Katherine A. Ellis
Katherine A. Ellis
Associate Attorney, Los Angeles, CA
Formerly: Hostess, Server, Front Desk Clerk
Education
  • B.A., International Relations and Government, Sweet Briar College, VA;
  • J.D., University of La Verne College of Law, CA.

From a young age, I always knew I wanted to be a lawyer. Although I didn’t meet any real-life lawyers until after graduating from high school, I somehow just knew it was the field for me. My working background is a kaleidoscope of experiences: working a hotel front desk, answering phones on Capitol Hill, hosting and serving at restaurants, fundraising for non-profits, and knocking on doors for political campaigns.

All of my experiences, however, cultivated in chasing my childhood dream of arguing motions in court and seeing trials to verdict. The diversity of my experience has made me adaptable and nimble and given me the insight to creatively resolve not only legal challenges but human ones too.

When I’m not on the clock, I love going to the movies. The countdown to awards season is about as exciting as Christmas for me—and I love Christmas! I like parties large and small, Dodgers and Lakers games, and outings with friends. Most of all, I cherish the company of my family and Sami, our senior beagle rescue.

On Tuesday, Jill H. Coffman, director of the National Labor Relations Board’s Region 20 office in San Francisco, issued an order allowing furloughed hotel workers to hold union elections by mail in the midst of the COVID-19 pandemic.

UNITE HERE Local 5 filed a petition with the Board to represent a bargaining unit of approximately 350 employees of the Prince Waikiki, a luxury hotel in Honolulu, Hawaii. Like many employers across the country, the Hotel temporarily suspended its operations due to government regulations implemented in response to COVID-19. As a result, all but 50 of its employees in the petitioned-for-unit were temporarily furloughed in late-March with no lapse in benefits. The employees were added back to the payroll in late-April. By mid-June the Hotel began paying employees for time actually worked and conducted ZOOM meetings with staff in preparation for hotel stays beginning on August 1, 2020.

At the Board hearing on June 15, 2020, the Hotel unsuccessfully argued, among other things, that the election should be postponed until after a substantial complement of employees returned to work. Ultimately, the decision made in favor of the Union turned on whether the furloughed employees had a “reasonable expectation of reemployment” in the near future. Coffman concluded that because the Hotel had since placed the furloughed employees back on the payroll, conducted regular meetings in preparation for its reopening, and continued to provide benefits, the employees had a reasonable expectation of reemployment in the near future and are therefore eligible to vote in the election.

Moreover, despite the NLRB’s longstanding policy that elections be conducted manually, Coffman directed a mail-ballot election in light of the “extraordinary circumstances” created by the COVID-19 pandemic. Employees in the unit who were employed as of June 15, 2020, including those who did not work due to illness, vacation, or temporary layoffs, are eligible to vote. Election ballots will be mailed on July 9, 2020. All ballots will be commingled and counted on August 14, 2020.

It is without question that the COVID-19 pandemic has burdened labor relations across the board. Indeed, the question of whether union elections should be postponed or held by mail during the ongoing pandemic has surfaced in numerous NLRB representation cases. Since the Board has left it up to the agency’s regional directors to determine whether elections will be held in person or by mail, the regional directors have almost always opted for the latter option.

For now, employer challenges to union representation elections during the COVID-19 pandemic may be futile. Employers considering adjustments to existing labor relations strategies in light of decisions made favoring vote by mail elections should consult with Stokes Wagner to determine how to best navigate labor relations through the challenges presented by the COVID-19 pandemic.

We will continue to monitor these important issues and provide regular updates. For a printable PDF of this article, Click here. Contact Stokes Wagner if you have any questions.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


On June 16, 2020, nearly seven weeks after the COVID-19 Right of Recall Ordinance was adopted by the Los Angeles City Council, the Department of Public Works, Bureau of Contract Administration, Office of Wage Standards (“OWS”) finally published long-awaited guidelines to help employers understand their new responsibilities under the Recall Ordinance.

Just as the County of Los Angeles begins reopening, the OWS guidelines, published two days after the Ordinance’s effective date, provide little additional clarity for employers seeking to comply with the Ordinance and avoid the intentionally harsh penalties that would result.

The OWS guidelines clarify the exception that managers and confidential employees are not covered by the Recall Ordinance by defining managerial and supervisory employees as those employees who have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other subordinate employees, or the responsibility to direct them, adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not merely of a routine or clerical nature, but requires the use of independent judgment. Confidential employees are those whose duties involve access to confidential information usually in regard to the employer’s labor relations.

