California employers are required to post their annual summary of work-related injuries and illnesses, in a visible and easily accessible area at every worksite from February 1st through April 30th. Cal/OSHA’s Form 300A must be used for this posting.

Employers can find an overview regarding completing both the log (Form 300) and the annual summary (Form 300A) on Cal/OSHA’s Recordkeeping Overview page.

Cal/OSHA requires employers to record work-related fatalities, injuries, and illnesses. To be recordable under Cal/OSHA’s regulations, an injury or illness must be work-related and result in one of the following:

  • Death;
  • Days away from work;
  • Restricted work or transfer to another job;
  • Medical treatment beyond first aid;
  • Loss of consciousness; or
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

While Cal/OSHA will soon be moving to a slightly less restrictive Non-Emergency COVID-19 Standard for workplace health and safety requirements, any work-related COVID-19 fatality or illness that falls under the above criteria must be recorded on an employer’s Form 300, 300A, and 301, or equivalent forms.

Certain employers are required to annually electronically submit Form 300A data to Cal/OSHA by March 2nd. Covered employers are those that meet one of the following requirements:

  • Has 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations; or
  • Has 20 to 249 employees in the specified industries listed including Agriculture, Manufacturing, and Grocery Stores. For a full list of covered industries, employers can review Appendix H.

Information on how to make the electronic submission is available on the federal OSHA’s Injury Tracking Application website.

If you have questions about preparing your annual summary or need assistance with compliance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Among the many challenges employers face in enforcing employment arbitration agreements in California are employees arguing that they are not bound by the agreement because they do not recall signing it, even when the agreement contains their signature.  A California Court of Appeal decision recently shot down this argument, holding that an employee cannot evade an arbitration agreement with a handwritten signature by simply saying, “I don’t recall.”       

The Case

In Iyere v. Wise Auto Group, the plaintiffs were two sales consultants and a sales manager.  After the plaintiffs filed suit against their former employer, Wise Auto Group (Wise) filed a motion to compel arbitration that included copies of the arbitration agreement with handwritten signatures of each plaintiff.

To oppose the motion, the plaintiffs submitted declarations stating that they received a large stack of documents on their first day of work, they were told to sign the documents quickly, and they signed the documents as instructed without ever receiving a copy of the signed documents back.  The plaintiffs also specifically asserted in their declarations that they “do not recall ever reading or signing any document entitled Binding Arbitration Agreement or Employment Acknowledgment, [they] do not know how [their] signature was placed on [either document],” and they would not have signed either document had they understood that the documents waived their right to sue Wise in court.

The Court of Appeal did not let the plaintiffs off the hook.  The Court of Appeal found that the plaintiffs had not submitted admissible evidence creating a dispute as to the authenticity of their signatures on the arbitration agreements. The Court noted that while the plaintiffs declared they did not “recall” reading or signing the arbitration agreement, this was still consistent with the rest of their declarations where they acknowledged that they quickly signed a large stack of documents on their first day of work.  The Court concluded that absent evidence that their signatures were forged or otherwise inauthentic, the plaintiffs failed to show that the arbitration agreements were not authentic and unenforceable.

Notably, in reaching its conclusion, the Court of Appeal disagreed with the comparison of the instant case with two cases involving electronic signatures, stating that “[w]hile handwritten and electronic signatures once authenticated have the same legal effect, there is a considerable difference between the evidence needed to authenticate the two.”  The Court explained that a party that is not able to confirm their handwritten signature is inauthentic or forged in an arbitration agreement cannot create a factual dispute regarding the authenticity of the signature by simply stating that they cannot recall signing the agreement.

Further, the Court of Appeal held that even if an employee’s assertion that they do not recall signing the arbitration agreement can shift the burden back to the employer to authenticate the agreement, Wise satisfied its burden by producing a declaration from its custodian of records identifying the agreement. The Court of Appeal rejected a common objection made by plaintiffs’ attorneys to such evidence based on the argument that a custodian of records lacks personal knowledge of the agreement since they were not personally present when the agreement was signed.  The Court succinctly explained that a “custodian of a document need not have been present or employed when the document was created or signed to authenticate a document in a company’s files.”

