New COVID Leave; NLRB Asks for Handbook Rules Reversal; Penteshin to ULA Board; Attorney Spotlight
Updated: May 25, 2022
March 24, 2022
CALIFORNIA 2022 COVID-19 SICK LEAVE EFFECTIVE
On February 7, 2022, the California State Legislature passed Senate Bill 114 (the “Bill”), which requires employers with more than 26 employees to provide up to 80 hours of paid leave for certain COVID-19 (the “virus”) related reasons. California workers who miss work because they, or their qualifying family members, contract the virus will be able to receive at least 40 hours of paid sick leave. Other qualifying reasons that entitle a worker to the first 40 hours of paid leave include but are not limited to: showing symptoms of the virus, vaccine appointments, caring for a family member that has contracted the virus, or caring for a child due to school closure. If the initial 40 hours are exhausted, employees are entitled to another 40 hours of leave only if they or a family member test positive for the virus. Additionally, employees may take time off if they are awaiting test results, and the employer must make a test available at no cost to the employee. The Bill is retroactive to January 1, 2022. Employers are required, upon request, to reimburse workers for qualifying leaves taken between January 1, 2022, and February 19, 2022. This includes reimbursing a different leave bank (e.g. PTO) in order to deduct from the 2022 Paid Sick Leave bank. Likewise, employers may receive credit for providing qualifying leave to an employee during January 1 to February 19th.
NLRB GENERAL COUNSEL ASKS BOARD TO REVERSE TRUMP-ERA TEST FOR HANDBOOK RULES
On March 7, 2022, the General Counsel submitted its brief in Stericycle, Inc., Case No. 04-CA-137660. The GC’s office requested a return to the standards set forth in Heritage Village-Livonia (facially neutral work rules) and Banner Estrella Medical Center (investigative-confidentiality rules). The standards articulated in these cases were replaced in 2017 and 2019 by Boeing Co., and Apogee Retail LLC, respectively. T The Lutheran Heritage standard generally prohibited the maintenance of employers rules if “employees would reasonably construe the language to prohibit Section 7 activity.” Banner Estrella Medical Center held that employers could only require employees to keep workplace investigations confidential when legitimate and substantial justifications outweigh employees’ Section 7 rights for the particular investigation. The General Counsel also asked the Board to “formulate a model prophylactic statement of rights” that would detail employee rights and explain that no rule should be interpreted as restricting those rights. Employers could include this statement in handbooks at their option “to mitigate the potential coercive impact of workplaces rules on the exercise of Section 7 rights.”
FIRM UPDATE: PENTESHIN APPOINTED TO ULA BOARD OF DIRECTORS
The AFL-CIO’s Union Lawyer Alliance (“ULA”) Board of Directors added SSDS Partner Kirill Penteshin to its Board in February. Other new members include Rochelle Skolnick, American Federation of Musicians, New York, NY; and Kent Hirozawa, Gladstein, Reif & Meginniss, New York, NY. Penteshin joined SSDS in 2019.
IN CASE YOU MISSED IT: CAL/OSHA’S EMERGENCY TEMPORARY STANDARDS (“ETS”)
The latest ETS is in effect through May 6, 2022.
As of January 14, 2022, employers must provide testing to fully vaccinated workers exposed to a close contact at work.
As of January 19, California Department of Public Health’s new requirements for isolation or quarantine override any previously established by the ETS.
The definition of “COVID-19 test” now includes specific instructions for workers using self-administered tests with self-read results. For the test to meet the qualifications for returning to work after five-days, the employer or a telehealth professional must observe the testing.
LAWYER SPOTLIGHT: MEET AMY CU
This month, we asked SSDS partner, Amy Cu, a few questions about her practice, the pandemic, and motherhood.
Amy represents public and private sector labor unions and their members in state and federal court, at arbitration hearings, and before administrative agencies. In her practice, she provides advice and consultation regarding all aspects of employment and labor relations. She also represents multi-employer and single employer pension and welfare benefit plans, counseling trust funds on statutory compliance, arbitrating trustee deadlocks, and litigating ERISA matters.
Margo Feinberg praised Amy, “Her attention to detail is rigorous and all-encompassing. Those skills, combined with her empathy and sense of humor, make her an all-star attorney.” Amy’s commitment to workplace dignity was developed, in part, through the socioeconomic hardships experienced by her immigrant parents, but also through her own journey as a working mother. “Parenthood has given me a greater appreciation of the multitude of responsibilities that parents juggle and has shown me in concrete ways why workplace benefits and protections are so essential. It has given me that extra fire in my belly to want to make things better for working families and for the future of our kids,” Cu said.
