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Michelle Barineau

Michelle Barineau counsels U.S. and multinational clients on a broad range of employment issues. Michelle routinely provides guidance pertaining to wage and hour compliance, job classifications, pay equity, and employee leave. She also prepares key employment documents including employment agreements, employee policies, and separation agreements.

Michelle guides employers through hiring and terminating employees and managing their performance, as well as workforce change strategies, including reorganizations, reductions in force, and WARN compliance. In addition, Michelle provides practical advice about workplace issues impacting employers including remote work, workplace culture, diversity, equity, and inclusion, and the use of artificial intelligence in the workplace. She helps clients navigate matters involving harassment, discrimination, non-competition, and other issues arising under state and federal employment laws including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. She assists clients when responding to agency charges and demand letters, including whistleblower retaliation complaints, and frequently interacts with the Equal Employment Opportunity Commission, state and local equal employment opportunity agencies, and the Occupational Safety and Health Administration.

Michelle has experience investigating employment complaints and she frequently partners with white collar colleagues to conduct sensitive internal investigations, workplace culture assessments, and racial equity audits. She works with colleagues in the privacy, employee benefits and executive compensation, and corporate groups when employment matters arise and she regularly works with colleagues in California to advise on matters implicating California employment laws. Michelle is a co-founder of Covington’s AI Roundtable, which convenes senior lawyers at the firm working closely on AI issues to discuss legal implications of AI deployment and use.

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On April 23, 2024, the U.S. Department of Labor (DOL) announced a final rule that increases the salary thresholds required to classify certain employees as exempt from overtime pay requirements under the Fair Labor Standards Act (FLSA).  The final rule, applicable to employees who otherwise satisfy the “white-collar” (bona fide executive, administrative, and professional) and “highly compensated” exemptions, is similar to the proposed rule DOL issued last August, although the salary thresholds in the final rule have been increased to align with the latest Census salary data.

The final rule represents a sharp increase—approximately 65%—from the current salary thresholds implemented in 2019 under the Trump Administration.  The rule is scheduled to take effect in two phases, with the first phase effective July 1, 2024 and the second on January 1, 2025.  Thus, employers have only a small window to determine how the rule will impact their operations and make any necessary adjustments.Continue Reading DOL Issues Final Rule Expanding Overtime Eligibility

On October 1, 2022, the District of Columbia’s new ban on non-compete agreements (the Ban on Non-Compete Agreements Amendment Act of 2020, as amended by the Non-Compete Clarification Amendment Act of 2022 (the “Act”)) went into effect. The final version of the Act is far less restrictive than originally anticipated and permits non-competes with highly compensated employees, non-competes paired with long-term incentives, and certain anti-moonlighting policies.

Key Takeaways

  • As of October 1, 2022, non-competes are prohibited in the District with limited exceptions.
  • Generally, employers can still enter into the following types of non-competes with District employees:
    • Non-competes with highly compensated employees that do not exceed one year; provided 14 days’ advance notice is given to the employee. 
    • Non-competes paired with a long-term incentive.
    • Non-competes entered into in connection with the sale of a business.
  • The Act permits specified workplace policies like confidentiality or non-disclosure policies, anti-moonlighting policies/outside employment restrictions, and conflict of interest policies. However, the employer must provide the policies to employees before October 31, 2022, within 30 days after acceptance of employment, and any time such policy changes.
  • Violations of the Act carry both administrative penalties and civil liability.
  • Prohibited non-compete agreements in effect before October 1, 2022, are not subject to the Act and remain in effect. However, employers should consult with legal counsel before amending these agreements.
  • Non-solicitations of customers and employees are not explicitly considered non-competes under the Act.
  • The Act does not apply to the terms of a valid collective bargaining agreement.

Continue Reading D.C.’s Scaled-Back Non-Compete Ban Is In Effect

The City and County of San Francisco (the “City”) has significantly amended its Family Friendly Workplace Ordinance (“FFWO”), which gives employees the right to make a written request for a flexible or predictable working arrangement to allow them to balance family caregiving responsibilities. The amended FFWO, which took effect on July 12, 2022, loosens employee eligibility requirements and expands employer obligations, including by providing that employers must provide a flexible or predictable work arrangement upon request unless the arrangement would impose an undue hardship on the employer. The FFWO continues to cover employers that have 20 or more employees and maintain a physical business location in San Francisco.Continue Reading San Francisco Expands Flexible and Predictable Workplace Requirements

In an effort to close gender and racial pay gaps, California Governor Gavin Newsom recently signed Senate Bill (SB) 973 to require certain California employers to submit an annual pay data report to the Department of Fair Employment and Housing (DFEH) starting next year. The new law largely mirrors the EEO-1 “Component 2” pay data reporting requirement, which was imposed by the Obama administration and has been suspended by the Trump administration.