Key Takeaway

The Court of Appeals decision may aid employers seeking to enforce arbitration agreements by thwarting employees who attempt to dodge their arbitration agreements by submitting a declaration that merely states, “I do not recall signing,” especially where the arbitration agreement contains the employee’s handwritten signature.   

If you have questions about employment arbitration agreements or related issues, please contact a Jackson Lewis attorney to discuss.

When Senate Bill (SB) 1162 was signed in 2022, much of the focus was on the new pay transparency requirements. However, the bill also amended pay data reporting requirements in California. Under the amendments covered employers would need to submit separate pay data reports for employees hired through labor contractors. In addition, reporting would need to include the median and mean hourly rate for each combination of race, ethnicity, and sex for each job category for both traditional employees and those hired through labor contractors. But that was as much detail as the initial bill provided. 

At the end of 2022, the Labor Commissioner’s Office (DLSE) published FAQs for the pay transparency portion of SB 1162. The Civil Rights Department (CRD) has now published updated FAQs for Pay Data Reporting.

The updated Pay Data Reporting FAQs provide clarity that many employers were waiting for, including the following new information:

  •  Employers must submit a separate pay data report for workers hired through a labor contractor when the work performed is within the client employer’s usual course of business. This aligns with the reporting obligation to mirror the state’s “ABC test” to evaluate if a potential independent contractor is an employee under California law..
  • Confirmation of the Snapshot Period for “employees hired through labor contractors.” As with payroll employees, the “Snapshot Period” for labor contractor employees is a single pay period between October 1 and December 31 of the Reporting Year.  There was uncertainty about whether this period would be broader due to the often transitory nature of labor contractor employees. 
  • Mechanics of reporting “employees hired through labor contractors.”  Employers must list the number of labor contractor employees (and the aggregate number of hours they worked in 2022) by establishment, job category, race/ethnicity, sex, and pay band. 
  • Methods of calculating the median and mean hourly wages.  The calculation is based on the employee’s total hours worked and total pay received in 2022—it does not use the employee’s hourly wage in the employer’s Human Resource Information System (HRIS) data.
  • The pay data that labor contractors must provide to employers for “employees hired through labor contractors.”  Employers are expected to only report the portion of a labor contractor employee’s annual wages and hours worked attributable to work performed for that employer.  It is the labor contractors’ burden to divide this pay and hours worked information for the employer. 
  • Obligation to provide race/ethnicity and sex data for “employees hired through labor contractors.”  While the legislation clearly provides that labor contractors must provide employers with the necessary pay data for the labor contractor employee report, there was ambiguity on whether this would include demographic information.  According to the Pay Data FAQs, the obligation to collect and report on labor contractor employee race/ethnicity and sex data seems to fall on the employer.  Although, the FAQs make clear that the Civil Rights Division is permitting employers to report unknown race/ethnicity or sex for labor contractor employees when that information is unknown and not reasonably obtainable before the filing deadline—but this leeway is not expected in future years. 

The FAQs also include other information related to employers covered by the pay data reporting requirements and respond to other questions related to how to report that was published prior to the amendments to the data reporting requirements.

In addition to the FAQs, the CRD’s pay data reporting page includes a user guide for the portal, excel templates, and related resources for employers, and additional pay data reporting resources are expected by February 1, 2023. 

If you need assistance with California Pay Data Reporting or related issues, contact a Jackson Lewis attorney to discuss.

While the Secretary of State continued to count signatures to determine if a potential referendum challenging the FAST Recovery Act (AB 257) will make it on the ballot, the Sacramento Superior Court has issued a preliminary injunction prohibiting the implementation or enforcement of AB 257.  The injunction will remain in effect unless and until either: 1) county election officials and the Secretary of State determine that the referendum petition failed to qualify for the ballot; or 2) a majority of voters defeat the referendum and approve the FAST Recovery Act in the 2024 election.

