As more counties move toward the Orange Tier on the state reopening guidance, businesses can reopen or operate under less restrictive requirements. This may mean employers need more employees than in the last several months. Though last year, the Governor vetoed a statewide right of recall requirement, several cities still have ordinances in place.

The following cities still have a right of recall ordinance related to COVID-19:

City Covered Employers
Long Beach

·  Commercial property employers that provide janitorial services (25 or more employees)

·  Hotel employers (25 or more employees)
 Los Angeles

·  Airport employers

·  Commercial property employers that employ 25 or more janitorial, maintenance, or security service workers

·  Event center employers

·  Hotel Employers
Oakland

·  Airport hospitality employers

·  Event center employers

·  Hotel employers

·  Restaurant employers (more than 500 employees)
Pasadena ·  Hotel employers
San Diego

·  Commercial property employers

·  Event center employers

·  Hotel employers
Santa Clara

·  Building service employers

·  Food service employers

·  Hotel employers

Most of the ordinances require covered employers to offer available positions to qualified employees who were previously laid off due to pandemic mandated closures. Typically, such offers are to be made to employees based on seniority and/or length of service with the Company. Each ordinance requires covered employers to provide employees with a certain period to accept or decline rehire before the employer offers the position to another former employee with less seniority or opens the position to new employees. Covered employers should review the rehire requirements in their locations to ensure they are complying with the various requirements specified.

San Francisco’s right of reemployment recently expired, but the Board of Supervisors is considering a replacement ordinance.

If you have questions on right of recall ordinances or other issues regarding rehire of employees, contact the authors or the Jackson Lewis attorney with whom you regularly work.

While many employers may be familiar with the requirement to provide harassment training, including training regarding the handling of internal complaints, what to do when a complaint is received may be less clear.

Fortunately, the Department of Fair Employment and Housing (DFEH) has a harassment prevention guide for California employers.

The DFEH’s guide provides steps for conducting a fair investigation, including:

  • Conducting a thorough interview with the complaining employee;
  • Giving the employee accused of inappropriate conduct an opportunity to explain their perspective;
  • Interviewing relevant witnesses and reviewing relevant documents; and
  • Taking other investigatory steps as may be necessary to determine facts, such as visiting work sites or reviewing video.

The person conducting the investigation should reach a reasonable and fair conclusion based on the information collected and reviewed during the investigation.

The DFEH encourages that the person selected to conduct the investigation be impartial. While an employer may engage Company employees to conduct workplace investigations of other employees, an employer may also hire an outside investigator if concerns of impartiality or bias arise. In California, external investigators must be licensed private investigators or attorneys acting in their capacity as an attorney.

Whether an outside investigator or an internal employee, the investigator must document witness interviews and any other steps taken to investigate, as well as their findings. Employers should retain all documentation received from an investigator.

Whether an attorney is conducting the investigation or an internal employee, the investigator is recommended to reach factual conclusions, not legal conclusions. However, the DFEH’s guide notes that an internal investigator may sometimes conclude whether behavior violated a Company policy. This is not the same as determining that a person violated the law.

Once the investigation is completed, California regulations require that the employer take appropriate remedial steps if misconduct has been found. Employers are required under California law to prevent and correct unlawful behavior. The DFEH states that, in order to meet this obligation, an employer should:

  • Stop behavior before it rises to the level of unlawful conduct;
  • Impose remedial action commensurate with the level of misconduct and that discourages or eliminates recurrence; and
  • Determine what the Company has done in the past in similar situations, to avoid claims of unfair remedial measures.

If you have questions about conducting internal workplace investigations or need to retain an attorney to assist with a workplace investigation, contact a Jackson Lewis attorney to assist.

As an employer in California, you probably know that the Fair Employment and Housing Act (“FEHA”) requires employers with five or more employees to provide reasonable accommodations for applicants and employees with a physical or mental disability. A reasonable accommodation allows an applicant to have an equal opportunity to be considered for the job and allows an employee to be able to perform the essential functions of the job.  A reasonable accommodation is not required if it is an undue hardship to the employer.

