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The H-1B Lottery in Times of Change

Posted: | Category: Immigration - Visas

By: The H-1B Lottery in Times of Change

In their few weeks in power, the incoming administration made many changes to immigration policy. One thing that has not changed is the H-1B lottery. On Wednesday, USCIS announced the dates for submission and processing for the Fiscal Year 2026 H-1B lottery entries. Employers use H-1B visas to employ foreign nationals in “specialty occupations” or positions that require a bachelor’s degree in a particular field. A typical user of the H-1 visa is an employer who wishes to retain the services of a foreign student employed using an F-1 Optional Practical Training Employment Authorization Document. However, given the new administration’s rapid changes to immigration policy, employers should consider this visa for a wider set of foreign national employees.

H-1B visas are very popular. Federal law limits the number of new H-1B visas to 85,000 per year. Every year, USCIS received hundreds of thousands of requests for H-1B visas. Because demand for H-1 visas far outstrips supply, USCIS distributes the opportunity to apply for these visas using a lottery via its online filing portal. Employers wishing to participate in the lottery must have an organizational account, and supply USCIS with a modicum of information regarding the proposed employee. This information includes name, date and place of birth, gender, passport information, and educational attainment. Additionally, employers must pay a $215.00 filing fee for every employee they wish to submit. If selected, employers may then submit an H-1B petition on behalf of their employee.

USCIS begins accepting entries into the FY 2026 lottery on Friday, March 7, 2025 and stops accepting entries on Monday, March 24, 2025. A few days after the submission period closes, USCIS will select and inform the selected employers via the USCIS filing portal. Employers will then have until June 30, 2025 to submit an I-129 Petition for Nonimmigrant Worker requesting H-1B visa status for the selected employee. If approved, the employee will then receive H-1B status or an H-1B visa on October 1, 2025.

The big change to the lottery this year is the filing fee. In years past, the lottery entry fee was $10.00. This year, it’s $215.00. It’s unclear how this filing fee change will affect demand. In years past, since the barrier to entry to the H-1B lottery was so low, individuals would use multiple shill employers to enter the lottery. The fee increase will likely curtail this behavior. Also, given the steep increase in the filing fees, employers would be well served to consult with an immigration attorney. Since selection in the lottery only grants an employer the right to file a petition for an H-1 visa and not the visa, employers should seek counsel on the approvability of their employee and job before entering the lottery.

Finally, the H-1 lottery may be an opportunity to retain employees who are affected by the new administration’s policy changes. Employers may want to consider the H-1B visa for employees that they presently employ using TPS, one of the prior administration’s parole programs, or DACA. On February 1st the new administration stripped Venezuelans of Temporary Protected Status and the legal right to work. Additional restrictions on the legal right to work are expected including recission of the Deferred Action for Childhood Arrivals regulations. Employers employing such individuals may be able to use the H-1B visa as a means to retain these employees. Moving an employee from one of these status to H-1B is not appropriate for all people, and even among the qualified, is not without risk. Consult with immigration counsel before choosing this course of action, and may the odds be ever in your favor.

Attorney General Issues Memo Stating that Illegal DEI and DEIA Programs in Private Sector Will Be Prosecuted

Posted: | Category: HR - Diversity

By: Attorney General Issues Memo Stating that Illegal DEI and DEIA Programs in Private Sector Will Be Prosecuted

The day after her nomination was confirmed last week, Attorney General Pam Bondi issued a memorandum to all Department of Justice employees on Wednesday, February 5th, stating that the USDOJ’s Civil Rights Division will begin investigating, prosecuting and penalizing illegal DEI and DEIA preferences, mandates, policies, programs and activities in the private sector (as well as in educational institutions that receive federal funds) that are based on race or gender.  

Bondi states that this action is necessary to enforce federal civil rights laws and to encourage the private sector to end illegal discrimination and preferences. She did not indicate what would be considered illegal and what would not, other than to state that educational, cultural, or historical observances such as Black History Month, International Holocaust Remembrance Day or similar events that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination are permissible.  

This memorandum creates many questions about what is permissible and what is not, and it remains unclear how prosecutions will be handled and what penalties will be assessed for violators. It also remains unclear where the courts will draw the line on what types of DEI and DEIA programs are permitted and what types are inconsistent with applicable federal discrimination laws. The federal courts may not draw the line at the same place the Trump Justice Department decides to draw it. That will be determined as matters are prosecuted in the coming months.   

It is difficult to determine exactly what actions an employer should take now in light of this memorandum, if any. It likely depends on risk tolerance, the specifics of any diversity efforts that the employer is currently engaged in or plans to engage in and other factors. However, at a minimum, employers who engage in any diversity efforts or initiatives should definitely discuss this memorandum with competent and experienced legal counsel as part of their consideration for reevaluation of any diversity efforts in light of the recent crackdown on DEI-related activities by the Executive Branch. 

CDF Webinar: Wage & Hour Minefield: Top Compliance Risks and Litigation Trends for 2025

Posted: | Category: Labor & Employment Law Events

Wage and hour claims—especially under California’s Private Attorneys General Act (PAGA) and class action lawsuits—continue to rise at an alarming rate. With more PAGA notices filed than ever before and wage and hour class actions making up the majority of employment-related litigation in the state, California employers face a growing risk of costly legal exposure. These claims often involve nuanced and evolving laws that can be difficult to navigate. Even well-intentioned businesses may face lawsuits over issues like off-the-clock work, meal and rest break violations, misclassification, and regular rate miscalculations. To help you navigate these risks, CDF Labor Law LLP is hosting a free webinar during which our Partners, Amy Williams and Desiree Ho, will break down the latest trends, case law developments, and compliance strategies. Agenda Highlights: The ongoing…

Evolving Cannabis Laws: 3 Common Mistakes Employers Should Avoid

Posted: | Category: HR - Drugs & Alcohol

CDF Partner Todd Wulffson recently contributed to an article on “Cannabis Challenges: What HR Needs to Know,” for HR Morning.