The preliminary injunction, which followed a temporary restraining order granted on December 30, 2022, is a victory for Save Local Restaurants, a coalition of California small business owners, restaurateurs, franchisees, and related entities that brought the petition to enjoin enforcement of the FAST Recovery Act.  

Governor Newsom signed AB 257 into law in September 2022. If it ultimately goes into effect, it will establish a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials within the Department of Industrial Relations that will set industry-wide standards for wages, working hours, and other working conditions related to the health, and safety of fast food workers.

Jackson Lewis will continue to track developments related to the FAST Recovery Act. If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

The California Employment Development Department (EDD) has released the Voluntary Plan Employee Contribution and Benefit Rates for 2023.

Employers with employees located in California are generally required to withhold and send state disability contributions to the EDD.

The 2023 rates are as follows:

“Employee Contribution Rate”0.9%
“Taxable Wage Ceiling” (per employee per year)$153,164.00
“Maximum Contribution” (per employee per year)$1,378.48
“Maximum Weekly Benefit Amount” (WBA)$1,620.00
“Maximum Benefit Amount” (WBA X 52 weeks)$84,240.00
“Assessment Rate” (this figure is the product obtained by multiplying the worker contribution rate by 14% or 0.9 X 14%)0.126%

The Employee Contribution Rate is the percentage withheld from the wages of employees who are covered by Disability Insurance (DI) and Paid Family Leave (PFL). The Taxable Wage Ceiling is the maximum yearly wage, per employee, that is subject to DI and PFL withholding. The Maximum Contribution is the maximum amount withheld from the yearly wages of an employee who is covered by state disability and who annually earns an amount equal to or exceeding the Taxable Wage Ceiling.

The change in contribution rates and the Maximum Weekly Benefit Amount are relevant to employers who must comply with San Francisco’s Paid Parental Leave Ordinance (PPLO).  The city of San Francisco requires most employers with 20 or more employees worldwide to supplement PFL benefits received by employees to bond with a new child.  During the PFL leave period, the PPLO supplemental compensation provided by an employer, added to the PFL wage replacement benefit received from the EDD, must equal 100% of the employee’s gross weekly wage, subject to a cap.  For 2023, the PPLO cap will be $2,700 per week.

The Assessment Rate is relevant to employers that maintain a state-approved voluntary plan (VP), which is a disability insurance plan that an employer can offer to its California employees as a legal alternative to mandatory DI and PFL.  The Assessment Rate is the amount that an employer pays to the EDD as an administrative expense for maintaining a voluntary plan.

Jackson Lewis continually monitors governmental changes affecting California employers. If you have questions regarding Paid Family Leave, the Paid Parental Leave Ordinance or other wage replacement requirements contact a Jackson Lewis attorney to discuss.

While the Secretary of State continued to count signatures to determine if a  potential referendum on the FAST Recovery Act (the Act) will make it on the ballot, a lawsuit was filed by a coalition of California small business owners, restaurateurs, franchisees, and related entities seeking to enjoin the enforcement of the Act.  

In September 2022, Governor Newsom signed Assembly Bill (AB) 257, which created the Fast Food Accountability and Standards Recovery Act, or the “FAST Recovery Act.”  This Act establishes a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials within the Department of Industrial Relations that will set industry-wide standards for wages, working hours, and other working conditions related to the health, and safety of fast food workers. Almost immediately, a referendum campaign was launched by the restaurant industry to require the statute to be considered by the voters in the 2024 election.

The lawsuit filed was in response to statements from the state that despite the pending review of signatures to approve the referendum, it intended to enforce the law starting on January 1, 2023. In the Complaint, the coalition calling itself “Save Local Restaurants” stated that the temporary implementation of the Act would not only be unconstitutional based on the state referendum process “but also would create confusion and set a dangerous and absurd precedent.”

