01 at 23129. 

An airline’s obligation to provide a refund arises when the cancellation is through no fault of the passenger, and does not cease because a flight disruption is outside of the carrier’s control.  See U.S. Dept. of Transportation, Aviation Consumer Protection, Refunds.

The Enforcement Notice states that it continues to view any policy or contract of carriage provision that purports to deny refunds to passengers as a violation that could subject an airline to an enforcement action.  

The DOT stated that, in light of the ongoing COVID-19 pandemic, its Aviation Enforcement Office will provide airlines an opportunity to become compliant before pursuing an enforcement action provided that the airlines 1) contact passengers provided credit or vouchers to notify them that they have the option of a refund; 2) update their refund policies and contract of carriage provisions to make clear that they provide refunds; and 3) review with their personnel the circumstances under which refunds should be made. 

If you were denied a refund after cancellation or a significant schedule change of air travel due to COVID-19 and would like more information, you may contact us online or call us at 415-788-9000.

Coronavirus Stimulus Package Provides Relief for Employees and Small Businesses

Coronavirus Stimulus Package Provides Relief for Employees and Small Businesses

The Coronavirus Aid, Relief and Economic Security (CARES) Act signed into law on Friday, March 27, will provide much-needed assistance to a country struggling with the impact of the coronavirus (COVID-19) pandemic. The $2 trillion economic relief plan has numerous provisions aimed at helping U.S. workers, small businesses, and industries.  The following information summarizes some key provisions of the bill; employees and employers should contact their attorney or one of our employment attorneys at Minami Tamaki for specific legal advice.  

Stimulus Checks

Individuals who earn $75,000 in adjusted gross income or less will receive direct payments of $1,200.  Married couples earning up to $150,000 will receive $2,400.  For every qualifying child age 16 or younger, the payment will be an additional $500.  

Stimulus payments phase out for earners above the income thresholds until stopping altogether for single people earning $99,000 or married people with no children earning $198,000.  

Eligibility for stimulus payments is based on 2019 income.  For individuals who have not prepared a 2019 tax return yet, their 2018 income amounts will apply. 

Unemployment Benefits

The stimulus package will increase the amount of unemployment benefits that many individuals can receive, extend the length of time that benefits can be received, and include many workers not previously eligible for unemployment insurance. 

The exact amount of unemployment benefits that workers will receive differs by state, but benefits will be expanded in an attempt to replace workers’ paychecks.  Individuals will be able to receive an extra $600 per week for up to four months on top of state unemployment benefits.  

The stimulus package also provides eligible workers with an additional 13 weeks of unemployment insurance on top of what they would normally be able to receive in their state.  The maximum benefit period in California is typically 26 weeks, so Californians will now be able to receive up to 39 weeks of unemployment benefits. 

Self-employed workers, independent contractors, freelancers and gig economy workers who have lost work due to the coronavirus pandemic are eligible for unemployment insurance under the CARES Act.  These individuals who do not regularly qualify for unemployment insurance will be able to receive 50% of the average unemployment benefit in their state, plus the $600 per week payments. 

Small Business Paycheck Protection Program

Businesses with fewer than 500 employees (including non-profit organizations) will have access to loans backed by the Small Business Administration.  These loans are eligible for forgiveness if used for covering payroll, rent, utilities, and other qualifying expenses in order to maintain operations during the coronavirus pandemic.  Accrued interest is required to be repaid. 

Small businesses can receive loans of up to $10 million with interest rates capped at 4%.  The bill provides for an expedited origination process with local lenders determining eligibility and credit worthiness. 

Small Business Economic Injury Disaster Loans

The CARES Act provides additional funding to expand the Small Business Administration’s Disaster Loan Program.  Businesses with fewer than 500 employees may apply for loans of up to $2 million to cover expenditures necessary to alleviate economic injury caused by the coronavirus pandemic. 

Disaster Loan Program applicants can also seek an emergency grant of $10,000.  Notably, businesses are not required to repay the $10,000 even if their underlying application is later denied.  

More information on the Disaster Loan Program is available here.