Excerpt:

Regardless of how companies or managers may feel about the topic, cannabis (including recreational and medical marijuana, and any product containing THC) is becoming ubiquitous – and is approaching a $30 billion per year industry.

Marijuana is “legal” for adults in 24 states and Washington, D.C. — and medical marijuana is legal in 38 states and D.C. This creates a dilemma for many employers who do not want employees operating under the influence of THC (the psychoactive drug in cannabis) any more than they want them at work drunk.

The confusion regarding marijuana legalization and the rapidly changing landscape of state-specific laws has created a minefield for employers.

Here is a summary of the major issues employers face, and how best to avoid stepping on one of those mines.

Mistake #1 – Believing marijuana is ‘legal’ and ignoring its potential impact in the workplace

Perhaps one of the most important things to understand, is that cannabis is not legal anywhere in the United States.

Marijuana is a Schedule I controlled substance under the federal Controlled Substances Act, right along with Heroin, LSD, Ecstasy, Crystal Meth and Peyote.

If you perform federal contracts, have employees working on federal property, or have employees subject to federal regulations (e.g. interstate truck drivers or airline pilots), you have no leeway with cannabis – your employees can never possess it or have any amount in their system.

Many states have passed laws stating that individuals will not be prosecuted under state law if they possess or grow a small amount of marijuana.

One of the biggest mistakes an employer can make, however, is believing these state laws reduce potential liability for the bad acts of a stoned employee. Cannabis impairs judgment, and this is exacerbated when someone is driving or operating machinery.

Numerous studies are showing how THC impairment is likely to significantly increase the risk of an accident on the job. Your workers’ comp carrier is going to expect you to be proactive in this regard, and to have policies to minimize the risk of cannabis-related accidents. It is also fairly well-established that people under the effects of THC are not violent, but they tend to sexually harass each other – a lot.

People have a tendency to lose their internal filters and inhibitions and may say or do things that can lead to discrimination or retaliation claims. The one thing that is universally true in any sort of litigation involving cannabis-fueled conduct, is that if the employer is perceived as having tolerated an employee to be high at work, even jurors that could make Cheech and Chong envious of their use of cannabis will have no problem hanging the employer out to dry for contributing to the accident or misconduct.

In some respects, cannabis is similar to alcohol – it is legal to buy alcohol, but few people will argue that allowing employees to be drunk on the job is a good idea.

The problem with cannabis, however, is that it is not as easy to detect when someone is under the influence. People can be getting impaired using a vape pen, drinking tea or eating a cookie. They may never smell like pot, or they may smell like it because they were at a concert the night before and wore the same jacket. It can be extremely difficult to tell if someone has THC in their system because they ingested cannabis at work, as opposed to at home, where it was “legal.”

Mistake #2 – Not keeping up with cannabis laws in your state

The reaction to cannabis’ federal status, and the risk of serious liability associated with cannabis intoxication at work, leads many employers to want to adopt a “zero tolerance” policy with regard to drug testing employees (i.e. any THC in one’s system is grounds for discharge).

Click here to read the full article.

NLRB has New Trump Appointed General Counsel

Posted: | Category: Labor Law - NLRB

By: NLRB has New Trump Appointed General Counsel

Yesterday, President Donald J. Trump appointed William B. Cowen as Acting General Counsel of the National Labor Relations Board.

Mr. Cowen began his career at the Board in 1979 after graduating law school. He served in various capacities throughout the Agency at both Headquarters and in the field, until he left to enter private practice in 1985. In private practice, he was an attorney and principal of Institutional Labor Advisors, LLC which he founded in 1997. He was also founding member of Cowen and Associates in McLean, VA, which he established in 1996. Prior to this, Mr. Cowen was a partner with Coleman, Coxson, Penello, Fogleman & Cowen, P.C. from 1992 to 1996 and served as an attorney with Thompson and Hutson from 1985 to 1992.

Mr. Cowen was appointed by President George W. Bush to serve as a Board Member from January 22, 2002 to November 22, 2002. He then acted as Executive Assistant (Chief of Staff) to NLRB Chairman Robert J. Battista. From 2006 through 2016, Mr. Cowen has served as the Board’s Solicitor. In 2016 Cowen moved from the DMV to Los Angeles and from 2016 through yesterday he served as Regional Director for the NLRB’s Region 21 Office in Los Angeles.    

Mr. Cowen holds a B.A. degree in Mathematics from Case Western Reserve University in Cleveland, OH, graduating in 1976, and he received a Masters of Theological Studies degree from Wesley Theological Seminary in 2005. Mr. Cowen received his J.D. degree from Cleveland-Marshall College of Law, Cleveland State University, in 1979. 

At this point, the appointment is for an interim position. It remains unclear whether President Trump will attempt to have Cowen approved by the Senate for the General Counsel position, which would eliminate the interim nature of the appointment, or whether Cowen is just a placeholder until somebody else can be nominated and confirmed.  

In any case, the NLRB remains one member short of a quorum, so unless a new member is appointed and confirmed, or former member Wilcox is able to obtain a court order rescinding Trump’s decision to terminate her, the Board has little power to do much beyond the decisions it makes at the region level.  

