Creative Representation | Expert Litigation

Impacts and Analysis of NFIB v. Department of Labor, Occupational Safety and Health Administration

Today, on January 13, 2022, the U.S. Supreme Court issued a stay on the enforcement of OSHA’s Emergency Temporary Standards (“ETS”), which required employers with 100 or more employees to ensure each worker is fully vaccinated or tests for COVID-19 on at least a weekly basis. The majority opinion held that OSHA “likely exceeded [its] statutory authority” to effectuate this rule, especially since it was done through the rarely invoked emergency rulemaking process. As explained by the Court, the Secretary of Labor is empowered to act by its statutory powers conferred by Congress to set workplace safety standards. In the Court’s view, COVID-19 is not an “occupational hazard,” within the meaning of the statute, as it also spreads in homes, schools, and other gatherings. OSHA does not have the authority to enact broad public health measures to regulate the “hazards of daily life.”

NEW Covid-19 Paid Sick Leave Starting March 29, 2021

The State of California just enacted legislation that will go into effect on March 29, 2021 requiring all businesses with more than 25 employees to provide a new bank of up to 10 days (80 hours) of supplemental paid sick leave for any employee who is unable to work or telework.

New Pay Data Reporting Requirements for California Employers

California employers take note. Beginning this March, larger California employers must file an annual Pay Data Report that provides a breakdown by race, ethnicity, and sex for employees in different job categories and pay ranges.

COVID-19 Laws and Regulations Update For 2021 – by Kerry Duffy and Elizabeth Ferguson

As 2020 comes to a close, there has been a lot of uncertainty as to whether the Families First Coronavirus Response Act (“FFCRA”) would extend into 2021. Surprisingly, Congress has decided not to extend the FFCRA’s expiration date of December 31, 2020, which means that employers will not be required to provide emergency paid sick leave or emergency paid family medical leave after this date. However, on a voluntary basis, employers may choose to continue to provide FFCRA leave and receive employer tax credits for that leave through March 31, 2021. This change also impacts COVID-19 paid sick leave provided under California’s Supplemental Paid Sick Leave Act, whose duration aligns with the FFCRA timeframe, and thus is likewise set to expire as of December 31, 2020. However, other COVID-19 related laws and regulations continue to be in effect, and it is important for employers to be aware of their ongoing obligations in these areas.

It May Not Be A Franchise But It May Be A Seller Assisted Marketing Plan – by Darryl Hart

As noted in my previous blog post, to be considered a franchise in California an arrangement has: (a) the grant of the right to do business; (b) under a “marketing plan or system” prescribed in substantial part by the franchisor; (c) association with the franchisor’s name, mark, symbol, advertising or something else that identifies the franchisor and (d) a “franchise fee”, which is just about any payment to the franchisor. Some people try to avoid being a franchise by trying to have the grantee operate without one of the elements. Most don’t want to forego the fee so they think that they can allow the grantee to use less than the grantor’s complete business system and avoid the “marketing plan or system” element or permit use of the system and prohibit the use of any means of identifying the grantor. However, problems exist with both of these approaches.

Unintended Franchises Keep Popping Up – by Darryl Hart

A couple of nice young people I will call “clients”, since that is what they became, came in several weeks ago with an agreement prepared by another law firm that covered an arrangement granting to a third party the right to establish a business using a trademark belonging to the clients, along with the clients’ business format and featuring the clients’ products. The third party had to pay an initial fee and an ongoing payment for these rights as well as having to comply with quality controls specified by the clients, meeting the design requirements of the client and complying with the supply, sourcing and other requirements and limitations specified by the agreement.