Under SB 973, private employers that have 100 or more employees and are required to file an annual Employer Information Report (EEO-1) must submit a pay data report to the DFEH covering the prior calendar year. The report must include: (1) the number of employees by race, ethnicity, and sex in each of ten job categories (the same job categories used in the EEO-1); (2) the number of employees by race, ethnicity, and sex whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics; and (3) the total number of hours worked by each employee counted in each pay band. Employers with multiple establishments in California must submit a report for each establishment and a consolidated report that includes all employees. Employees include all individuals on payroll, whether full- or part-time, for whom the employer must withhold federal social security taxes and include in an EEO-1 Report.Continue Reading California to Require Annual Pay Data Reporting to DFEH

California Governor Gavin Newsom recently signed Senate Bill (SB) 1159, which adds COVID-19-related illness or death to the list of injuries covered under the state’s workers’ compensation program and creates new employer reporting responsibilities. The law codifies and extends Executive Order N-62-20, which was issued on May 6, 2020 and created a rebuttable presumption that employees with a COVID-19-related illness on or before July 5, 2020 contracted the virus at work and were eligible for workers’ compensation. The new law is retroactive to July 6, 2020 and expires on January 1, 2023.

Disputable Presumption for COVID-19 Cases During Workplace “Outbreaks”

Workers’ compensation generally provides benefits for employees who are injured or become ill in the course of their employment. Given the wide reach of COVID-19, however, it may be difficult to identify where the employee was exposed to the coronavirus for the purposes of showing that their exposure was caused by and arose out of their employment. In California, however, SB 1159 creates a “disputable presumption” that a COVID-19-related illness arose out of and in the course of employment, and is thus compensable, for employees who test positive during a COVID-19 “outbreak” at the employee’s “specific place of employment,” and whose employer has five or more employees. The new law specifies that workers’ compensation awarded for COVID-19 claims includes “full hospital, surgical, medical treatment, disability indemnity, and death benefits.”Continue Reading New California COVID-19 Workers’ Comp Bill Creates Disputable Presumption and New Reporting Requirements

Governor Newsom has signed Senate Bill (SB) 1383 to significantly expand the California Family Rights Act (CFRA).  The CFRA is California’s counterpart to the federal Family and Medical Leave Act (FMLA) and provides unpaid family and medical leave of up to 12 weeks for eligible employees.  The new law’s key revisions are summarized below and take effect on January 1, 2021.
Continue Reading New Law Expands California Family Rights Act

California Governor Gavin Newsom has signed Assembly Bill (AB) 1867, to create COVID-19 supplemental paid sick leave (CPSL) requirements for employers with 500 or more employees, filling a gap left by the federal Families First Coronavirus Response Act (FFCRA) which applies only to employers with under 500 employees.  The new law also codifies existing supplemental paid sick leave requirements for certain food-sector workers that were implemented in April under California Executive Order E.O. N-51-20.

AB 1867 took effect on September 19, 2020.  It will expire on December 31, 2020, although if Congress extends the emergency sick leave provisions of the FFCRA, the provisions of AB 1867 would automatically be extended for the same period.Continue Reading California Mandates COVID-19 Supplemental Sick Leave for Larger Employers

In a positive development for businesses, the National Labor Relations Board (NLRB) has published a final rule setting a new, stricter standard for determining joint employer status under the National Labor Relations Act (NLRA). The new rule, which takes effect on April 27, 2020, comes on the heels of a recent rule published by the Department of Labor narrowing the scope of joint employment under the Fair Labor Standards Act.

The new NLRB rule specifies that a business will be deemed a joint employer of another entity’s employees only if the business has “substantial direct and immediate control” over one or more essential terms of employment. Essential terms of employment are wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.Continue Reading NLRB Issues Final “Joint-Employer” Rule

Bolstering the state’s reputation for progressive employment legislation, California has become the first state to ban discrimination based on natural hair and protective hairstyles.  On July 3, 2019, California Governor Gavin Newsom signed into law SB 188, which amends the California Fair Employment and Housing Act (FEHA), specifying that…
Continue Reading California Bans Hairstyle Discrimination

On April 29, 2019, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued an opinion letter finding that “virtual marketplace company” workers (of an unnamed business) were independent contractors rather than employees.  While not binding, the opinion signals that DOL is taking a less aggressive approach than in recent years to the hot-button issue of worker classification in the online “gig economy.”  Companies with similar business models that link workers with consumers through technology platforms or “virtual marketplaces” — such as for transportation, delivery, moving, cleaning and household services — may be able to rely on the new opinion to establish a good-faith defense under the Fair Labor Standards Act (FLSA) of their classification of workers as independent contractors.
Continue Reading DOL Labels Gig Economy Company’s Workers as Independent Contractors