The critical, first step in providing a reasonable accommodation is to have a dialogue with an applicant or employee. This dialogue is often referred to as the “interactive process.” Here is what we, as litigators, want employers to know about the interactive process.

Employers must engage in a “timely, good faith” dialogue with an applicant or employee. First, employers should document when a request for reasonable accommodation is received, when the interactive process is initiated, and any discussions between an employer and applicant or employee about the requested accommodation.  If there is subsequent litigation over this issue, this documentation may be helpful evidence to prove that the employer “timely” engaged in the interactive process.

Second, it is important that employers document all potential reasonable accommodations identified and considered. Even if a suggested accommodation cannot be provided because it would result in an undue hardship, it is important to show that the employer evaluated the proposed accommodation as part of the interactive process.  Evidence of other potential accommodations and the effectiveness of those alternatives can be used to show that the employer acted in “good faith” when engaging in the interactive process.

After providing a reasonable accommodation to an applicant or employee, the employer should confirm that the accommodation is effective. For employees, this may mean periodic or ongoing checks to see if the accommodation is still effective. And employers should document these follow-up inquiries. If an accommodation is not meeting an employee’s needs, the employer and employee should re-open the interactive process dialogue to consider other potential accommodations.

Finally, employers should ensure they are handling accommodation issues as confidentially as possible. While it may be obvious that an employee has been provided certain accommodations, the underlying medical or disability issues, and the work-related limitations, should be kept confidential.

The California Department of Fair Employment and Housing has issued a model packet for documenting the process, including follow-up with an applicant or employee.

If you have questions about engaging in the interactive process with an applicant or employee or providing reasonable accommodations, please contact your regular attorney at Jackson Lewis or the authors of this article to discuss.

On the anniversary of California’s statewide shelter-in-place orders, Governor Newsom signed legislation bringing back the statewide COVID-19 Supplemental Paid Sick Leave.

The new statute requires employers to display a required poster issued by the California Labor Commissioner and which the Labor Commissioner issued on March 22, 2021. Like prior required posters, the notice includes covered leave reasons and the amount of time eligible employees are entitled. If employees do not frequent the workplace, employers may satisfy the notice requirement by disseminating via electronic means, including e-mail. The statute provides a 10-day grace period until March 29, 2021, for employers to comply but should disseminate or display the poster as soon as feasible.

Read the full article on Jackson Lewis Disability, Leave & Health Management Blog. 

In 2018, the California legislature passed Assembly Bill 2455 (“AB 2455”), which required the Department of Social Services to provide labor organizations registered home care aids’ contact information to assist with organizing efforts of the home care workforce.

Two industry groups, the Home Care Association of America and the California Association for Health Service at Home (“Associations”), whose members employ home care providers, filed suit in federal court to block the law.

This month, the federal district court heard dueling motions for summary judgment in the case. The Associations argued that the bill was preempted by the National Labor Relations Act (“NLRA”). In a lengthy order, the district court considered the two potential avenues for preemption under San Diego Building Trades Council v. Garmon (Garmon) and Machinists v. Gonzales (Machinists). For disclosure to be preempted under Garmon, the NLRA or its integrated scheme of regulation would have to govern when and how labor unions can collect contact information of potential members in all contexts. However, the district court found there was no broad regulatory structure that prevented contact information from being supplied outside the context of an election conducted by the NLRB. Further, the court found that laws like AB 2455, which promote open communication, do not intrude on the zone of free negotiation protected by Machinists preemption.

Based on the findings, the district court denied the Associations’ motion for summary judgment and granted the State’s motion, thereby declining the Associations’ requested injunction against AB 2455.

What does the outcome of this case mean for the home health care industry? After the legislation was passed, many foresaw an increase in unionization efforts in the home care industry. This seems even more likely in light of the COVID-19 pandemic effect on the industry. The Associations may appeal the district court’s decision and continue their attempts to block the legislation in the future.

Jackson Lewis will continue to track developments regarding AB 2455 and related legislation. If you have questions about AB 2455, or issues pertaining to labor and employee unionization, contact a Jackson Lewis attorney to discuss.

