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Bay Area Counties Require Essential Businesses to Establish and Post Social Distancing Protocols

Seven Bay Area counties renewed and modified their shelter-at-home orders yesterday, extending the shutdown period through May 3, and in all cases but one, requiring that all essential businesses that remain open establish and post social distancing protocols by April 2 at 11:59 p.m.: San Francisco, Marin, Contra Costa, Santa Clara, San Mateo, Alameda, and Santa Cruz.

Santa Cruz County also extended its order through May 3, but does not include the same provision requiring establishment and posting of social distancing protocols.

The orders specify that social distancing protocols must be substantially in this form, and be posted at or near the entrance of the business where it is easily viewable by the public and employees. A copy of the social distancing protocol must also be provided to each employee performing work at the business.

The social distancing protocol must explain

COVID-19: Considerations for Retailers on Employee Furloughs in U.S. and California

As an alternative to laying off employees, many retailers may be considering furloughs – unpaid leaves or drastic reductions in work hours or work schedules – that allow them to retain employees and possibly continue to provide certain benefits. Retailers should be aware that furloughs still likely trigger notice requirements under state WARN laws, and in California may be considered a termination of employment requiring payment of final wages.

This post provides an overview of furlough considerations with respect to unemployment benefits, WARN laws, possible termination implications, reduced hours or work share, use of vacation time, and benefits.

Unemployment Insurance

Furloughed employees, as well as many employees with reduced hours, are eligible for unemployment insurance benefits. In California, Governor Newsom’s Executive Order N-25-20 removes the waiting period to receive benefits. More information on filing for unemployment benefits is available here.

WARN Laws

The federal Worker Adjustment and Retraining

CRA Advises California Distribution Centers Can Stay Open Under State Order

California Governor Newsom has clarified that distribution centers in California can remain open under his Safer At Home order, stating that “distribution centers are part of critical infrastructure for many industries,” according to the California Retailers Association.  CRA also reports that it has obtained oral confirmation from the governor’s office that online sales and shipping activities can continue under the order.

As we previously reported, Governor Newsom on Thursday issued a statewide order directing all individuals to stay at home “except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” The order went into effect on Thursday, and is in place until further notice.

As to exempt business activities, the order and web page providing more information on the order both refer to the Guidance on the Essential Critical Infrastructure Workforce by the U.S. Dept. of Homeland Security’s Cyber Infrastructure (CISA),

COVID-19: California Issues Statewide Stay At Home Order; What It Means for Retailers

Following COVID-19 shelter-in-place orders by nearly a dozen different California counties, Governor Gavin Newsom on Thursday evening issued a statewide order directing all individuals in the state to stay home “except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”

The web page providing more information on the order directs residents to stay at home “except for essential needs.”  As under county shelter-in-place orders, it advises that essential services will remain open such as:

  • Gas stations
  • Pharmacies
  • Food: Grocery stores, farmers markets, food banks, convenience stores, take-out and delivery restaurants
  • Banks
  • Laundromats/laundry services

The following are closed statewide:

  • Dine-in restaurants
  • Bars and nighclubs
  • Entertainment venues
  • Gyms and fitness studios
  • Public events and gatherings
  • Convention centers

Governor Newsom’s order expressly orders that Californian’s working in 16 federal critical infrastructure sectors may continue their work “because of the importance of

California Adopts New Prop. 65 Warning Regulations

California’s Office of Environmental Health Hazard Assessment (OEHHA) has adopted new Proposition 65 warning regulations.  The new regulations will take effect in two years, on August 30, 2018.  In the interim, businesses may choose to comply with either the current or new regulations.

Prop. 65 prohibits businesses from knowingly and intentionally exposing California consumers to a chemical known to the state of California to cause cancer or reproductive harm without first providing a “clear and reasonable warning.”  As we reported on a draft of the regulations in April 2016, the new regulations substantially change what constitutes a clear and reasonable warning.

Products with label warnings manufactured prior to the effective date of the new regulations would continue to receive protection from liability. Parties to existing settlement agreements or court-approved consent judgments also can continue to provide warnings that comply with those agreements or orders.

Regulations Seek to

Receipt With Credit Card Data Constitutes Sufficient Injury for Class Action to Proceed

A recent federal court ruling allows a class action lawsuit to proceed against luxury fashion retailer Jimmy Choo for violating the Fair and Accurate Credit Transactions Act of 2003 (FACTA).  This ruling, which will likely be appealed, has important implications for other consumer class action lawsuits against retailers.

Jimmy Choo was accused of violating FACTA by printing credit card expiration dates on customer receipts in Wood v. J Choo USA, Inc., S.D. Fla. Case No. 15-cv-81487.  Jimmy Choo argued that the plaintiff had no standing to sue because she was not damaged when the retailer printed her credit card expiration date on her receipt. The court disagreed, holding that the consumer was sufficiently damaged to maintain the action as soon as soon as the receipt was printed.

Companies facing lawsuits alleging FACTA violations should be aware that although the U.S. Supreme Court held in Spokeo Inc. v. Robins,

Gender-Based Price Discrimination: California Seeks to Extend Law to Prohibit Discrimination in Pricing of Gender-Specific Goods

California is taking on gender price discrimination. California law already prevents businesses from gender-based price discrimination for services such as haircuts, alterations, and dry cleaning.   A recently proposed bill (Senate Bill 899, Hueso) would extend that law to “retailers” and prohibit price discrimination in the sale of “goods.”

SB 899 recently passed out of the Senate Judiciary Committee, where several positive amendments were made after comments from the California Retailers Association and others.  One significant change from the original proposed legislation is elimination of a requirement that retailers post the prices of all goods so that consumers could determine if “men’s” and “women’s” products were priced the same.  The bill also removed food products from its broad scope.

The bill as amended states: “No business establishment . . . may discriminate, with respect to the price charged for goods of a substantially similar or like kind, against a person

ADA Website Accessibility Cases Continue to Grow

An increasing number of retailers are facing lawsuits or threats of lawsuits regarding website accessibility under the Americans With Disabilities Act (“ADA”), despite the fact that the ADA and its implementing regulations do not expressly address website accessibility.

The Department of Justice first announced in 2010 that it would issue formal regulations regarding website accessibility, but they now are not expected until 2018. In the meantime, the number of cases against retailers and others continue to mount, and judges show no propensity to dismiss or stay the cases while the DOJ works on its regulations.  Last month, a federal magistrate judge in a website accessibility case against Harvard University and the Massachusetts Institute of Technology rejected arguments that the court should dismiss or stay those cases pending issuance of the DOJ regulations.

Further, for what is believed to be the first time in any court, a California judge recently

Putative Class Action Lawsuit Filed against J. Brand Jeans over “Made in California, USA” Label

Plaintiffs in California continue to focus on labels. Recently, a putative class action lawsuit was filed against J Brand, Inc., the maker of designer J Brand jeans and other clothing. The complaint alleges that the label for J Brand jeans states they are “Made in California, USA,” but that more than 5% of the jeans consist of imported material. Specifically, the complaint alleges that the imported material used includes fabric, thread, buttons, subcomponents of the zipper assembly, and rivets.

The plaintiff’s claim against J Brand, Inc. is based on an alleged violation of California Business and Professions Code section 17533.7, which provides that it is unlawful to use “Made in U.S.A.,” or similar words if the product has been “entirely or substantially made, manufactured, or produced outside of the United States.”

There are two exceptions to the statute. First, a company may still use the “Made in U.S.A.” label if

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