On the last court day of the year in 2022, the request for a writ of mandate was heard in Sacramento Superior Court and a temporary order was granted restraining the State from implementing, enforcing, or taking any other action to effectuate the Act. The Court set a further hearing for January 13, 2023, for a hearing on a preliminary injunction of the Act.

Jackson Lewis will continue to track developments related to the FAST Recovery Act. If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

As we wrap 2022, here a review of some of the changes to California employment law that will continue to affect employers in 2023.

Legislative Changes

New Year, New Minimum Wages for California

California Tightens Rules on Vehicle Tracking, Fleet Management

Cal/OSHA Mandated to Update Heat Illness and Wildfire Smoke Standard

California Revises Formula for Paid Family Leave and State Disability Insurance Benefits to Assist Lower Wage Earners

California Expands Who an Employee Can Care for Under the CFRA and California Paid Sick Leave Law

California Prohibits Retaliation Against Employees for Refusal to Report to Work During Emergency Conditions

Bereavement Leave Now Protected in California

California Passes New Requirements for Call Center Employers

COVID-19 Employee Notice Requirements Revamped and Extended Until 2024

Amendment to CMIA Regarding Mental Health and Mental Health Apps

California Expands Pay Transparency and Reporting Obligations

High Times Ahead for Employers in California

California Adopts Law that Seeks to Protect Children’s Online Privacy

FAST Recovery Act Signed by California’s Governor

California Passes Legislation to Expand Mandated Retirement Plans

California Governor Signs Bill Extending Provisions Related to Filing Work Share Plans Indefinitely

Case Law Changes

Federal Preemption of California’s Meal and Break Laws for Interstate Motor Carriers Applies Retroactively

Ninth Circuit Holds California’s ABC Test for Classifying Independent Contractors Does Not Violate First Amendment

California Court of Appeal Upholds Construction Industry CBA Exemption from PAGA

U.S. Supreme Court Deals Blow to California’s Private Attorneys General Act

9th Circuit Holds California Paid Sick Leave Does Not Apply to Rail Workers

California Supreme Court Holds No Privity Between Hospital and Staffing Agency to Allow Claim Preclusion

Pre-Employment Drug Testing Not Compensable Under California Law Holds Ninth Circuit

California Courts Have Found Two Statutes Requiring Diversity in the Makeup of Public Company Boards of Directors Unconstitutional

California Supreme Court Rules Additional Penalties May Be Recoverable for Meal & Rest Period Violations

Exclusive Concurrent Jurisdiction Applies to Overlapping PAGA Actions

9th Circuit Rejects PAGA Objector’s Appeal

California Court of Appeal Upholds Enforcement of Non-Solicitation Covenant Based on the Statutory Exception for Transferring Ownership of a Business Interest

California Court of Appeals Rules Short Haul Drivers’ Claims Preempted by Federal Motor Carrier Safety Administration Rules

California Supreme Court Resolves Confusion Regarding the Burden Shifting Standard for Whistleblower Retaliation Claims

California Court of Appeal Reiterates Support of Rounding of Employee Time, Affirms Denial of Class Certification

Administrative Changes

Non-Emergency COVID-19 Standard Passed by Cal/OSHA

Jackson Lewis will continue to track changes that affect California employers in 2023. If you have questions about California workplace law compliance, contact a Jackson Lewis attorney to discuss.

As the year wraps up, we review some of the highlights of the California Workplace Law Blog with the top 10 most popular blog posts of 2022:

  1. Reminders Regarding Remote Employees in California
  2. High Times Ahead for Employers in California
  3. U.S. Supreme Court Declines Review of AB 5
  4. Proposition to Repeal PAGA Approved for November 2024 Ballot
  5. California Supreme Court Accepts Invitation to Weigh In on Employment Arbitration Agreements & PAGA
  6. California Supreme Court Rules Additional Penalties May Be Recoverable for Meal & Rest Period Violations
  7. Governor Rolls Back California COVID-19 Executive Orders & Cal/OSHA Releases Draft Permanent COVID-19 Standard
  8. Ask A Litigator: What Do Employers Need to Know About PAGA?
  9. Reminder Regarding California Expense Reimbursement & IRS Increase of Its Mileage Rate
  10. California Expands Pay Transparency and Reporting Obligations

On December 13, 2022, the City of Berkeley passed the Fair Workweek Employment Standards Ordinance on the second reading. The ordinance will take effect in January 2023; however, it will not become operative until 2024 according to the terms of the ordinance.

