Author: Stephanie Hill

Fish and Game Commission Expected to Take Action on Recommendation in June

The California Department of Fish and Wildlife (CDFW) delivered its long-awaited Status Review and Recommendation on the western Joshua tree to California Fish and Game Commission on April 21, 2022, recommending against listing the species as threatened under the California Endangered Species Act (CESA).  The 150-page, peer-reviewed report states that “the scientific evidence that is currently possessed by the Department does not demonstrate that populations of the species are negatively trending in a way that would lead the Department to believe that the species is likely to be in serious danger of becoming extinct throughout all or a significant portion of its range in the foreseeable future.”  The Commission is expected to consider and take final action on the recommendation at its June 15-16, 2022, meeting.

In October 2019, the Center for Biological Diversity submitted a petition to the California Fish and Game Commission (CFGC) requesting that Western Joshua Tree be listed as a threatened species under CESA.  In September 2020, the Commission found sufficient information exists to indicate that listing may be warranted, and the western Joshua tree was designated as a candidate species while CDFW conducted its review of the status of the species as required by Fish and Game Code section 2074.6.  As a candidate species, the western Joshua tree has been given the same protections as if the species was formally listed as threatened or endangered since October 2020.

In the Status Review, the CDFW recommends that the Commission find that the recommended action to list WJT as a threatened species is not warranted.  Key findings included the following:

• The abundant and widespread nature of the western Joshua tree lowers threat of extinction.
• Uncertainty exists with respect to what the predicted effects of climate change will be on individual western Joshua trees, and its populations, distribution, abundance, and range.
• It is unlikely that the special protection and management efforts required by CESA would ameliorate the direct and indirect effects of climate change on the western Joshua tree.
• The current scientific evidence does not demonstrate that populations of the species are negatively trending in a way that would lead the CDFW to believe that the species is likely to be in serious danger of becoming extinct throughout all or a significant portion of its range in the foreseeable future.

The Commission formally accepted the Status Review and recommendation from CDFW on April 21, 2022.  The Status Review must be made available to the public for a 30-day public comment period prior to the Commission taking any action on the Petition.  The Commission is expected to make its final determination on the listing at the June 15-16, 2022, meeting.  Interested parties have the opportunity to submit written comments regarding the listing of the western Joshua tree in advance of the meeting and/or make public comments at the Commission meeting.

For more information about the western Joshua tree listing process or CESA, please contact Shaye Diveley at sdiveley@meyersnave.com

As we have seen in just the past few weeks of the new year, laws are rapidly changing for employers. Following our Employment Law Update webinars provided to Private Sector and Non-Profit Employers, and Public Entity Employers, our Labor & Employment Team has provided an extensive 2022 Employment Law Update detailing new and evolving laws for all types of employers.

The 2022 Employment Law Update covers:

• COVID-19 Health and Safety
• Release of Peace Officer Records
• Arbitration Agreements
• Equity in the Workplace
• Compensation and Wage & Hour
• Leaves, Benefits, and Accommodations

If you have any questions, please contact our attorneys.

Click here to download the 2022 Employment Law Update.

On January 13, 2022, the Supreme Court of the United States (“SCOTUS”) issued its decision staying the enforcement of OSHA’s rule requiring either vaccination or masking and testing for workplaces with over 100 employees (see the decision here).  The Court found that the Petitioners, a combination of Republican Governors, businesses and religious institutions, were likely to succeed on the merits of their claim that OSHA lacked the authority to impose these workplace requirements. The Court reasoned that the statutory framework governing OSHA allowed it to set workplace safety standards but did not permit it to regulate the public health more globally which it found falls outside OSHA’s sphere of expertise. The Court compared COVID-19 risks to the universal risks from crime or pollution which the Court said were general risks rather than workplace risks.

As expected based on oral argument, Justices Breyer, Sotomayor and Kagan penned a vigorous dissent.  They noted that COVID-19 is a menace in workspaces where there is person-to-person contact and that OSHA has the authority to address that threat.  The six justices in the majority, all agreed that OSHA’s vaccinate or mask and test requirement exceeded its authority and found that the requirement was an indiscriminate approach that failed to take into account the crucial distinction between occupational risks and risks more generally.  The case will now proceed before the Sixth Circuit for review on the merits with OSHA’s regulation being stayed by SCOTUS pending that disposition.  The Court’s ruling staying OSHA’s vaccine requirement does not invalidate vaccine requirements put in place by private employers, municipalities or states.  Instead, the ruling is based on the limited grounds that OSHA exceeded its statutory authority and this does not impact the validity of private, local or state imposed vaccine mandates.

The Court did note that OSHA could impose COVID-19 specific workplace requirements where the risks posed by the virus may be increased, giving the example of a workplace where researchers work with the virus. In line with this reasoning, in another ruling issued on January 13th, the Court found by a 5-4 vote that a federal rule from the Department of Health and Human Services requiring the vaccination of healthcare employees at facilities receiving Medicaid and Medicare funds was likely valid. Thus, this federal vaccine mandate remains in effect (see the decision here). The Court explained that this targeted vaccine mandate fit neatly within the statutory language granting authority to the Secretary of Health and Human Services as addressing infections at these facilities is what he does.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) requiring vaccinations for companies with over 100 employees or in the alternative requiring masking and testing. The ETS was immediately challenged in circuit courts across the nation by a mix of Republican Governors, businesses and religious institutions and then consolidated in the Sixth Circuit after a multi-district lottery. On December 15, 2021, the Sixth Circuit dissolved a stay of the ETS. See In re MCP No. 165, Occupational Safety & Health Admin., Interim Final Rule: COVID-19 Vaccination & Testing, No. 21-7000, et al. 2021 WL 5914024 (6th Cir. Dec. 15, 2021). The Petitioners immediately sought an emergency stay of the Sixth Circuit’s decision to the United States Supreme Court.