But the guidelines also muddle the meaning of the Right of Recall. Specifically, the Ordinance language provides that an employer shall make an offer “of any position which is or becomes available after the effective dates of this article for which the Laid Off Worker is qualified.” (Sec. 200.32(A)). But Regulation No. 3 of the OWS guidelines say that an employer shall make the offer “if a position becomes available after the effective date of the Ordinance…” This subtle but important inconsistency leaves many employers questioning how they fill those positions that became available before the Recall Ordinance’s effective date of June 14, 2020 without putting themselves at risk of unnecessary and costly litigation.

Now that the ordinance is in effect, it still remains unclear whether furloughed workers or independent contractors fall within the definition of “Laid Off Worker”. If a Laid Off Worker declines the Recall offer of their original job, what then becomes the employer’s obligation under the Ordinance? Must the employer place the worker at the bottom of the recall list or must they offer a second position that does not require additional skill set training? What must an employer do if the worker responds to a Recall offer one date late versus ten days late? By simply restating most of the language from the Ordinance itself, the OWS guidelines create more questions than answers.

As employers begin reopening their businesses, facing a new economy and uncertain future, the OWS guidelines leave many City of Los Angeles employers in the dark at a time when guiding light is so desperately needed. We look forward to more answers and will continue to monitor the latest guidance available from OWS.

For a printable PDF of this article, click here. Contact Stokes Wagner if you have any questions.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


The recently enacted Paycheck Protection Program Flexibility Act of 2020 changes several provisions in the original PPP loan program enacted as part of the CARES Act. The PPPFA gives borrowers more flexibility and time to spend the PPP loan proceeds and allows the funds to be used on broader categories of expenses while still qualifying for loan forgiveness.

How much of the PPP loan needs to be spent on payroll costs?

  • The PPPFA reduced the payroll expense requirement from 75% to 60%.
  • This means 40% of the PPP loan funds may now be put towards overhead costs such as mortgage interest, rent, and utilities.
  • Word of Caution: The language of the PPPFA appears to suggest borrowers must spend at least 60% on payroll or no portion of the loan will be eligible for forgiveness. Congress has since indicated it did not intend to eliminate the sliding scale under the old PPP rules. Amendments to restore the sliding scale are anticipated. In the meantime, out of an abundance of caution, we recommend borrowers do not spend less than 60% on payroll until the fix has been made or until further guidance is issued from the federal government and/or the Small Business Administration (“SBA”).

How much time do I have to spend the PPP loan funds and still qualify for loan forgiveness?

  • The Covered Period has been extended to 24 weeks starting from the date of origination, or December 31, 2020, whichever is sooner.
  • To qualify for full loan forgiveness, borrowers using the new 24-week Covered Period must maintain payroll levels for the full 24-weeks.
  • Borrowers with existing PPP loans may choose to keep the original 8-week Covered Period. However, they will be required to maintain payroll levels through the original 8-week Covered Period in order to qualify for the full loan forgiveness amount. When do pre-pandemic employment and wage levels need to be restored?
  • The deadline for eliminating reductions in workforce and wages has been extended from June 30 to December 31, 2020.
  • Borrowers now have until December 31, 2020, to restore workforce levels and wages to pre-pandemic levels required for loan forgiveness.

Will the loan forgiveness amount be reduced if I can’t restore the original number of full-time employees?

  • No. The reduced-headcount penalty has been removed.
  • The loan forgiveness amount is now determined by, without regard to FTE headcount, documentation showing that the borrower was (1) unable to rehire former employees and unable to hire similarly qualified employees OR (2) unable to return to the same level of business activity due to compliance with federal guidelines related to COVID-19.
  • The SBA is expected to provide clarification as to what “documents” are necessary to satisfy this exception. When does the PPP loan mature?
  • For PPP loans with a remaining balance after an application for forgiveness has been made, the PPPFA establishes a minimum maturity of 5 years (instead of 2 years) for loans made after June 5, 2020.
  • For PPP loans taken out before June 5, 2020, the PPPFA allows lenders and borrowers to mutually agree to extend the loan term to 5 years.

When do I need to apply for PPP loan forgiveness?

  • Applications for PPP loan forgiveness should be submitted the day after the Covered Period ends or as soon thereafter. Don’t wait too long! Borrowers who fail to timely apply for loan forgiveness will be required to begin making loan payments 10 months from the close of the Covered Period.

I applied for PPP loan forgiveness; when do I start making payments?

  • For borrowers who submit a loan forgiveness application, PPP loan repayment is deferred until the date on which the SBA remits the loan forgiveness amount to the lender.