Covered Employers

The ordinance applies to any employer in the City of Berkeley with 10 or more employees in the city that is:

  • primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and employs 56 or more employees globally; or
  • primarily engaged in the restaurant industry, and employs 100 or more employees globally; or
  • a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises with franchisees employing in the aggregate 100 or more employees globally; or
  •  a not-for-profit corporation organized under Section 501 of the United States Internal Revenue Code in the industries specified under subsection (a)(1), (2), and (3) and employs 100 or more employees globally.

Covered Employee

Under the ordinance covered employee is defined as a person in a calendar week who performs at least two hours of work within the geographic boundaries of the city for a covered employer and is entitled to payment of minimum wage from any employer under the state requirements and is not exempt from payment of an overtime rate of compensation.

Obligations of Covered Employers

The ordinance includes several obligations for employers pertaining to scheduling, including the following:

  • Provide each employee with a good faith estimate in writing of the employee’s work schedule. The employee may submit a written request to modify the estimated work schedule, and the covered employer in its sole discretion may accept or reject the request and shall notify the employee of the covered employer’s determination in writing prior to or on the commencement of employment.
  • Provide its employees with at least two weeks’ notice of their work schedules by doing one of the following:

(1) posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or

(2) transmitting the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace.

For new employees, a covered employer shall provide the new employee prior to or on their first day of employment with an initial work schedule. Thereafter, the covered employer shall include the new employee in an existing schedule with other employees.

  • Provide an employee written notice of any change to the employee’s posted or transmitted work schedule within 24 hours of a schedule change. This notice requirement shall not apply to any schedule changes the employee initiates.

Covered Employee Rights

Pursuant to the ordinance covered employees are provided certain rights pertaining to their schedule including the following:

  • Subject to certain exceptions, an employee has the right to decline any previously unscheduled hours that the covered employer adds to the employee’s schedule, and for which the employee has been provided advance notice of less than 14 days before the first day of any schedule.
  • Subject to certain limitations, before hiring new employees, including through temporary services or staffing agencies, a covered employer shall first offer additional hours of work to existing part-time employees.
  • Covered employees have the right to decline work hours that occur less than 11 hours after the end of the previous shift. An employee who agrees in writing to work hours less than 11 hours from the end of the previous shift shall be compensated at one and one-half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.
  • An employee has the right to request a modified work schedule, including but not limited to additional shifts or hours; changes in days of work or start and/or end times for the shift; permission to exchange shifts with other employees; limitations on availability; part-time employment; job sharing arrangements; reduction or change in work duties; or part-year employment.

Predictability Pay for Schedule Changes

Subject to certain exceptions, a covered employer shall provide an employee with the following compensation per shift for a previously scheduled shift that the covered employer adds or subtracts hours, moves to another date or time, cancels, or each previously unscheduled shift that the covered employer adds to the employee’s schedule:

(1) with less than 14 days notice, but 24 hours or more notice to the employee: one hour of predictability pay;

(2) with less than 24 hours notice to the employee, (i) When hours are canceled or reduced, four hours or the number of canceled or reduced hours in the employee’s scheduled shift, whichever is less; (ii) For additions and all other changes, one hour of predictability pay. The compensation required by this subsection shall be in addition to the employee’s regular pay for working such a shift.

Waiver through CBA

The requirements of the ordinance may be waived through a bona fide collective bargaining agreement but only if the waiver is set forth explicitly in such agreement in clear and unambiguous terms.

If you have questions about the Berkeley Fair Workweek Ordinance or related issues, contact a Jackson Lewis attorney to discuss.