Stay tuned because activity at the Board, just like many areas of the federal government these days, is changing regularly.  We will continue to monitor and report on it here at CalLaborLaw.com.  

COVID-19 Prevention Regulations Expired Effective Yesterday, With The Exception Of Recordkeeping Requirement 

Posted: | Category: HR - COVID, Coronavirus

By: COVID-19 Prevention Regulations Expired Effective Yesterday, With The Exception Of Recordkeeping Requirement 

As of February 3, 2025, most of the Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations have formally come to an end, giving employers flexibility in how they approach COVID-19 in the workplace. However, subsection 3205(j) of the regulations remains in effect, which means that employers must continue to comply with the reporting and recordkeeping requirements.   

Record-Keeping

The non-emergency rule that employers must notify employees who have had a close contact officially sunset yesterday. However, the requirement that employers track and retain COVID-19 case records remains in effect through February 3, 2026. Such records must include the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive COVID-19 test and/or diagnosis. Employers must retain these records for at least 2 years. The provision further requires that the information on COVID-19 cases be provided to the local health department with jurisdiction over the specific workplace, the California Department of Public Health, and Cal/OSHA, immediately upon request and when required by law. In sum, employers should continue to log COVID-19 case details and continue to maintain accurate records to ensure compliance with their obligations under subsection 3205(j). 

Even though most of the Cal/OSHA’s COVID-19 regulations’ mandates have sunset, employers should continue to provide a safe workplace and maintain effective Injury and Illness Prevention Plans. CDF encourages employers to regularly review guidance from Cal/OSHA, the California Department of Public Health, and the CDC to address workplace health risks effectively. Regularly updating policies, communicating changes to employees, and maintaining flexibility in response to potential outbreaks or future health crises are good practices for employers to follow. 

Contact your favorite CDF attorney to assist with ensuring compliance with regulations to maintain safe workplace practices.

Court Approves Attorney’s Fees for Employees Who Successfully Appealed Labor Commissioner’s Denial of Unpaid Wages Claim

Posted: | Category: California - General

By: Court Approves Attorney’s Fees for Employees Who Successfully Appealed Labor Commissioner’s Denial of Unpaid Wages Claim

In Villalva v. Bombardier Mass Transit Corp., employees Mark Villalva and Bobby Jason Yelverton initially filed a claim for unpaid wages relating to on-call pay with the Labor Commissioner’s office, who denied their claim and ruled in the employer’s favor. On appeal in superior court, the employees were awarded unpaid wages and attorney’s fees. The California Court of Appeal affirmed the superior court’s order, holding that Labor Code section 98.2 does not preclude the prevailing party to an appeal following a Berman hearing from recovering attorney’s fees under generally applicable attorneys’ fee provisions of the Labor Code. 

Background

In actions for unpaid wages, an employee may either: (1) file suit directly in court or (2) seek administrative relief from the Labor Commissioner through a “Berman hearing” which provides an informal, streamlined process of resolving wage disputes. Once the labor commissioner issues an order at the conclusion of a Berman hearing, either party may appeal the decision to the superior court for de novo review (a review that does not afford any weight to the results of the Berman hearing). If the appealing party is unsuccessful in superior court, the prevailing party is entitled to attorney’s fees and costs against the unsuccessful appellant. Labor Code § 98.2. Section 98.2 is silent as to whether successful appellants are likewise entitled to attorney’s fees. 

Appellate Court Clarifies Attorney’s Fees for Successful Appellants

In Villalva v. Bombardier Mass Transit Corp., plaintiffs worked as train dispatchers who were required to be “on-call” one weekend a month. The employees initially filed a wage claim with the Labor Commissioner’s office, seeking overtime wages (Labor Code § 1194) and wage statement penalties (Labor Code § 226) for unpaid on-call time. The labor commissioner denied the claims in their entirety, and the employees appealed to the San Diego Superior Court. Following a bench trial, the superior court awarded the employees $140,000 in back wages and penalties, and $200,000 in attorney’s fees and costs. The employer disputed only the award for attorney’s fees, contending that Labor Code section 98.2 is the exclusive method for obtaining attorney’s fees in Berman appeals. Section 98.2 provides that a party seeking appeal of a Labor Commissioner award is required to pay the other parties’ fees and costs if the appellant is unsuccessful on appeal, but defines “success” for employees as anything greater than zero.  This statute therefore largely operates to discourage appeals by the employer.

The California Court of Appeal concluded that an employee who successfully appeals a Berman hearing order, and prevails in superior court, is entitled to attorney’s fees and costs. In state court actions for unpaid wages, prevailing plaintiffs are entitled to attorney’s fees and costs under Labor Code sections 218.5, 226, and 1194. The court held that the legislature did not intend for section 98.2 to displace these generally applicable fee provisions for prevailing plaintiffs. The purpose of the “unsuccessful” appealing party fee provision in section 98.2 is to discourage meritless and unwarranted appeals (mostly as to employers). The court observed that adopting the employer’s interpretation—limiting section 98.2 to only operate against unsuccessful appellants—would discourage meritorious appeals and may discourage employees from pursuing the Berman procedure, at all, for fear that it will create a potential disadvantage in the event of an adverse administrative ruling.

Takeaways for Employers 

The court’s ruling favors employees by assuring that attorney’s fees are recoverable in the event that the employee elects to appeal the Labor Commissioner’s adverse order. The ruling also places Berman appellants on the same footing as plaintiffs who initially filed in state court by clarifying that generally applicable fee provisions to prevailing plaintiffs under the Labor Code are applicable whether the employee initially commenced the wage dispute administratively or in state court. This decision, coupled with Labor Code section 98.2, provides added incentives for employees to pursue appeals of adverse administrative rulings following a Berman hearing. 