Among her many accomplishments, in 2018, Amy served as lead counsel in Associated Chino Teachers v. Chino Valley Unified School District (2018) 30 Cal.App.5th 530, a seminal case which helped to establish appellate court precedent regarding public sector employee rights under the California Public Records Act and vindicated the constitutional privacy rights of public sector employees against unwarranted invasions of their personal privacy.
Q: You were made a partner after the birth of your second child. Can you describe your experience as a working mother at SSDS?
SSDS never forced me to choose between having a family and having a career. To the contrary, they acknowledged that everyone has a different family situation and empowered me to determine what was best for me and my family. SSDS provided me the flexibility to work part-time so that I could spend time with my children during those critical early years without having to sacrifice my career. And they never made me feel that my future with the Firm would be stifled because of my desire to raise a family. I know from other Los Angeles lawyers that SSDS has a positive reputation for being a trailblazer in providing parental leave and support for working parents. As you mentioned, I was made a partner the year I had just come back from my second maternity leave—and I was still working part-time! The partnership’s decision to move forward with making me a partner during that time really impressed upon me how much SSDS values and proactively seeks to promote diversity in viewpoints and life experience. Having a family was not shunned or taboo, but rather an asset that could help bring insight into our profession and something to be celebrated.
Q: The last two years have been a struggle for most parents. What has been your experience?
The pandemic has affected families on so many different levels. Early in the pandemic, before vaccinations or many treatment options were available, my grandfather succumbed to COVID-19. He was a beloved father, grandfather, and great-grandfather, and his death had a profound impact on my entire family. While the loss of a loved one is always challenging, the pandemic made it especially difficult to gather, embrace, and appropriately mourn. My heart goes out to anyone who has lost a loved one during this time. As a parent, I am reminded that every person is important to someone; the COVID statistics don’t adequately capture the radiating effect of each and every lost life. Being a part of SSDS enabled me to heal because I had the opportunity to focus my energy on trying to help others, including our union clients and their essential worker members—such as heroic grocery workers, medical residents, and academic workers—through these precarious times.
Also, like most other families, we lost childcare for our two school children. Suddenly, our once separate lives converged and we were together 24/7—even our dog was losing sleep! Researching esoteric provisions of law and constructing cogent legal arguments while being surrounded by constant laughing, crying, and sibling bickering is not something that they teach in law school. But, it is nevertheless a feat that most lawyer parents managed to conquer during the pandemic. Once again, through the SSDS’s support, I was able to work a flexible schedule while maintaining partnership status so that I could be there for my family. It took a great burden off me – I’m proud to be a part of such an amazing Firm.
Q: Is there anything that you’re celebrating from the last two years?
Yes! In 2021 alone, I was able to provide legal assistance, including developing processes and procedures for unions to use electronic signatures for proof of support, which led to the recognition of three new bargaining units within the University of California. This included a unit of approximately 17,000 Graduate Student Researchers—the largest new union organized nationwide in 2021. As a union lawyer, it is hard to top participating in such a historic campaign. I am fortunate to support such talented and inspiring organizers. Working took on such a different meaning during the pandemic—going to work in itself could jeopardize the health and safety of one’s life and family. Yet, the pandemic truly highlighted the strength and resilience of working people to rise up together and take collective action to fight for better wages and working conditions. That’s definitely something to be celebrated.
On a personal level, I feel that the pandemic has helped me to embrace being a parent lawyer. Instead of compartmentalizing my lawyer life and my mother life and trying to keep them separate, it was actually quite liberating to acknowledge that my kids are an integral part of everything I do. They help define how I see the world and my practice. They have made me into a better lawyer. As I strive to be a good role model for them, they inspire me to do good and be my best self. Plus, I am always honing my conflict resolution skills and coming up with creative solutions! I am reminded daily how important it is for people of any age to feel heard and respected and to foster within them a sense that they have valuable contributions to make.
Amy has been named by Super Lawyers as a Rising Star, a recognition given to no more than 2.5 percent of attorneys in each state. Amy is also a recipient of the AFL-CIO’s Hiatt Conference Fellowship, which is given to attorneys of color and attorneys whose work involves broadening the labor movement. She regularly speaks at various conferences and training sessions for union members, union staff, and attorneys. You can reach Amy at email@example.com.