Governor Newsom has signed Senate Bill 95, which resurrects the statewide COVID-19 Supplemental Paid Sick Leave that expired at the end of 2020. The bill takes effect immediately but provides a 10-day grace period for employers to start providing sick leave. The new law also applies retroactively to January 1, 2021 and will remain in effect until September 30, 2021.

What employers are covered?

The new law applies to employers in the state of California with more than 25 employees.

Which employees are eligible?

Employees who are not able to work or telework for any of the reasons detailed in the legislation qualify for the paid leave. There is no length of service requirement for the leave entitlement provided under the new law.

When can employees take leave?

Employees are entitled to leave for the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and seeking medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

How much leave are employees entitled to?

Full-time employees are entitled to 80 hours of COVID-19 supplemental paid sick leave. Full-time is defined as either an employee who is classified as full-time by the employer or who was scheduled to work, on average, 40 hours or more per week in the two weeks preceding the date on which leave is taken.

If an employee is not classified as full-time, the employee’s schedule and length of employment will determine the amount of their leave entitlement as follows:

  • An employee with a regular schedule is entitled to the total number of hours the employee is normally scheduled to work for the employer over two weeks.
  • An employee with a variable schedule is entitled to 14 times the average number of hours the employee worked each day for the employer in the six months preceding the leave.
  • An employee with a variable schedule who has worked for the employer for 14 days or less is entitled to the total number of hours the employee has worked for the employer.

The rate of pay for the leave for non-exempt employees shall be calculated by the highest of the following:

  • The employee’s regular rate of pay for the workweek in which the employee uses the leave.
  • A formula of dividing the covered employee’s total wages not including overtime by the employee’s total hours worked in the full pay period of the prior 90 days of employment
  • The state minimum wage
  • The local minimum wage to which the employee is entitled

For exempt employees, the leave will be paid at the rate that the employer calculates wages for other forms of paid leave time.  The amount paid for supplemental paid sick leave is capped at $511 per day and $5,110 in aggregate.

Due to the retroactive effect of the legislation, employers will need to consider retroactive payments for leave. Any retroactive payment of leave must be paid on or before the payday for the next full pay period after the oral or written request of the employee.

Employers who provided supplemental paid sick leave on or after January 1, 2021 (or April 1, 2021, if the employee qualifies as a home health care provider), under local COVID sick leave ordinances or a COVID specific employer policy may be able to count such hours towards satisfaction of the requirements under this new legislation.

Notice Requirement

Employers will need to provide employees with notice of this new law.  The new law states the Labor Commissioner’s office will release a model notice within 7 days of the passing of the bill.  Employers will also need to provide employees (other than home health care providers) with written notice of available leave balances.  For employees who work a variable schedule, this leave balance notice can be satisfied by performing an initial calculation of hours and indicating “(variable)” next to that calculation.

Jackson Lewis continues to track COVID-19 legislation affecting employers. If you have questions about the new supplemental paid sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

Just as current and former employees are entitled to inspect their personnel file, Labor Code Section 226(c) entitles current and former employees to request copies of wage statements. Often these requests occur when an employee has filed a claim or intends to file a claim. As such, the employers must have compliant wage statements to respond to these requests.

This is what litigators would like employers to know about wage statements.

The Basics

According to the California labor code, an itemized wage statement must have the following:

  • Gross wages earned
  • Total hours worked (not required for salaried exempt employees)
  • The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis
  • All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item)
  • Net wages earned
  • The inclusive dates of the period for which the employee is paid
  • The name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number
  • The full and correct name and address of the legal entity that is the employer
  • All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee

The California Labor Commissioner’s office has provided a sample itemized wage statement for non-exempt employees and employees paid a piece rate.

When and How to Provide Wage Statements

Under the Labor Code, employees are entitled to an itemized wage statement semimonthly or every time they are paid wages, whether by check, direct deposit, or otherwise.

The California Labor Commissioner has stated that employers may provide electronic wage statements so long as each employee retains the right to elect to receive a written paper stub or record and that those who are provided with electronic wage statements retain the ability to easily access the information and convert the electronic statements to hard copies at no expense to the employee. Electronic wage statements must incorporate proper safeguards to ensure the confidentiality of employee’s confidential information.