SCOTUS heard oral argument earlier today in this case and its ruling on the issue is expected to be issued before Monday, January 10, 2022, the date OSHA has set to begin enforcement of the masking requirement (followed by a February 9 start date to enforce the testing requirement). We provide this initial e-alert for those interested in the reasoning of the Sixth Circuit along with an overview of the oral argument held before SCOTUS while awaiting the final ruling.

Sixth Circuit December 15, 2021 Ruling Lifting Stay of OSHA COVID-19 ETS
The Sixth Circuit found that OSHA’s ETS aimed at reducing harm from the COVID-19 virus falls squarely within the scope of OSHA’s authority. The use of these tools in the current ETS was not a novel expansion of OSHA’s power, rather, it was the use of existing authority applied to a novel and dangerous worldwide pandemic. The Sixth Circuit also explained that OSHA is permitted to issue an ETS if it determines that employees are exposed to grave danger and where the standard is necessary to protect employees from such a danger.

The Sixth Circuit went on to find that OSHA was likely to prevail on the issue of grave danger and on the issue of necessity. As to grave danger, the Sixth Circuit explained that this is a policy consideration that belongs in the first instance to OSHA and that it was not appropriate to second-guess the Agency’s determination, in light of the many peer-reviewed scientific studies, on which OSHA had relied. The Sixth Circuit noted that the 153-page preamble to the ETS laid out in great detail OSHA’s findings and that it was difficult to imagine what more OSHA could do or rely on to justify its findings that workers face a grave danger in the workplace. As to the necessity prong, the Court found that OSHA had compiled substantial evidence that the ETS is essential to reducing the danger posed by the pandemic and that the protections afforded by the ETS outweigh the economic consequences.

SCOTUS January 7, 2022 Oral Argument
A robust two-hour-plus oral argument was held today before SCOTUS regarding OSHA’s Covid-19 vaccination and masking/testing ETS. Justices Kagan, Breyer, and Sotomayor expressed their support for finding that any higher standard that may be required for the issuance of an ETS (as opposed to the normal rulemaking with a notice and comment period) is met here given the threat posed by the Covid-19 virus during this pandemic. Justice Breyer asked whether the Petitioners were really still asking for an immediate stay in the face of the 10-fold increase in Covid-19 cases and the current overwhelming of hospitals as the Omicron variant surges in our country. Chief Justice Roberts’ questioning indicated some support for the ETS but he also focused on whether the ETS could have, or should have, been done targeted to specific industries, and whether OSHA’s ETS was part of a larger plan to institute what amounts to a federal vaccination requirement.

Justices Thomas and Barrett questioned what defines “necessary” for an ETS and whether “necessary” is broader in the face of an emergency. Justices Alito, Gorsuch, and Kavanaugh questioned whether the ETS goes further than permissible imposing a vaccine that impacts workers beyond just their time at work or in exercising a power that goes beyond what OSHA has previously exercised. The extensive questioning by the Justices illustrates the full engagement of the Court on this issue that will impact millions of Americans.

The most likely options are for SCOTUS to: affirm the 6th Circuit’s ruling allowing the ETS to take effect; impose a stay on the ETS effective date; or impose a temporary administrative stay to allow more time for examination of the weighty legal issues. It is not clear how the votes will line up in this case but a ruling from the Court is expected by Monday, January 10, 2022.

California juries seem to regularly award gigantic verdicts to employees. On December 16, 2021, a jury awarded a former employee $155.4 million, including $150 million in punitive damages, in Rudnicki v. Farmers Insurance Exchange. This verdict comes on the heels of the $137 million verdict to a former contract employee in Diaz v. Tesla, Inc. in October 2021.

While these enormous awards are likely to be reduced on appeal, they are another reminder that arbitration agreements can be valuable tools for private employers. They can reduce the cost of litigation, help to resolve disputes more quickly, and keep employment disputes out of the hands of unpredictable juries. Class action waivers in arbitration agreements also help to reduce baseless wage and hour claims. Arbitration agreements help to even the playing field for employers.

As previously reported, AB51 (Labor Code section 432.6), enacted in October 2019, prohibits employers from requiring job applicants or current employees to enter into arbitration agreements as a condition of their employment. More than two years later, the fate of the law is still tied up in the courts. While the law has been stayed since December 2019, in September 2021, a Ninth Circuit Court of Appeals panel ruled, among other things, that the Federal Arbitration Act (“FAA”) did not preempt the AB 51’s prohibition on using mandatory arbitration agreements as a condition of employment. This ruling has been stayed while the Ninth Circuit decides whether to have a rehearing before the full panel of the Ninth Circuit.

In addition, there may be beneficial changes on the horizon regarding whether arbitration agreements can require arbitration of claims under the California Private Attorneys General Act (“PAGA”). Currently, arbitration agreements can include class-action waivers, but cannot prevent employees from bringing PAGA representative actions in court. On December 15, 2021, the United States Supreme Court agreed to consider hear Viking River Cruises, Inc. v. Moriana (No. 20-1573), and determine whether under the FAA, arbitration agreements may prevent employees from raising representative claims, including under PAGA.

Takeaway for Employers:  Employers should consider having arbitration agreements. If arbitration agreements are already being used, they should be regularly reviewed to ensure compliance with the latest legal developments.

Please contact a Meyers Nave attorney for help to navigate these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.