Laborsphere

9th Circuit Says Forum Selection and Choice of Law in Employment Agreement Violate California Law

On March 14, 2022, the 9th Circuit affirmed the U.S. District Court for the Central District of California’s decision in DePuy Synthes Sales, Inc. v. Howmedica Osteonics Corp. and Stryker Corp., that invalidated the New Jersey forum selection clause in the employment contract of Stryker’s former sales associate as a matter of California law and denied Stryker’s motion to transfer the litigation to New Jersey. Though forum selection clauses are generally enforceable under federal law, the 9th Circuit reasoned that deference must be given to state law in determining the validity of a forum selection clause before considering whether the clause is enforceable under 28 U.S.C. § 1404(a).

The case involved a former Stryker medical device sales associate, Jonathan Waber, who was employed by Stryker in California and who signed an employment contract with Stryker without legal representation. The agreement included non-competition and non-solicitation provisions, and also included forum-selection and choice-of-law clauses requiring adjudication of contract disputes in New Jersey. After less than one year of employment with Stryker, Waber left Stryker to work for one of its competitors, DePuy. After receiving a cease-and-desist letter from Stryker, DePuy and Waber preemptively filed a declaratory judgment action in the U.S. District Court for the Central District of California against Stryker and its subsidiary, Howmedica.

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New EEOC Technical Assistance Addresses Caregiver Discrimination

On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document, the COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, which explains how discrimination against applicants and employees with caregiving responsibilities can violate federal equal employment opportunity (EEO) laws. Although EEO laws do not prohibit discrimination against caregivers specifically, there are some circumstances in which discrimination against caregivers may be unlawful. Because the COVID-19 pandemic has created — and exacerbated — competing job and caregiving demands for individuals as they navigate hybrid work schedules, unexpected closures of school and care facilities, and potential COVID-19 exposure, the EEOC’s updated information may inform employer decisions and actions as they adapt their workplaces to the evolving COVID-19 pandemic.

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Employers Adjust as COVID-19 Restrictions and Regulations Are Rolled Back Globally

On February 21, Britain’s Prime Minister, Boris Johnson, announced that all of England’s COVID-19 regulations and restrictions would be revoked in coming weeks. Shortly thereafter, countries across the globe began to follow suit.

In the United Kingdom, mandatory vaccination regulations for employees in England’s health and social care settings that were due to be implemented April 1, 2022, will be revoked by March 15, 2022.
In Austria, the country’s universal COVID-19 vaccination mandate will be suspended. The measure was signed into law on February 4, but compliance checks were not scheduled to start until March 15.

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Colorado Issues New Guidance on Prohibition Against Forfeiture of Earned Vacation or PTO

A series of recent developments in Colorado law have made it clear that employers are prohibited from causing employees to forfeit earned vacation time. A compilation of recent developments and the Colorado Department of Labor and Employment’s current position are contained in Interpretive Notice & Formal Opinion (INFO) #14, which explains that:

Employees must be paid all earned vacation pay when their job ends.
No employment policy or agreement can waive or forfeit earned vacation at any time.
All paid leave which can be used at the discretion of the employee is considered “vacation pay” subject to the non-forfeiture rules.

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Brazil Joins the Growing List of Countries Offering “Digital Nomad” Visas

The COVID-19 pandemic is causing many employers to reconsider the need for employees to return to the office in any capacity. At the same time, many employees have requested to work remotely from other countries. This presents potential tax (both corporate and individual), permanent establishment, and immigration issues. In response, as of the beginning of 2022, over 20 countries are now taking a dynamic approach to these changes and have introduced “digital nomad” visas that allow individuals to live in the respective country while working for a company that has no presence there.

Brazil has joined this growing number of countries that are offering digital nomad visas, issuing the long-awaited Resolution No. 45. Resolution No. 45 allows non-Brazilian workers to apply for visas that allow them to work in Brazil as digital nomads for up to 90 days during a 180-day period, or up to 180 days in a one-year period. Such visas will be valid for up to one year and will be eligible for renewal for another year. The maximum period a worker may remain in the country pursuant to Resolution No. 45 depends upon the worker’s nationality.

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New Law Prohibiting the Mandatory Arbitration of Sexual Harassment and Assault Claims Goes Into Effect

On March 3, 2022, President Joe Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the Act) into law. Upon signing the bill, which had bipartisan Congressional support, President Biden proclaimed, “[w]hen it comes to sexual harassment and assault, forced arbitration shielded perpetrators, silenced survivors, enabled employers to sweep episodes of sexual assault harassment under the rug and it kept survivors from knowing if others have experienced the same thing in the same workplace, at the hands of the same person.”

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