Maintaining Employee Wage Statements

Employers must maintain pay records for at least three years pursuant to Labor Code sections 226 and 1174. However, litigators would prefer employers maintain records for at least four years because of the potential for claimants to bring claims that extend the full lookback period for wage and hour claims in California.

Maintaining compliant wage statements may not prevent employees from asserting a legal claim but doing so will assist an employer’s attorney with the defense of such claims.

If you have questions about employee wage statements or related concerns pertaining to wage and hour issues contact a Jackson Lewis attorney to discuss.

Here we go again! On March 15th, 2021, the California Department of Justice (“Department”) announced approval of modifications to the California Consumer Privacy Act’s (CCPA) regulations, originally introduced in December of 2020.  The new regulations mainly modify provisions related to a consumer’s right to opt out of sale of their personal information, with the aim of “protecting consumers from unlawful business practices that may be deceptive or misleading”.  The changes to the regulations are effective immediately.

“California is at the cutting edge of online privacy protection, and this newest approval by OAL clears even more hurdles in empowering consumers to exercise their rights under the California Consumer Privacy Act,” said Attorney General Becerra in the press release announcing the latest modifications to the CCPA regulations. “These protections ensure that consumers will not be confused or misled when seeking to exercise their data privacy rights.”

Read the full article at Jackson Lewis Workplace Privacy, Data Management & Security Report.

All the way back in 2016, California passed legislation that employers who do not sponsor an employee-retirement plan must participate in a state-run retirement program. This program became known as CalSavers.

While there have been legal challenges to CalSavers, the program persists. The pilot phase of CalSavers launched in 2018 and the phase-in period started in 2020.  CalSavers provides an opportunity for employees to defer wages, through payroll deductions by the employer, to a state-run individual retirement savings account program. An employer is not required to participate in CalSavers if it sponsors or participates in a retirement plan such as a 401(k) plan or pension plan. In order to be exempt from CalSavers, an employer may sponsor a retirement plan for any of its employees; California employees need not be covered by the retirement plan in order for the employer to be exempt.

Last year, employers with over 100 employees received a small reprieve and had their deadline to adopt a retirement plan and file an exemption or enroll in CalSavers, extended to September 2020. However, to date, employers with 50 or more employees still have a deadline of June 30, 2021, and employers with 5 or more employees have a deadline of June 30, 2022.

Employers who fail to comply with the requirements of the California mandate may be fined by the California Franchise Tax Board. As such, it is important for employers with employees in California to either adopt a retirement plan and file an exemption or register with CalSavers in order to ensure they are in compliance by the applicable deadline.

If employers have questions about California’s retirement plan mandate or about employee benefits, contact a Jackson Lewis attorney to discuss.

With the recent expansion of the California Family Rights Act (CFRA), employers who previously were not covered under CFRA now find themselves having to navigate the murky waters of the law.  From the basics such as who exactly is eligible for CFRA leave to the more complicated issues dealing with how CFRA works for pregnant employees, employers without experience in these matters could find themselves stepping on a proverbial land mine.

Covered Employers

Effective January 1, 2021, private employers of 5 or more employees within the United States are covered by CFRA. CFRA also applies to the California state and local governments as employers.

Covered Reasons for Leave

Eligible employees may take up to 12 weeks of CFRA leave for the following reasons:

  • Care for their own serious health condition;
  • Care for certain family members’ serious health condition;
  • To bond with a new child (by birth, adoption, or foster placement);
  • For a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, registered domestic partner, child, or parent in the Armed Forces.

Eligible Employees

To be eligible for CFRA employees must meet 2 requirements: (1) the employee must have worked for the covered employer for more than 12 months and (2) The employee must have worked at least 1,250 hours in the 12 months prior to their leave.

The requirement that the employer has at least 50 employees within 75 miles of the employee’s worksite was eliminated effective January 1, 2021.

If you have questions about CFRA or other issues related to California leave, contact a Jackson Lewis attorney to discuss.