Trump Fires NLRB General Counsel and One Board Member

Posted: | Category: Labor Law - NLRB

By: Trump Fires NLRB General Counsel and One Board Member

When former President Joe Biden took office in January 2021, he terminated the General Counsel of the NLRB, Peter Robb, on Inauguration Day. That termination was challenged by the business community. Multiple lawsuits, including the Ninth Circuit decision in Aakash Inc., DBA Park Central Care and Rehabilitation Center v. NLRB held that the termination was constitutional. As a result, many thought Trump would have the same fate in store for Robb’s replacement, Jennifer Abruzzo, on January 20. 

Then, nothing happened on January 20, or at any time last week. The labor law community was not sure what was going on. Was the support of Teamsters President Sean O’Brien saving Abruzzo’s job? Was Trump too busy dealing with immigration, January 6 convictions, and other issues to care about the NLRB? If so, how long would that last? Lots of speculation started.

Last night, we got our answer. In one swift move, Trump terminated Abruzzo, and at the same time, he one-upped Biden by also terminating NLRB Board Member Gwynne Wilcox, whose term was not set to expire until August 2028. The Abruzzo termination is supported by federal court precedent. It is unclear whether the Wilcox termination is proper and permissible. 

Section 3 of the National Labor Relations Act (NLRA) expressly states that the President can only terminate NLRB Board Members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Thus, the Wilcox termination appears to be in conflict with the Act. However, there are some that believe that statutory restrictions against at-will removal of Board Members in Section 3 are an unconstitutional limit on the power given to the President as the head of the Executive Branch of government and have filed lawsuits challenging NLRB actions on this ground. The lower courts have not been consistent in reaching a conclusion on this issue. The termination of Board Member Wilcox, who immediately thereafter issued a statement claiming that she plans to pursue all legal remedies to challenge this action, appears to be a staging ground for accelerating Supreme Court review of the issues related to the constitutionality of the NLRA provisions limiting NLRB Board Member terminations.    

Meanwhile, as a result of these terminations, the NLRB now only has two members, Chairman Marvin Kaplan, who is pro-business, and David Prouty, who is pro-union. The Board needs a quorum of at least three members to take any actions, so at this point, the Board appears to be powerless, unless Trump appoints a third member. While this may grind the Board to a halt, it also will delay expected actions by a Trump appointed Board to overturn many of the pro-union decisions issued by the Biden Board. It also remains unclear what will happen at the Regional level with matters being adjudicated and prosecuted by the various NLRB regions via Regional Directors through NLRB administrative law judges. Fauda is probably the appropriate word for the situation, at least for the next few days, and perhaps longer.

In terms of what employers should do, that remains very unclear and there are few clear right or wrong answers. Generally, decisions should be made on a case-by-case basis and will need to evolve as things develop with the Board over the next few days and weeks. Employers with matters before the NLRB and ongoing labor campaigns should consult with experienced traditional labor lawyers to help evaluate and strategize on how these terminations may, or may not, influence their approach to pending matters.  

New Executive Order Targets Federal DEI Practices

Posted: | Category: HR - Diversity

By: New Executive Order Targets Federal DEI Practices

By: New Executive Order Targets Federal DEI Practices

On January 21, 2025, President Donald Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”). The Order states that over 60 years following the enactment of the Civil Rights Act of 1964, preeminent American institutions improperly use race and sex-based preferences under the guise of “diversity, equity and inclusion” (“DEI”) and “diversity, equity, inclusion, and accessibility” (“DEIA”) in a manner that violates civil rights laws.  

The Order specifically references the recent United States Supreme Court decision Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”), wherein a 6-3 decision, the Supreme Court held that the admissions processes at Harvard and the University of North Carolina violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment in the way the schools consider race. Notably, the SFFA Court held that while race cannot be used as a “plus” or deciding factor in university admissions, it does not exclude considering an applicant’s racial experiences if tied to unique character traits or abilities.  

While many argue that SFFA does not outright prohibit DEI and DEIA initiatives, the Order states that all federal executive departments and agencies must “enforce anti-discrimination laws” and outright terminate all such discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. The Order expressly revokes multiple Executive Orders and a Presidential Memorandum previously issued to promote diversity and inclusion in the federal workplace, government contracting, and national security workforce, among other areas, including with respect to environmental justice in minority and low-income populations. 

The Order expressly provides that the Office of Federal Contract Compliance Programs (“OFCCP”) must immediately cease:

  • (a) promoting “diversity,”
  • (b) requiring federal contractors to take “affirmative action,” or
  • (c) allowing or encouraging any federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin (a practice already outlawed by SFFA and prior United States Supreme Court decisions such as Bakke v. University of California, 438 U.S. 265 (1978)).

The Order even directs the OFCCP to include language in its contracts and grants with federal contractors that states the contractors do not operate any programs “promoting DEI” that violate any applicable Federal anti-discrimination laws. The parameters of SFFA, its predecessors, and future cases addressing the SFFA opinion, must be carefully considered in analyzing what in fact violates existing anti-discrimination laws.  

The Order does allow for the OFCCP to continue to enforce anti-discrimination and affirmative action initiatives for disabled persons and veterans under Section 503 of the Rehabilitation Act, 29 U.S.C. 793, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212, and the Randolph-Sheppard Act, 20 U.S.C. 107 et seq. Those statutes will remain in effect under the Order. 