Tax Credits

The CARES Act also includes provisions regarding tax credits to provide relief to employers whose operations have been impacted by the coronavirus pandemic, and to incentivize employers to keep workers on staff.  Employers should consult with their tax advisors regarding these provisions of the bill.

Other Questions?

For more information on employee benefits and business solutions related to the coronavirus, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice or tax advice.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Readers should contact a tax professional for advice on taxation issues.  Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.

Leave Protections and Wage Replacement Benefits For California Workers During COVID-19

Leave Protections and Wage Replacement Benefits For California Workers During COVID-19

As the novel coronavirus (COVID-19) continues to spread, California Governor Gavin Newsom recently issued a state-wide shelter-in-place order directing all individuals to stay home, except to provide or obtain essential services or to perform other authorized necessary activities.  Due to that order, many businesses that do not provide “essential” services are suspending operations, which is impacting jobs and workers.  Public health departments are also urging for people to practice “social distancing” and for high-risk populations (those 65 years old or older, or with certain health conditions or weakened immune systems) to stay home and take extra precautions.  In these uncertain times, employees may be considering their options and rights if they are unable to work.

The following information provides an overview of leaves that may be available for workers who need to care for themselves or their families due to COVID-19, and possible wage replacement benefits for workers who are completely or partially out of work during this time.  This information is only meant to be a summary, and workers should contact an attorney to obtain more details or advice on specific legal matters.

Sick Leave and Family Leave

The federal Families First Coronavirus Response Act (“Families First Act”), recently passed by Congress and effective starting April 2, 2020, covers employers with up to 500 employees and provides emergency paid sick leave and family leave.  Under the Act, an employee is entitled to up to two weeks of paid sick leave if the employee: (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) is experiencing symptoms of COVID-19 and seeking a medical diagnosis; (4) is caring for an individual who is subject to a quarantine order or who has been advised to self-quarantine; (5) is caring for a child, if the child’s school or place of care is closed or unavailable due to COVID-19 precautions; or (6) is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.  If the employee is taking emergency paid sick leave to care for oneself, they will be paid their full regular rate of pay, up to $511 per day and $5,110 in total.  If the employee is taking sick leave to care for others or for other qualifying reasons, they will be paid two-thirds of their regular rate of pay, up to $200 per day and $2,000 in total. 

Under the Act, employees can also take up to twelve weeks of paid family leave, if they have worked for the employer for at least 30 calendar days, and if they are unable to work or telework due to a need to care for their child, if the child’s school or place of care is closed or unavailable due to a public health emergency.  When an employee takes this family leave, the first 10 days may be unpaid.  The employee may elect to substitute any accrued vacation leave or personal leave, medical or sick leave for unpaid leave during the initial 10 days.  After 10 days, the employee will be paid two-thirds of their regular rate of pay, up to $200 per day and $10,000 in total.

Besides the Families First Act, there are other state and federal laws that may provide leave protections to employees.  The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) require employers to provide up to twelve weeks of unpaid, job-protected leave each year for a serious health condition of the employee or their family member.  While such leave is unpaid, the employer must continue maintaining the employee’s coverage under group health benefit plans.  The FMLA and CFRA covers employers with at least 50 employees within a 75-mile radius, and employees who have worked for at least one year total for the employer and at least 1,250 hours in the last calendar year before the start of their leave. Because the Families First Act actually amends the FMLA to include COVID-19 as an additional qualifying reason for leave and provides this emergency paid sick leave benefit, the Families First Act leave does not provide an additional twelve weeks of leave on top of the twelve weeks under the FMLA.

Wage Replacement

Benefits programs administered by the California Employment Development Department (EDD) may be available to help employees with wage replacement during the coronavirus pandemic. 

If an employee is unable to work due to having or being exposed to COVID-19, and they have supporting medical documentation, they can file a State Disability Insurance (SDI) claim.  SDI provides short-term benefits payments to workers who have a full or partial loss of wages due to a non-work-related illness or injury.  The benefit amounts cover approximately 60 to 70 percent of an employee’s wages (depending on income), up to a maximum of $1,300 per week for up to 52 weeks.

