As we head into the summer months, employers with outdoor worksites in California may wish to review their Heat Illness Prevention Plans (HIPP) and obligations under Cal/OSHA’s outdoor heat illness prevention standard.

Covered Employers

As the name of the standard implies, Cal/OSHA’s outdoor heat illness prevention standard applies to all employers with an outdoor place of employment. Simply put, the standard applies whenever an employee is working outside. For example, a supermarket that assigns employees to gather shopping carts in the parking lot would be covered under this standard, even though the market itself is indoors.

Requirements for Covered Employers

Covered employers must take the following steps to prevent heat illness in the workplace:

  1. Train employees and supervisors on heat illness prevention.
  2. Provide enough “fresh, pure, and suitably cool” water so that each employee can drink at least 1 quart per hour and encourage them to do so.
  3. Ensure that timely access to shade can be provided upon an employee’s request.
  4. Encourage employees to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating at all times.
  5. Implement effective emergency response procedures related to heat illness.
  6. Closely observe employees that have been newly assigned to a high heat area for the first 14 days of employment, and all employees during heat waves.
  7. Develop and implement a written Heat Illness Prevention Plan.

The following industries must comply with additional high-heat illness prevention procedures:

  • Agriculture
  • Construction
  • Landscaping
  • Oil and gas extraction
  • Transportation and delivery of agricultural products and construction or other heavy materials, except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading

Written HIPP

Covered employers must have a written HIPP.  We generally recommend that this be a stand-alone document.  Cal/OSHA provides sample procedures for Heat Illness Prevention for employers to review and tailor to their specific work activities.

Cal/OSHA has many resources for employers to ensure compliance with heat illness prevention requirements, including an Enforcement FAQ.

If you have questions about the Cal/OSHA Heat Illness Prevention requirements or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Last November, the City of West Hollywood passed an ordinance implementing a new citywide minimum wage and leave requirement. It went into effect on January 1, 2022, for hotel employers and on July 1, 2022, for all other employers.

In response to public feedback on the ordinance, the City Council approved amendments on May 16, 2022.

The following amendments were implemented:

  • Previously, the calculation of the number of employees for purposes of coverage of the ordinance was based on the calculation of employees from 2019. In the amendment, the number shall be determined by the number of employees employed per quarter during the most recent calendar year. For new employers, an initial determination of size shall be based upon the actual number of hires at the time of opening.
  • In the original ordinance, employers were required to provide a cash payment once every 30 days for accrued compensated time over the maximum accrual. The amendment eliminates the cash payout requirement.
  • In the original ordinance, employers could only seek one-year waivers for the minimum wage requirements of the ordinance. The amendment extends the one-year waiver for financial hardship to compliance with the paid leave portions of the ordinance.

The City also published administrative regulations to assist in the implementation of the ordinance. The regulations provide guidance in areas such as:

  • Calculation of Number of Employees
  • Methods for Distribution of Compensated and Uncompensated Leave
  • Guidance for Application of Waivers for Certain Employers
  • Required Notices

Jackson Lewis continues to track employment regulations across the state. If you have questions about compliance with the new West Hollywood ordinance or related questions, contact a Jackson Lewis attorney to discuss.

Over the last 12 months, many employees have started to return to work at a worksite other than their home, even though some remain remote or partially remote. Employers may need a refresher on commute time for employees.

Under the California Wage Orders, hours worked are defined as the time during which an employee is subject to the control of the employer and includes the time the employee is “suffered and permitted” to work. Generally, this means that the time an employee spends commuting to and from the office or similar worksite is not compensable.

However, there are some circumstances where time spent commuting to a worksite may be deemed compensable. Here is a refresher on some of the issues with commute time.

Employer-Provided Transportation

In certain circumstances travel to a worksite via employer-provided transportation may be compensable. In a case from 2000, the California Supreme Court held that where the employer requires its employees to meet at a designated place, use the employer’s transportation to and from the worksite, and prohibits employees from using their own transportation, the time spent on the employer transportation would be compensable.

However, if the use of employer-provided transport is completely voluntary, the time spent is not compensable.

Longer Commute

Travel involving a substantial distance from the assigned workplace to a distant worksite to report to work on a short-term basis may be compensable. In part, it will depend on how long the new worksite is assigned.

According to the California Labor Commissioner, the travel time is measured by the difference between the time it normally takes the employee to travel from his or her home to the assigned worksite and the time it takes the employee to travel from home to the distant worksite. This could calculate to no compensable time if, for instance, the travel time is less from the employee’s home to the distant worksite than the employee’s normal commute.

