Good morning, campers, and happy Monday! Welcome to my latest edition of my Monday Morning Briefing.   

LADPH Tweaks its COVID-19 Health Orders – Again

I know not all of you are here in glorious Southern California, but it’s a beautiful day in Los Angeles today, and we are just in time for another update from our friends at the Los Angeles Department of Public Health.  Last week, they issued what is now revised Health Officer Order #5 since the Omicron wave, and indeed, they broke this one down into two – one for Isolation and one for Quarantine.   Actually, these HOO are not much of a change; they really are more of a clarification, hence the need for separate orders for “Isolation” (when someone actually has COVID) and “Quarantine” (when someone is exposed to COVID).  They also issued this very handy Return to Work table, all of which I am attaching for you.  Unless you nerd out to some of these Health Orders (like some in my department whose names I will not mention here), I do not recommend that you necessarily study them now.  But do refer to them if and when you have an issue within your workplace.   And be sure to contact us if you have any questions interpreting these Orders; we know that you all don’t spend time reading them like we have needed during these last few years.

Still Waiting for California COVID Pay to Make its Return

Typical California, they really like their buzz.  They announced that California COVID pay is coming back.   But that was ten days ago now, and all we know is it will be retroactive to January 1, 2022.  We still don’t know when all this becomes “official.”  We do have a “draft” of the amended legislation.  Presumably, it goes into effect ten days after they give us the green light.  So keep sitting tight, and read up in the meantime. 

SCOTUS Set Oral Argument in Viking River Cruises, Inc v Moriana

Last week, the United States Supreme Court announced that its March argument calendar will include the Viking River Cruises case, set for March 30, 2022.   To remind you all, the Viking River Cruises case will be taking another look at the eight year old California Supreme Court Iskanian decision and in particular re-examining whether Private Attorney General Act cases, better known as PAGA cases, can be exempted from class action waivers.   Since the Iskanian decision, SCOTUS has issued the 2018 decision in Epic Systems v Lewis, giving the Federal Arbitration Act extremely broad pre-emption powers and sanctioning the ability of employers to require arbitration agreements and class action waivers from their employees.  Up until now, the California decision and the rule of law denounced in Epic Systems had not truly gone head to head in front of the US Supreme Court.   It seems that we California employers may finally find out this year if SCOTUS will allow us to use class action waivers in PAGA cases as we have been in class action litigation. 

In the meantime, this is an excellent time to ensure that your employee handbooks include the most recent arbitration agreements, comprising the class action waiver that we prepare.  Our office has been extremely successful enforcing these agreements in the class action setting, despite threats from opposing counsel in case after case.  Arbitration is by no means a perfect forum, and it has become an expensive venue for employers, but I cannot stress enough how out of control these PAGA cases have become.   If arbitration and class action waivers can be used to help defeat PAGA cases, it will have been worth it just to fight this cause. 

Don’t Lower Your Standards; Raise Your Bar

I have had conversations with clients over the past several weeks, touching along the same theme.   The recurring issue – the compromises people (managers, in particular) want to make in order to (a) get people in the door, (b) keep people in the door, (c) keep people happy, (d) keep xyz from doing abc, you name it.   Basically, I get calls telling me that some manager has some employee refusing to do something because right now, your employees are calling the shots.  Everyone knows that it’s impossible to hire or retain right now, so your managers are coming forward and saying that your employees are making demands and the managers are afraid to say no.  And it’s everything from coming to work on time, to signing employee handbooks, taking breaks, punching in and out timely, speaking nicely to the boss, and the last one I heard on Friday – filling out an employment application.  Apparently, it is too much work to complete and sign the application, and applicants are simply “refusing to do it.” 

I understand as well as anyone that it is a tough market right now.   But easing up on your attendance rules is not how you attract or retain good employees.  Never give in on enforcing your policies, rules and standards.  The way to attract and retain the best employees is by being a better employer, treating employees well, offering them the best pay and benefits, and providing an environment where the best employees can thrive and feel respected.  Reward your employees who perform well and timely.  They will appreciate that you are actually holding accountable the ones who are not.  That word gets around.  If your employees have complaints, hear them out.  Employees want transparency and inclusion.   Also, work toward eliminating BIAS.  Bias is a buzz kill!  It’s the number one issue employees have with managers – bigger than pay issues.  Sometimes, your managers are coming to you with these sagas so they can look like the “good guys” and then they get to play favorites.  Make sure you don’t fall into that trap, too.   We will talk about manager training, my main mantra, another time.

I ran out of time to talk about the ADA – website cases, but they will still be here for another day.   In the meantime, if you have missed back issues of these Briefings, my talented Marketing Director Adreena has created a microsite for us with a link: https://mondaymorningbriefings.com/   And since I wouldn’t let her put a pic of me on this page like she wanted, she is going to have a revolving one on that site, if you are ever inclined. 

Hope my fellow Angelenos find some time to enjoy the weather this week – it really is why we tolerate these real estate prices, the insipid PAGA litigation and ridiculous traffic.  And stay safe.