Additional measures restricting DEI and DEIA initiatives will likely be taken against state and local educational institutions and institutions of higher learning (specifically those receiving federal funding, grants or student loan assistance) given that the Order requests that the Attorney General and the Secretary of Education jointly issue guidance within 120 days to ensure their compliance with the SFFA. Private employers nationwide can also expect to see more regulations from President Trump and his administration because the Order specifically mandates that all federal agency leaders, with the assistance of the Attorney General, take steps to advance anti-DEI/DEIA efforts in the private sector. The President has requested specific reporting to examine key sectors of concern, measures to deter DEI programs or principles, and potential federal lawsuits, among other “strategies to end illegal DEI discrimination and preferences.” Employers should pay particularly close attention to the rapid changes that are likely to be made in this area, but also be cautious as many states have their own anti-discrimination requirements that must be followed despite these changes on the federal level under the Order. 

If you have questions regarding this Order, please do not hesitate to contact your favorite CDF attorney.

What Employers Should Know About The New Immigration Orders

Posted: | Category: Immigration - General

By: What Employers Should Know About The New Immigration Orders

On January 20, 2025, Donald Trump returned to the presidency. Within two hours of assuming office, he executed a series of executive orders intended to carry out a restrictive and enforcement heavy immigration agenda. While these executive orders do not directly target employers or employment-based immigration, employers should expect additional scrutiny of the foreign nationals they employ and their workforce generally.

The Trump Administration announced the intention to require the registration of all foreign nationals in the United States and enhance the vetting and screening of foreign nationals seeking admission to the United States. Foreign nationals in the United States should expect multiple, duplicative, and repetitive visits to USCIS’ Application Support Center to have their photograph and fingerprint taken. While it remains to be seen what the practical effect of this directive will be, employers should anticipate longer adjudication times, additional scrutiny, and higher costs to petition to employ foreign nationals in the United States.

The Trump Administration has also stated that it intends to limit the number of employment authorized non-citizens in the United States. This will likely manifest itself in the form of the termination of DACA, and revocation of Temporary Protected Status and humanitarian parole issued by the Biden Administration. Foreign nationals using these programs to work in the United States should anticipate that the government will not renew their employment authorization card. Employers wishing to retain these employees should consult immigration counsel to determine options for these employees.

These executive orders include potential bans on admission to the United States based on country of origin. Labeled the Muslim Ban by the press during his first term in office, the Trump Administration is widely expected to promulgate another order prohibiting citizens of certain Islamic countries from entering the United States. Employers doing business in, employing, or seeking to employ citizens of Chad, Eretria, Iran, Iraq, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, and Venezuela should anticipate that these workers may not be able to enter the country, or that there may be more hurdles to their employment.

Finally, while there is no specific executive order regarding the use of workplace raids, it’s not unrealistic to expect Immigration and Customs Enforcement to conduct workplace raids and increase the use of I-9 audits. In response to these potential risks, employers would be well served to enroll in eVerify, and regularly audit their I-9 forms. While eVerify is not insurance against the employment of an unauthorized foreign national, it puts an employer in a stronger bargaining position with ICE and the Executive Office for Immigration Review.

Larger employers should consider utilizing electronic I-9 management software. Immigration regulations give employers selected for audit three days to produce their I-9 forms. While ICE auditors regularly granted employers an extension of time to produce their I-9 forms, employers should not count on such generosity in the future. Additionally, employers selected for audit should expect ICE to take a more aggressive position and seek larger fines. Employers may find it more cost effective to litigate and test ICE’s enforcement than to acquiesce to ICE’s conclusion.

While these Trump immigration orders do not directly touch employment or employment immigration, there’s plenty for employers to worry about. Companies should contact Richard Green at CDF if they are concerned about how these issues may impact them.

CDF Expands Firm Leadership, Elevates Two Attorneys to Partner

Posted: | Category: Law Firm News

IRVINE, Calif. – January 23, 2025 – Labor, employment and business immigration defense law firm CDF Labor Law LLP (CDF) is proud to announce the elevation of two outstanding attorneys, Tashayla “Shay” Billington and Linda Wang, to Partner. These individuals are among the 50 CDF attorneys who aggressively defend and guide employers through the challenging legal landscape in California. Their unwavering dedication and remarkable contributions have been vital to the firm’s success and growth.

“Shay and Linda have consistently demonstrated exceptional legal expertise and an unwavering commitment to delivering outstanding client service to California employers across diverse industries,” said Firm Managing Partner Marie DiSante. “Their remarkable skills, leadership, and dedication reflect the core values that have driven CDF’s success for the past 30 years. We are proud to celebrate their well-deserved promotions and look forward to an even brighter future with their continued contributions.”

CDF New Partners (in alphabetical order by last name):

Tashayla “Shay” Billington – Partner (Sacramento):

Shay brings over a decade of experience in labor and employment law, with a particular emphasis on traditional labor matters. Her practice focuses on defending clients against unfair labor practice charges before the National Labor Relations Board, where she has a proven track record of securing early dismissals and favorable settlements. Shay advises and guides clients through negotiating union contracts, resolving grievances, and managing arbitrations under collective bargaining agreements. She also assists non-unionized employers with union campaign strategies and avoidance measures. Her prior experience representing public safety unions and appearances before the California Public Employment Relations Board provides her with valuable firsthand insights into the dynamics of labor relations.

In addition, Shay provides defense and counsel to companies with workforces in California on matters involving single-plaintiff claims related to discrimination, retaliation, harassment, wrongful termination, employment-related torts, wage and hour class actions, and issues arising under the Private Attorneys General Act (PAGA). She excels in conducting thorough discovery processes, including depositions and motion practice, and is proficient in guiding clients through employment mediation and arbitration.