Employees who are unable to work because they are caring for a sick or quarantined family member due to COVID-19 can file a claim for Paid Family Leave (PFL).  Again, supporting medical documentation is required.  PFL provides up to six weeks of benefits payments at the SDI rate to employees who have a full or partial loss of wages due to time off work to care for a seriously ill family member.  Starting July 1, 2020, PFL will provide up to eight weeks of benefits payments to eligible employees.

For employees who lose their jobs or have their hours reduced due to COVID-19, they may be able to file for Unemployment Insurance (UI).  Eligible workers can receive benefits of up to a maximum of $450 per week, for potentially at least 13 to 26 weeks depending on their claim’s maximum award and weekly benefits paid.  Employees who miss work due to their child’s school shutting down may be eligible for UI benefits, and those applications are being considered by the EDD on a case-by-case basis.

By the Governor’s executive order, the usual one-week waiting period for SDI and UI benefits has been waived, so eligible workers can receive their benefits faster.

Other Questions?

For more information on worker protections and rights during the COVID-19 situation and the shelter-in-place orders, please contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and do not constitute legal advice.  Employers and employees should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.  Any links contained in this article are only for the convenience of the reader, and do not constitute recommendations or endorsements of the contents of the third-party sites.

Coronavirus (COVID-19): What Employers Should Know

Coronavirus (COVID-19): What Employers Should Know

On March 19, 2020, California Governor Gavin Newsom ordered all individuals in the state to stay at home in order to slow the spread of coronavirus (COVID-19).  The order contains exceptions for essential needs, including work in critical infrastructure sectors. 

Governor Newsom’s California order comes on the heels of “shelter-in-place” orders issued by seven Bay Area counties – Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Santa Cruz – just days earlier.  

The California and Bay Area orders have led to many questions for employers in the state.  The following information summarizes employer obligations in light of the coronavirus pandemic.  Employers and employees should contact an attorney for further details and to obtain advice on specific legal matters. 

Can California employers have employees work remotely from home during government mandated shutdowns? 

Generally yes, but California employers should make sure to reimburse employees for all necessary business expenses incurred as a result of working remotely.  If working from home requires the use of equipment (such as computers or printers) that the employee does not already own, the employer must provide the equipment or reimburse the employee for the cost of the equipment.  Employers must also reimburse employees for internet and phone costs incurred for business purposes. 

California employers should also continue to ensure compliance with regular wage and hour requirements.  This includes, but is not limited to, meal periods, rest periods, and overtime requirements for non-exempt employees.  

If government mandated shutdowns cause financial hardship for an employer, can the employer reduce employee hours or change other terms of employment? 

Employment in California is presumed to be “at-will” unless the parties agree otherwise or an exception to at-will employment applies.  This means that either the employee or the employer may terminate employment with or without cause or prior notice.  An employer may also change other terms and conditions of employment, such as hours worked and compensation rates.  Employers must pay at least the applicable minimum wage for all hours worked. 

Employers planning a closure or major layoffs as a result of coronavirus can obtain help from the California EDD Rapid Response program.  Rapid Response teams may help avert potential layoffs and provide immediate on-site services to assist employees facing job losses. 

An employer reducing hours or shutting down operations due to coronavirus can encourage employees to file an unemployment insurance claim.  Unemployment insurance provides partial wage replacement to workers who lose their jobs or have their hours reduced through no fault of their own. 

Do employers have to provide paid leave to employees during the coronavirus pandemic? 

Under the federal Families First Coronavirus Response Act, employers with up to 499 employees must provide workers with two weeks of paid sick leave during the coronavirus pandemic.  After this two-week period, employees who have been employed for at least 30 days will be able to take up to 12 weeks of leave under the Family and Medical Leave Act to care for a child whose school or place of care has been closed.  After the first ten days, employees will be able to receive two-thirds of their usual pay, up to $200 per day and $10,000 in the aggregate.  The Act is scheduled to take effect on April 2, 2020.   