My lender issued a decision to forgive my PPP loan, can I still defer the payroll tax for the period from March 27 to December 31, 2020?

  • Yes! The PPPFA retroactively eliminates the restriction in the CARES Act, which prevented borrowers that received PPP loan funding from deferring additional payroll tax once the lender issued a decision to forgive the PPP loan.
  • Borrowers may now continue to defer the payroll tax for the entire period from March 27 to December 31, 2020, regardless of whether the PPP loan was forgiven during this period.

These changes apply to all PPP loans regardless of whether the PPP loan was taken out before or after the PPPFA was enacted, except for the change in loan maturity as indicated.

Note that the final date to apply for a PPP loan is still June 30, 2020. For a printable pdf, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


Not long after the City of Los Angeles enacted its “Right of Recall” ordinance, the County of Los Angeles shortly followed suit. The County Board of Supervisors recently adopted similar measures to establish a right of recall for hospitality workers and others throughout unincorporated areas of Los Angeles County that were laid off due to the COVID-19 pandemic.

Under both Los Angeles City and Los Angeles County Right of Recall Ordinances, priority must be given to laid-off workers whose most recent separation from active employment occurred on or after March 4, 2020, as a result of lack of business, reduction in force, or other economic, non-disciplinary reason. Both ordinances create a rebuttable presumption that any termination on or after March 4, 2020, was due to a non-disciplinary reason. Unlike the city, the county ordinance does not carve out managers, supervisors, or confidential employees.

Recall notices must be made in writing and provided by mail to the worker’s last known address, email, or text message. Workers have five business days to accept or decline the offer.

Positions must be offered to laid-off workers in the following order of priority:

If the laid-off worker:

  1. Held the same or similar position at the same site of employment at the time of the laid-off worker’s most recent separation from active service with the employer; or
  2. Is or can be qualified for the position with the same training provided to a new worker hired into that position. If more than one laid-off worker is entitled to preference for a position, the offer must go to the laid-off worker with the greatest length of service in the position, and then to the laid off-worker with the greatest length of service at the employment site.

Employers with collective bargaining agreements in place are exempt, as long as they contain a right of recall provision. But the county’s ordinance also allows ordinance provisions to be expressly waived by a collective bargaining agreement if the waiver is explicitly outlined in the agreement in clear and unambiguous terms.

These ordinances create a private right of action for laid-off workers in state court for violations. But employers must first be given notice of the alleged violation and allowed 15 days from receipt of the notice to cure. Potential relief may include hiring and reinstatement rights, lost pay and benefits, statutory damages, reasonable attorneys’ fees, and costs. Neither ordinance has an official end date.

For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


Yesterday California Governor Gavin Newsom signed Executive Order N-62-20, creating a rebuttable presumption that employees who test positive for COVID-19 within 14 days of working contracted the virus at work. Employers will have 30 days to rebut the claim by proving the employee contracted the virus elsewhere. This order puts a significant burden of proof on employers.

The Executive Order will remain in place for 60 days after the lift of the statewide stay-at-home order (Executive Order N-33-20). The Executive Order comes just as California prepares to enter “Stage 2” of the gradual reopening of the state this Friday.

The presumption is retroactive to claims filed as early as March 19, 2020.

For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.


The Los Angeles City Council on Wednesday passed the amended Right of Recall and Worker Retention ordinances that mandate businesses in the hospitality industry to rehire workers laid off during the COVID-19 pandemic. The ordinances were originally aimed at all businesses in Los Angeles but will now only apply to workers in hotels with more than 50 guestrooms, event centers, and airport service, as well as janitorial, maintenance, and security workers in commercial buildings. Restaurants, bars, and clubs are exempt, however workers of restaurants physically located on hotel property are also covered.

The recall ordinance will require employers in those industries to offer former workers their positions back based on seniority, in writing by mail, email, and text messages. Former workers will have five (5) days to respond to the employment offer. Managers and supervisors are specifically excluded from coverage. Significantly, the ordinance creates a private cause of action for qualified laid-off workers, including reinstatement, lost pay, benefits, and punitive damages.

The City’s retention ordinance requires employers to keep employees for ninety (90) days if a business changes ownership.

In his Wednesday address, Mayor Eric Garcetti announced that he had signed the right-of-recall ordinance and worker retention ordinance into law.

We will continue to monitor the ever-changing landscape and provide updates as new issues continue to develop as a result of the pandemic caused by the COVID-19 virus. Click here for more details on how the Right of Recall and Worker Retention ordinances will impact your Los Angeles based business and visit our website.

For a printable PDF of this article, click here.

THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.