No Regular Work Site

Some employees in certain occupations, by the nature of the industry and the occupation, are not assigned to a specific workplace and have a reasonable expectation that they will be routinely required to travel reasonable distances to job sites on a daily basis. If an employee has no regular job site, travel time to the new job site each day is not compensable.

As a reminder, compensation paid for drive time is separate from potential reimbursement obligations an employer may have for mileage and other business expenses when an employee travels for work.

If you have questions about commute time and compensation or related issues, contact a Jackson Lewis attorney to discuss.

In 2017, California started its stair-step climb to a $15.00 minimum wage, allowing smaller businesses with 25 employees or less to raise their minimum wage on a delayed schedule from larger businesses.  All employers regardless of size were scheduled to be at the same minimum wage of $15.00 per hour effective January 1, 2023.

However, buried in the minimum wage ordinance was an exception that would trigger an accelerated increase if the U.S. Consumer Price Index (CPI-W) exceeds 7 percent over a specified period of time.

Based on current projections, the CPI-W will have risen by 7.6 percent in the two-year period that ends in July. Accordingly, on May 12, 2022, when the Governor announced his proposal for a state inflation relief package, it was also announced that California’s minimum wage is now projected to increase to $15.50 per hour, rather than $15.00 per hour, on January 1, 2023, for all businesses regardless of size.

The minimum wage increase not only will affect hourly employees but will impact some exempt employees as well. In California, some exempt employees must receive a salary of at least twice the state minimum wage, in addition to meeting the general duties and other requirements.

Jackson Lewis continues to track legal changes that affect California employers. If you have questions about minimum wage or salary compliance or related issues, contact a Jackson Lewis attorney to discuss.

In a recent decision, the California Court of Appeal held that the doctrine of exclusive concurrent jurisdiction applies to a Private Attorneys General Act (PAGA) representative action in Shaw v. The Superior Court of Contra Costa County. The decision is good news for employers facing overlapping PAGA complaints.

Underlying Facts

On July 21, 2022, Plaintiff Shaw provided notice to the Labor and Workforce Development Agency (LWDA) under PAGA of alleged violations of the Labor Code against Beverages & More!, Inc (BevMo). Plaintiff alleged Labor Code violations based premised on a specific policy.  Over one year prior, however, Plaintiff Paez filed a PAGA action against BevMo regarding the same policy.

BevMo sought to stay the Shaw case under the doctrine of exclusive concurrent jurisdiction. Under the doctrine of exclusive concurrent jurisdiction, when two or more courts have subject matter jurisdiction of a dispute, the court that first asserted jurisdiction assumes it to the exclusion of other courts.

Shaw filed a petition to coordinate her action with the Paez action and asked for the appointment of her counsel as “liaison counsel” for the aggrieved employees. Shaw and BevMo agreed that the PAGA claims in Shaw’s case and the Paez case overlapped completely.

The trial court in Shaw stayed the action until either the Paez action was resolved, or the coordination motion was granted. The coordination motion was denied, as was Shaw’s motion to intervene in the Paez case.

Court of Appeal Ruling

The California Court of Appeal for the First Appellate District held that the trial court did not err in applying exclusive concurrent jurisdiction to the overlapping PAGA claim. The opinion held that there was no evidence of legislative intent to alter the common law.

Impact for Employers

While employers previously sought to abate or stay overlapping PAGA actions prior to Shaw, there had not been definitive authority that the doctrine of exclusive concurrent jurisdiction applied. This decision should help employers better manage overlapping PAGA matters by ensuring that the initial case can proceed before the latter filed overlapping actions.

If you have questions about PAGA or need assistance in managing overlapping PAGA actions, please contact Jackson Lewis’ California Class and PAGA Action team or the Jackson Lewis attorney with whom you regularly work.

At the end of April, the Cal/OSHA Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). The revised version of the ETS took effect on May 6, 2022.

As promised when passed, Cal/OSHA has released updated guidance to assist with this version of the ETS that expires January 1, 2023.

Cal/OSHA posted an update to the Revisions to the ETS FAQ. This FAQ details the changes in the May 6th version of the ETS and requirements from prior ETS that remain. There is a separate General COVID-19 ETS FAQ that responds more to the application of the ETS and has been updated to conform to the recent changes in the ETS.

The Cal/OSHA Isolation and Quarantine Fact Sheet has also been updated to reflect changes in the revised ETS. The Fact Sheet includes an easy reference table that explains when employees must be excluded from the workplace, depending on whether they test positive for COVID-19 or have close contact with positive cases.