Employees may receive paid sick leave under the Families First Coronavirus Response Act if they are unable to work because 1) the employee is subject to a federal, state, or local quarantine or isolation due to coronavirus; 2) a health care provider has advised the employee to self-quarantine due to concerns related to coronavirus; 3) the employee is experiencing symptoms of coronavirus and seeking a medical diagnosis; 4) the employee is caring for an individual who is subject to quarantine or isolation due to coronavirus, or advised to self-quarantine due to coronavirus; 5) the employee is caring for the employee’s child whose school has been closed or place of care if unavailable due to coronavirus precautions, or 6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretaries of Treasury and Labor. 

Under the Act, employers will be able to seek reimbursement of paid leave amounts through a refundable tax credit.  Employers with fewer than 50 employees may also seek an exemption from the requirements of the Act. 

This is a brief summary of the Families First Coronavirus Response Act.  For full details of the Act, employers and employees should consult with an attorney. 

Are employers otherwise required to pay employees who cannot work during government mandated shutdowns? 

Generally, there is no legal obligation to pay employees if the employer’s business is shut down due to the coronavirus pandemic.  However, employers are required to provide paid leave to some employees in specific instances and should consult an attorney for specific advice regarding their legal obligations. 

Further, exempt employees must be paid their full weekly salary if they perform any work during the week. 

Employers may also generally permit non-exempt employees to take accrued vacation or paid time off during government mandated shutdowns. 

What notice are California employers required to provide if they must shut down as a result of the coronavirus pandemic?

On March 17, 2020, Governor Newsom signed Executive Order N-31-20, which temporarily suspends Cal-WARN advance notice requirements for mass layoffs, relocation, or termination caused by coronavirus related business circumstances that were not reasonably foreseeable as of the time that notice would have been required.  

The Cal-WARN Act normally requires employers to provide 60 days advance notice of mass layoffs, relocation, or termination to all affected employees.  Under the Order, an employer must only give as much notice as is practicable and provide a brief statement of the basis for reducing the notice period.  

It should be noted that the federal WARN Act, which sets out similar requirements for a 60-daynotice in the case of a closure or layoff, already contains exceptions for closures or layoffs resulting from business circumstances that were not reasonably foreseeable.  

Other Questions?

For more information on employer obligations related to the coronavirus and government mandated shutdowns, contact us online or call us at 415-788-9000.

*The contents of this article are for informational purposes only and does not constitute legal advice.  Employers and employees should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Information on this website may not constitute the most up-to-date legal or other information.  Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.  Any links contained in this article are only for the convenience of the reader, and do not constitute recommendations or endorsements of the contents of the third-party sites.

Minami Tamaki Investigating Evenflo for Dangerous Child Car Seats

Minami Tamaki Investigating Evenflo for Dangerous Child Car Seats

Minami Tamaki is investigating allegations that Evenflo engaged in fraud and deceptive marketing in the sale of its Big Kid Booster seats. 

According to a February 2020 investigation by ProPublica, Evenflo advertised its Big Kid booster seats as “side impact tested” without revealing that its own tests showed that a child in its seats would likely be seriously injured in a side-impact car crash. 

According to the Evenflo test videos obtained by ProPublica, the child-sized crash test dummies in Big Kid booster seats were thrown out of their shoulder belts when subjected to a simulated “T-bone” collision. Evenflo’s engineer admitted that real children thrown in the same manner could suffer catastrophic injury to their head, neck, and spine, if not death. 

The ProPublica investigation states that Evenflo has known since at least 2008 that its Big Kid Booster car seats were potentially unsafe for children under forty pounds and under four years of age.  Despite this knowledge, Evenflo marketed the Big Kid Booster car seats as safe for children as light as 30 pounds. 

Recent reports about the dangers of Big Kid Booster car seats are particularly concerning because Evenflo heavily advertised its safety standards, and parents have alleged that they made purchasing decisions based on these representations. 

If you purchased an Everflo Big Kid Booster car seat and would like more information about your legal rights, you may contact us online or call us at 415-788-9000 to set up a free consultation.