Shay earned her J.D. from the University of the Pacific, McGeorge School of Law in 2015, graduating Order of the Coif and Order of the Barristers. She has been recognized by Best Lawyers® as “Ones to Watch” in Labor and Employment Law (Management) and Litigation (Labor and Employment) for 2023 to 2025, and by Super Lawyers® Northern California Rising Stars from 2021 – 2024.

Linda Wang – Partner (Los Angeles):

Linda defends national, regional, and local employers in all aspects of California labor and employment law and related litigation. Linda assists clients across various industries including healthcare, technology, manufacturing, construction, and more. Her practice includes defending clients against claims of wrongful termination, harassment, discrimination, retaliation, and wage and hour violations. Linda’s expertise extends to managing sophisticated wage and hour class action litigation, including claims involving meal/rest breaks, bonuses, overtime calculations, wage statements, arbitration agreements, and PAGA.

In addition to her litigation practice, Linda is a founding member of CDF’s Privacy Practice Group, where she advises clients on compliance and risk mitigation in the rapidly evolving area of data privacy. She provides strategic counsel on navigating complex privacy regulations, including the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA). Linda works with employers to implement comprehensive privacy policies, develop and manage data breach response plans, and ensure compliance with privacy laws governing the collection, storage, and use of employee and consumer data. Her approach is proactive and tailored, focusing on minimizing risk while maintaining operational efficiency.

Linda also advises clients on a variety of workplace matters, such as wage and hour compliance, leave laws, and workplace disputes. She works closely with clients to understand their business needs and to develop effective legal strategies. California labor law is complex, but Linda’s go-getter attitude and client-focused approach ensure that her clients’ best interests are always prioritized.

Linda earned her J.D. from the University of California, Irvine School of Law in 2017. Linda has been recognized by Best Lawyers® as “Ones to Watch”, in Labor and Employment Litigation in Los Angeles, CA for 2024 and 2025.

About CDF Labor Law LLP

For 30 years, CDF Labor Law LLP has distinguished itself as one of the top labor, employment and business immigration law firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. The firm has five offices throughout California – in Sacramento, San Francisco, Los Angeles, Orange County and San Diego. For more information, visit: www.CDFLaborLaw.com and find CDF on LinkedIn or Twitter to learn more about how the firm protects California employers. For access to timely alerts on the latest California labor and employment law developments, sign up for the firm’s blog by visiting: www.CalLaborLaw.com.

Olympic Wages Approved by Los Angeles City Council 

Posted: | Category: California - Wage & Hour Tags:

By: Olympic Wages Approved by Los Angeles City Council 

As a present to organized labor, the Los Angeles City Council voted to approve a draft of the “Olympic Wage Ordinance” that, when finalized, will have a profound impact on the City’s hotel industry–an industry experiencing an unexpected spike in demand resulting from the tragic realities of persons recently displaced by the wildfires.  

The ordinance is designed to incrementally increase minimum wages for certain hotel (and other) workers by $2.50 per year until a $30/hour wage is achieved by July 2028, when the Olympics are set to begin:

  • $22.50/hour eff. July 1, 2025
  • $25.00/hour eff. July 1, 2026
  • $27.50/hour eff. July 1, 2027
  • $30.00/hour eff. July 1, 2028

In addition to wage increases, the ordinance also will increase healthcare benefit payment entitlements.

The ordinance will cover employees at Los Angeles hotels with 60 or more rooms, as well as other workers in the tourism industry, concessions, airport workers, and various others. It will also include a right-to-cure provision that requires employees to give employers advance written notice of violations of the ordinance and 30 days to cure the alleged violation before filing an administrative charge or court complaint.

Presumably, the City Council’s plan was to finalize the draft into formal law in early 2025 before the planned July 2025 wage increase. It is unclear if the impact of the wildfires will change those plans or change the ordinance in any way. Los Angeles employers in the hotel and tourism industries should keep an eye on the Olympic Wage Ordinance and the City Council’s related actions over the next few months to make sure they are prepared and compliant when the inevitable changes do come. Of course, you may contact the author of this blog or any CDF attorney for up-to-date information and guidance.

Essential Resources for Employers Navigating Southern California Wildfires

Posted: | Category: California - General

By: Essential Resources for Employers Navigating Southern California Wildfires

At this critical time, CDF wants California employers to know that we are here to support you. To assist, we have put together a list of resources from state, federal, and other key sources to help employers navigate these difficulties and for the well-being of their workforce.

State Resources

1. California Office of Emergency Services (Cal OES)

  • Website: Cal OES Wildfire Resources
    • Cal OES provides real-time updates on wildfire incidents, evacuation orders, and disaster recovery resources. Employers can access information on state assistance programs, including grants and loans for disaster recovery.

2. California Employment Development Department (EDD)

  • Website: EDD Disaster Services
    • EDD offers resources for businesses and employees affected by wildfires, including unemployment insurance claims for displaced workers, tax relief for impacted employers, and support for temporary closures.

3. Cal/OSHA

  • Website: Cal/OSHA Wildfire Smoke Regulations
    • Cal/OSHA provides guidelines on implementing protections such as air quality monitoring, providing respirators, and modifying work schedules, including wildfire smoke regulations.

4. California Labor Commissioner’s Office

  • Website: Wage and Hour Compliance During Emergencies
    • Employers can access guidelines on wage and hour laws during emergencies, including how to handle employee pay during business closures, remote work policies, and compliance with meal and rest break requirements during emergencies.

