E-Blasts

Cal/OSHA Standard Boards to Draft and Adopt COVID-19 Emergency Regulation

By: The Saqui Law Group and Christina Anton

On September 17, 2020, the California Division of Occupational Safety and Health (“Cal/OSHA”) voted unanimously to pursue the drafting and adoption of a COVID-19 Emergency Regulation. The regulation will cover all industries not already covered by the Aerosol Transmissible Diseases (“ATD”) Standard. You may read the entire proposed decision here.

The proposed Emergency Regulation provided the following key takeaways:

 

  1. Cal/ OSHA must submit a proposed draft emergency regulation to the Standards Board “for consideration no later than the November 19th, 2020, Board meeting.”
  2. A detailed emergency regulation providing new COVID-19 workplace safety standards will likely be issued before the end of 2020.
  3. Cal/OSHA must convene an advisory committee after the emergency regulation goes into effect.
  4. The temporary standard will be in place until sometime after the pandemic subsides. The Standards Board has requested that Cal/OSHA convene a representative advisory committee to consider a permanent novel pathogen regulation for workers outside of the healthcare industry.

The main issue and concern for employers in response to the proposed Emergency Regulation is the lack of stakeholder input prior to the regulation taking effect. Due to the short amount of time Cal/OSHA has to draft a proposed regulation, stakeholders will unlikely be able to provide any input. The lack of input has left many concerned about the regulation’s effectiveness at protecting workers. As Cal/OSHA cannot always anticipate how a draft regulation’s text might apply to every workplace in California, the regulation may contain omissions, errors or fail to address the realities of the broad range of workplaces in California.

COUNSEL TO MANAGEMENT:

While the COVID-19 Emergency Regulation is not yet in effect, we will keep you updated when Cal/OSHA issues their proposed draft and decision. In the meantime, it is critical that employers are being compliant with all other COVID-19 regulations currently in effect. If you have any questions regarding COVID-19 compliance, contact the experts at The Saqui Law Group, a division of Dowling Aaron, Incorporated.

California Appeals Court Did Not Buy Employee’s Excuses of Not Reading the Company Handbook
By: The Saqui Law Group and Jorge Lopez Espindola

Failure to read the company handbook, containing an arbitration agreement, is not an excuse to ignore the arbitration agreement. In a decision favorable to employers, a California Appeals Court recently reaffirmed the longstanding rule that every person has a duty to read contracts, forms, and anything else they sign. In Conyer v. Hula Media Services. LLC, the Court also held that an arbitration agreement in an employee handbook was enforceable even though it contained certain unenforceable terms, because those terms could be severed from the rest of the agreement. 

When the plaintiff, a senior engineer, was hired by the defendant, Hula Media, he received a copy of the company handbook. He signed a “receipt and acknowledgment” of that handbook. That version of the handbook did not contain an arbitration agreement. However, a few months later, the company updated its handbook and distributed new versions to everyone, which included an arbitration clause. The plaintiff signed a second “receipt and acknowledgment” that he received the company handbook. The plaintiff then brought a sexual harassment suit against the company and the company attempted to force arbitration. The trial court denied arbitration, finding that the arbitration agreement was unenforceable because it was reasonable for the plaintiff to assume the distribution of the company handbook was routine and that there was no particular reason for the plaintiff to re-read the company handbook.

The Appeals court disagreed, holding that the plaintiff had a duty to read the company handbook after signing the second receipt and acknowledgment. The Appellate Court also noted that the employer had no duty to point out an arbitration clause in an agreement. The Court also explained that even though the arbitration agreement contained certain language that was unenforceable, it did not invalidate the entire agreement because the agreement was drafted to allow for such language to be taken out, leaving the rest of the agreement intact and enforceable.

COUNSEL TO MANAGEMENT:

Arbitration agreements remain a viable and valuable tool for employers to manage the risk and cost of litigation. This case is a good reminder that proper drafting and implementation of arbitration agreements is key to ensure those agreements are enforceable when challenged by plaintiffs. If you have any questions about employment arbitration agreements, contact The Saqui Law Group, a division of Dowling Aaron Incorporated.

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