Finally, the Cal/OSHA Fact Sheet on “What Employers Need to Know” has been updated for the amendments to the ETS that went into effect May 6th. The following is a summary:

  • Face Coverings – Face covering requirements are the same for all employees regardless of vaccination status and are no longer required in all indoor locations. The guidance now also defers to California Department of Public Health (CDPH) masking requirements.
  • Respirators – Employers must provide respirators to employees who request them for voluntary use regardless of vaccination status.
  • Cleaning and Disinfecting – The ETS no longer includes any cleaning and disinfecting requirements.
  • Testing and Exclusion
    • Employers are now required to make COVID-19 testing available at no cost and during paid time to employees with COVID-19 symptoms regardless of vaccination status and regardless of whether there is a known exposure. COVID-19 testing must also be made available to employees who had a close contact in the workplace, during outbreaks, and during major outbreaks.
    • The detailed prescriptive requirements for exclusion of employees after close contact have been deleted. Instead, employers must review CPDH guidelines for individuals who had close contact and implement quarantine and other measures in the workplace to prevent COVID-19 transmission in the workplace.
    • The requirements for employees who test positive for COVID-19 have been updated to reflect the most recent CDPH isolation and quarantine guidelines. Regardless of vaccination status, positive employees can return to work after 5 days if the employee has a negative test, symptoms are improving, and they wear a face covering at work for an additional 5 days. Otherwise, most employees can return after 10 days.
  • Definitions
    • “Close contact” and “infectious period” are now defined so that their meaning will change if CDPH changes its definition of the term in a regulation or order. This will allow more flexibility and consistency with CDPH.
    • “COVID-19 test” was simplified to make it easier to use self-administered and self-read tests. A video or observation of the entire test process is no longer necessary; just a date/timestamped photo of the test result will now be sufficient.
    • “Fully vaccinated” was deleted as this term is no longer used in the regulations. All protections now apply regardless of vaccination status and requirements do not vary based on an employee’s vaccination status.

If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Under California law, employees normally accrue daily overtime for hours worked over 8 hours in a day. Alternative workweek schedules (AWS) permit workplaces to adopt different schedules longer than 8 hours without accruing overtime. This may be needed due to health and safety concerns or industry practices that mandate longer shifts. It may also be desired to provide employees with greater flexibility by shortening the overall workweek.

However, the process is not as easy as the company unilaterally deciding to have an AWS. California requires specific steps to be followed for a valid AWS.

Is an AWS right for your workplace?

An initial consideration is whether the business needs flexibility in scheduling its workers. An AWS may not work for employers who need to vary employees’ work hours or days worked.      An AWS must be a fixed schedule of days of the week and start and end times, which can be rotational shift schedules or seasonal shift schedules as long as they are “regularly recurring.”

Does the AWS process apply to your business?   

The business must determine if the work unit seeking an alternative workweek arrangement is permitted to elect an AWS. Only employees whose work falls under Wage Orders 1 through 13, 16, and 17 are permitted to have AWS. Even if the work falls under a wage order that allows for AWS, there are differences within the orders in the types of schedules that may be adopted and in the election procedures. A business must determine the appropriate procedures for the business unit seeking the AWS.

What steps does a business need to take to have an AWS? 

The following is a general overview of the AWS process but does not provide comprehensive detail of all steps.

The business must identify employees eligible for the AWS. The Labor Code defines a “work unit” as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision. A work unit may even consist of an individual employee as long as the criteria for an identifiable work unit are met.

The business will then proceed with an AWS election. This is a multistep process that allows employees to vote on whether to adopt an AWS.

In this process the employer provides the affected work unit or units with a proposal of the AWS in writing, designating the number of days in the workweek and the number of hours in the work shift.

Then the employer must hold a pre-election meeting with the affected business unit a minimum of 14 days prior to the election to discuss the effects of the proposed AWS. If any affected employees do not attend the meeting, the proposal must be mailed to those employees.

After the 14 days have elapsed from the initial pre-election meeting, the employer must hold a secret ballot election. The election must be held during regular working hours at the employees’ work site and cost paid by the employer.  At least two-thirds of the affected work unit must vote in favor of the AWS in order for it to be adopted.

If two-thirds of the work unit vote in favor of the AWS, the results must be reported to the California Department of Industrial Relations (DIR) within 30 days of finalizing the results.

The company must also give notice to the affected workers and provide a specific date on which the AWS will be implemented. The implementation date must be at least 30 days after the announcement of the final results of the secret ballot.

What Kind of Records Must Be Kept?