5. California Wildfire Recovery Resources

  • Website: CA.gov Wildfire Recovery Resources
    • This resource hub provides information on disaster assistance, housing resources, financial aid, and public safety updates. Employers can use this platform to stay informed about ongoing recovery efforts and resources tailored to businesses affected by wildfires.

6. CA.gov LA Fires Resource Page

  • Website: CA.gov LA Fires Resources
    • This dedicated resource page provides updates on wildfires in the Los Angeles area, including real-time incident information, evacuation zones, and safety alerts. Employers can access guidance on protecting employees, business continuity strategies, and links to local aid programs to assist affected communities and workplaces.

Federal Resources

1. FLSA Compliance During Disasters and Recovery

  • Website: DOL Fact Sheet #72: FLSA Disasters and Recovery
    • This fact sheet from the U.S. Department of Labor provides guidance on Fair Labor Standards Act (FLSA) compliance during disasters and recovery periods. Employers can find critical information on compensating employees under Federal law, including overtime rules, exemptions, and handling pay for non-exempt and exempt employees during business closures or emergencies. It also covers key considerations for record-keeping and wage adjustments in disaster-affected areas under Federal law.

2. Federal Emergency Management Agency (FEMA)

  • Website: FEMA Disaster Assistance
    • FEMA offers disaster assistance programs for businesses, including public assistance grants, hazard mitigation resources, and low-interest loans for recovery. Employers can also find guidance on creating business continuity plans.

3. Small Business Administration (SBA)

  • Website: SBA Disaster Assistance
    • The SBA provides low-interest disaster loans to businesses, nonprofits, and homeowners. Employers can use these loans to repair or replace property, equipment, and other assets damaged in wildfires.

4. Occupational Safety and Health Administration (OSHA)

  • Website: OSHA Wildfire Preparedness
    • OSHA offers a comprehensive guide to workplace safety during and after wildfires. Employers can access resources on hazard identification, emergency response planning, and post-fire cleanup safety protocols.

Other Key Resources

1. California Chamber of Commerce (CalChamber)

  • Website: CalChamber Wildfire Resources
    • CalChamber provides guidance on employer obligations during emergencies, including wage and hour considerations, leave laws, and workplace safety requirements.

2. Red Cross Ready Rating Program

  • Website: Red Cross Wildfire Preparedness
    • This program offers tools and resources for businesses to enhance disaster preparedness. Employers can access training materials, emergency planning templates, and recovery guides.

3. Ready.gov

  • Website: Ready.gov Wildfire Resources
    • Managed by the Department of Homeland Security, Ready.gov provides step-by-step guidance on wildfire preparation and response. Employers can find checklists, communication templates, and tips for protecting employees and assets.

4. Los Angeles Wildfires Resources by Economic & Workforce Development Department (EWDD)

  • Website: EWDD Los Angeles Wildfires Resources
    • This page provides resources tailored for businesses and workers in Los Angeles affected by wildfires. Employers can find information on workforce development services, grants, and emergency assistance programs. The platform also connects businesses with opportunities for financial relief, support for displaced employees, and guidance on rebuilding and recovery.

At CDF, we are here to support California employers and national employers with workforces in Southern California as you navigate the challenges posed by wildfires. Please do not hesitate to reach out with any CDF attorney with questions or concerns. Together, we can work toward ensuring the safety and stability of your business and employees during this difficult time.

SoCal Wildfires: Guidance For Employers Supporting Their Workforce Through Difficult Times

Posted: | Category: California - General

Wildfires continue to sweep through Southern California, leaving thousands of people displaced as well as burning businesses to the ground. Beyond the personal and community impacts, wildfires present unique challenges for employers who must navigate workplace safety, legal compliance, and operational disruptions. Employers should keep the following in mind during this crisis.

Workplace Safety and Health

The California Division of Occupational Safety and Health (Cal/OSHA) mandates that employers protect employees from workplace hazards, including those arising during natural disasters. This includes protecting employees from wildfire smoke exposure whenever the Air Quality Index (AQI) for PM2.5 exceeds 151. 

While the AQI has vastly improved as of the time of this post, high wind alerts and varying conditions make it imperative for employers to stay vigilant and well-informed. This includes ensuring that the AQI of any worksite affected by wildfire is regularly monitored prior to and throughout each work shift.  

Employers must provide respirators to all employees (and encourage their use) for all worksites experiencing an AQI of 151-500– as many areas of Los Angeles experienced in the last week. 

More information regarding wildfire smoke standards can be found on Cal/OSHA’s website.

Employers should also stay informed regarding local evacuation orders and clearly communicate to employees how such orders impact reporting to work and the business. For those near evacuation sites, providing necessary personal protective equipment, implementing flexible schedules, identifying evacuation routes, and considering telecommuting arrangements may all become important things to consider.

Wage and Hour Compliance

Nonexempt Employees

Employers must continue to track and compensate nonexempt employees for all hours worked, even during disruptions. This includes ensuring that employees are paid for additional hours worked while navigating operational changes. However, there are some requirements that may be impacted by the wildfires:

  • Timekeeping Record Unavailability: If an employer’s timekeeping records were lost or are now unusable, the employee’s hours worked must be re-established so that the employees receive timely compensation.  Employers should work with employees to confirm their hours during the affected period, and, ideally, obtain related written confirmation. 
     
  • Reporting Time Pay: California law generally requires employers to compensate employees who report to work but are sent home early. However, this obligation does not apply in cases where work interruptions result from “Acts of God” or other uncontrollable events, such as wildfires.
     
  • Split-Shift Premiums: Flexibility is essential given varying conditions when experiencing an ongoing natural disaster.  This means that some employers may find the need to send employees home early, asking them to return early in the day.  In those situations, employers may owe employees a split shift premium (one hour of pay at the state minimum wage.) 
     
  • Employees On-Call: If an employee is on-call (and under the employer’s control) during the wildfires, they must be compensated for that time.
     
  • Business Closure: If a business remains closed for a period of time, nonexempt employees do not need to be paid for their remaining scheduled shifts unless they perform work.

Exempt Employees

Exempt employees are entitled to their full salary for any week in which they perform work, even if workplace disruptions occur. However, employers are not required to pay exempt employees for full-week closures during which the employee performs no work.  

Telecommuting Arrangements

Employers may be asked to consider remote work arrangements while the wildfires are still in play. Some of those requests may fall under a request for reasonable accommodation (as further discussed below).

Employers considering telecommuting arrangements may want to refer to this article.

Leaves of Absence And Accommodation Issues

Leave Entitlement 

Employees affected by the wildfires may qualify for leave under the California Family Rights Act (CFRA) or the federal Family and Medical Leave Act (FMLA). Covered reasons include serious health conditions caused by wildfire smoke or injuries, and the need to care for impacted family members.

Employees involved in disaster relief may also have specific work protections under California law. Employers should be familiar with applicable state and local provisions to ensure compliance while supporting employees in need.

Accommodation Requests

Conditions created by the wildfires may create the need for an accommodation under the Americans with Disabilities Act (ADA) or California’s Fair Employment and Housing Act (FEHA). The wildfires may impact employees’ physical or mental health, leading to workplace restrictions. Employers should engage in the same interactive process as any other time an employee requests a reasonable accommodation for a medical condition. 

Sick Leave and Paid Time Off

Employees in California may use accrued sick leave for absences related to the wildfire disaster, provided the reason aligns with a permissible use under the law, such as addressing health concerns or caring for a family member. Additionally, employees may opt to use paid leave under the company’s vacation or paid time off (PTO) policy, if the policy permits or if the employer allows it. It is essential to keep employees informed about their leave entitlements and any workplace changes resulting from the disaster to ensure compliance and support during this challenging time.

Reduction In Force Issues

Employers forced to reduce staff or temporarily shut down due to wildfires should assess obligations under the California Worker Adjustment and Retraining Notification (Cal-WARN) Act. While Cal-WARN generally requires 60 days’ notice of mass layoffs or closures, the law exempts employers in cases of “physical calamity.” Employers must still communicate transparently with employees and document efforts to comply with legal requirements.

Opportunities

Employers have the opportunity to work with employees and neighborhoods in crisis to start volunteer projects, join volunteer efforts and help care for employees who have lost everything in the wildfires. Participation in such efforts in the weeks/months to come will help communities return to a more normal status, generate goodwill and morale and teamwork among a workforce.

Looking Ahead

As the wildfires continue to threaten Southern California and the situation continues to develop, employers will continue to face many unprecedented challenges. CDF is here to support our clients and their workforce. Employers in need of assistance in managing these challenging times should consult their favorite CDF attorney.  
 

Employer Strikes Gold: California Court of Appeals Reverses Dismissal of Mining Company’s Arbitration Agreement 

Posted: | Category: HR - Arbitration Issues

By: Employer Strikes Gold: California Court of Appeals Reverses Dismissal of Mining Company’s Arbitration Agreement 

In a recent unpublished California appellate court decision, the Court unanimously reversed the lower court’s ruling that an agreement to arbitrate contained in an employee handbook was unenforceable. 

Case Background

In May 2023, former employee Seth Robert Nelson filed a lawsuit against Golden Queen Mining Company LLC, alleging violations of California wage and hour laws. The Company sought to compel arbitration of the claims, citing an arbitration agreement kept within the Company’s employee handbook that Nelson had signed during his employment. The trial court denied the motion based on its determination that two provisions in the handbook acknowledgment, which also contained the employee’s agreement to arbitrate, were inconsistent and rendered the agreement unenforceable. One provision stated that the handbook’s “guidelines” did not create any contractual rights, while the other acknowledged receipt of a voluntary agreement to contractually arbitrate employment disputes. 

The Appellate Court Decision

The Court of Appeal disagreed with the trial court’s conclusion, finding that the agreement was separate from the handbook’s guidelines and therefore, enforceable. The court explained that although both the arbitration agreement and the handbook’s guidelines appeared in the same acknowledgment, they were not part of the same contractual framework.

Key to the decision was the court’s distinction between the terms “guidelines” and “arbitration agreement.” The court noted that the “guidelines” in the handbook referred to general policies, which were not intended to create enforceable contractual obligations. In contrast, the arbitration agreement was a distinct and specific contract designed to resolve disputes through arbitration. The Court noted that the separation of the two provisions within the acknowledgment made it evident that the arbitration agreement was not part of the “guidelines” contained in the employee handbook.

As a result, the Court reversed the trial court’s order denying the motion to compel arbitration and remanded the matter for the trial court to resolve the remaining issue of whether the agreement was unconscionable. 

Implications for Employers and Employees

This ruling is a win for employers seeking to enforce arbitration agreements, particularly in cases where those agreements are included in employee handbooks. Nonetheless, the decision underscores the importance of clear and distinct language when drafting arbitration clauses and employee acknowledgment forms, and serves as a reminder that the best practice is to issue a separate arbitration agreement. 

Employers in need of assistance updating employee handbooks and/or arbitration agreements should consult with a CDF attorney to ensure their policies are enforceable under California law.