An employer implementing an AWS should maintain all copies of the proposals, employee meeting communications, and election results. The employer should also keep other supporting information and documentation.

Other Considerations

It is important to keep in mind that the implementation of an AWS has no impact on California meal or rest break requirements.  Employers must still adhere to the same meal and rest period timing and provisions.

Further, an AWS does not completely eliminate the employer’s obligations to pay overtime.  For example, if the employee on an AWS works beyond or less than the scheduled hours of the agreed-upon AWS, the employee may be entitled to overtime or double-time pay.

If you have questions about implementing an AWS or related issues with overtime in California, contact a Jackson Lewis attorney to discuss.

Early in the 2022 Legislative Session, Assembly Bill (AB) 2932 was introduced and was known as the four-day workweek bill.  It sought to change when an employee would be paid one and one-half times their regular rate of pay by redefining the workweek.

Under current California law, overtime may be earned at one- and one-half times the employee’s regular rate of pay for: (1) any work in excess of 8 hours in a workday; (2) any work in excess of 40 hours in any one workweek; and (3) the first 8 hours worked on the 7th day of work. In addition, all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek are paid at double the regular rate of pay.

AB 2932 proposed that employees would be paid one- and one-half times their regular rate of pay for work in excess of 32 hours in a workweek instead of 40 hours. The bill would have allowed employers with less than 500 employees to continue paying overtime rates after 40 hours in a workweek.

AB 2932 received lots of attention for the drastic change from both California and federal law as to when overtime accrues. However, the bill is now on hold as it failed to meet committee deadlines for consideration.

While the bill won’t proceed this year, employers should watch as it could be amended or reintroduced in 2023.

Jackson Lewis continues to track legislation that affects employers in California and across the nation. If you have questions about compliance with overtime requirements and related issues, contact a Jackson Lewis attorney to discuss.

In 2020, the California legislature considered a bill in which employers would be required to provide employees with bereavement leave, but the legislation didn’t make it to the Governor’s desk.

Assembly Bill (AB) 1949 reintroduces the idea of mandatory bereavement leave and expands the allowance from the 2020 proposal. AB 1949 would make it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave upon the death of a family member, including a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. AB 1949 would require that leave be completed within 3 months of the date of death. The bill would also require the employer to maintain employee confidentiality relating to bereavement leave.

The bill would require that leave be taken pursuant to any existing bereavement leave policy of the employer. Under the bill, in the absence of an existing policy, the bereavement leave would be unpaid, however, the bill would authorize an employee to use certain other leave balances available to the employee, including accrued and unused paid sick leave. If an employer’s existing leave policy provides for less than 5 days of bereavement leave, the bill would require the employer to provide a total of at least 5 days of bereavement leave to employees.

AB 1949 would not apply to employees who are covered by a valid collective bargaining agreement that provides for prescribed bereavement leave and other specified working conditions.

Jackson Lewis will continue to track legislation that affects employers. If you have questions about leave requirements in California or related issues, contact a Jackson Lewis attorney to discuss.

While April has meant the return to the office for many employees across the state, many are remaining remote despite the lifting of statewide COVID-19 restrictions.

Employers with remote employees in California need to ensure they are complying with the state’s employment laws when it comes to those working from home. For purposes of the state’s wage and hour laws, the home office is generally treated the same as the regular office.

California Labor Code Section 2802 requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” For remote employees, what an employer may need to reimburse could include internet and cell phone services. Prior California court decisions have concluded employers must reimburse for reasonable portions of an employee’s cell phone use when the employee uses their cell phone for work. However, reimbursement may not be required when an employer provides devices to employees, even if the employee ultimately elects to use their own personal device.  Certain reimbursements may also not be required for those employees who have the option to work in the office and voluntarily choose to work from home.

Tracking time for employees who are not exempt from overtime becomes even more important for remote employees. California’s wage orders define hours worked as “the time during which the employee is subject to control of the employer” regardless of whether work is being performed.  Moreover, the Wage Orders require employers to track all time worked, specifically when the employee “begins and ends each work period” and all meal periods.

California’s meal and rest period requirements also apply to employees who are working remotely. “Non-exempt employees are entitled to a 10-minute paid rest period for every 4 hours worked (or major fraction thereof).” Employees must also receive a 30-minute unpaid meal break for every five hours worked. Though meal and rest periods may be hard to track for a remote employee, it is important that employers communicate with the employees the company’s policy and check in with employees to ensure compliance.

If you have questions about compliance with California employment law and remote employees contact a Jackson Lewis attorney to discuss.