On November 19, 2020, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that, in effect, creates an emergency temporary standard specific to potential workplace coronavirus (“COVID-19”) exposures (“COVID-19 Prevention Rule” or “Rule”). While not the first state to adopt an emergency temporary standard (see our earlier posts on new requirements in Michigan, Oregon, and Virginia), California’s COVID-19 Prevention Rule is unique in that it is performance based and adds to the host of requirements imposed by the state’s public health departments. As a result, California employers need to ensure their efforts to manage COVID-19 heed both the new COVID-19 Prevention Rule and state and local public health department orders. The state’s Division of Occupational Safety & Health (“Cal OSHA”) will administer and enforce the COVID-19 Prevention Rule, which is codified in Section 3205 of California’s Code of Regulations, and goes into effect on January 1, 2021.

Read the full post on Jackson Lewis OSHA Law Blog.

Only a week ago Governor Newsom “pulled the brake” on California’s reopening, including issuing a travel advisory. However, as the number of COVID-19 cases continues to rise, the California Department of Public Health (“the Department”) has issued a limited stay-at-home order that will go into effect Saturday, November 21, 2020, at 10:00 p.m. PST. The Department also issued a Questions and Answers page regarding the limited stay-at-home order.

The order applies to counties in California’s Purple Tier, the designation for those areas with the most widespread transmission of COVID-19.  Many of the most populous counties including Los Angeles, San Diego, and Orange are currently included in the Purple Tier.

Under the order, individuals in these counties must stay home between the hours of 10 p.m. and 5 a.m. except for those activities associated with the operation, maintenance, or usage of critical infrastructure or required by law.  Members of the same household are permitted to leave their residence, lodging, or temporary accommodation, as long as they do not interact with anyone outside their household. A business that is not deemed essential must also close between the hours of 10 p.m. and 5 a.m.

If a county moves to the Purple Tier after November 21, 2020, the order will apply to that county at 10:00 p.m. PST of the second day following such move.  The order is set to expire December 21, 2020, but may be extended as deemed necessary.

Jackson Lewis is monitoring COVID-19 developments that affect employers. If you have questions about this or other COVID-19 related orders, contact a Jackson Lewis attorney to discuss.

California’s stair-step climb to a $15-dollar minimum wage continues. Effective January 1, 2021, the minimum wage for employers with 25 employees or less will increase to $13.00 per hour, and for employers with 26 or more employees, the minimum wage will increase to $14.00 per hour. Employers must remember this increase also affects minimum salary requirements for exempt employees.

While some local minimum wages increase mid-year, many others also increase on January 1 at the same time the State’s increases take effect.

For example, in the cities of Sonoma and Hayward, the minimum wage for employers with 25 employees or less will increase to $14.00 per hour, and for employers with 26 or more employees the minimum wage will increase to $15.00 per hour, effective January 1, 2021.

Likewise, the city of Novato’s minimum wage for employees with 25 employees or less will increase to $14.00 per hour, and for employers with 26 to 99 employees, the minimum wage will increase to $15.00 per hour as of January 1.  For employers with 100 employees or more, the minimum wage in the city of Novato will increase to $15.24 per hour, effective January 1, 2021.

The following local minimum wages go into effect on January 1, 2021, regardless of employer size:

City

Required Minimum Wage as of January 1, 2021, Irrespective of Employer Size

 
Belmont $15.90 per hour
Cupertino $15.65 per hour
Daly City $15.00 per hour
El Cerrito $15.61 per hour
Half Moon Bay $15.00 per hour
Los Altos $15.65 per hour
Menlo Park $15.25 per hour
Oakland $14.36 per hour
Petaluma $15.20 per hour
Palo Alto $15.65 per hour
Redwood City $15.62 per hour
Richmond $15.21 per hour
San Carlos $15.24 per hour
San Diego $14.00 per hour
San Jose $15.45 per hour
San Mateo $15.62 per hour
Santa Clara $15.65 per hour
Santa Rosa $15.20 per hour
South San Francisco $15.24 per hour
Sunnyvale $16.30 per hour

Employers must also ensure their minimum wage postings are updated appropriately to reflect state and local increases.

Jackson Lewis will continue to track minimum wage increases and changes in California and nationally. If you have questions about payment of wages, reach out to a Jackson Lewis attorney to discuss.

During the California Consumer Privacy Act’s (“CCPA”) amendment process prior to enactment, personal information in the employment context was highly contested and has continued to be a point of deliberation even after the CCPA’s effective date last January 1, 2020.  CCPA excludes certain employment-related personal information from most of the act’s requirements until January 1, 2021. This exemption was extended by the California Privacy Rights Act (“CPRA”) (a ballot measure supported last week by a strong majority of  California voters) until January 1, 2023.

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

At the end of California’s 2020 legislative session, Governor Newsom signed Senate Bill 973 (SB 973), which created pay data reporting requirements for employers starting in March 2021. However, the new legislation left some uncertainty for employers in several areas.

The Department of Fair Employment and Housing (DFEH) promised in mid-October that it would be issuing a Frequently Asked Questions page to assist with compliance. On November 2, it did so—at least partially.  The current page includes additional information on whether the pay data may be released publicly (DFEH may release it, but only in aggregated form) and data privacy and protections (DFEH may not release individually identifiable information publicly).

The FAQs also touch on the rationale behind the need for the State of California to collect this data. The FAQ states in August 2017, the federal government halted the implementation of reporting on pay data by gender, race, and ethnicity, which California believed to be important to recognize potential pay discrimination.  But the FAQs are far from complete. The following sections state that guidance is coming soon:

  • Required content
  • Pay
  • Hours Worked
  • Multi-establishment employers
  • Acquisitions and mergers
  • Spinoffs

Questions regarding the scope of whether pay data reporting extends to employees outside of  California also remain outstanding.

Other tensions currently exist between the State of California and the federal government pertaining to employer data. In late October, the State of California, along with Maryland and Minnesota, filed suit against the EEOC seeking to reverse EEOC’s recent policy of restricting access to annual employer information when requested by states and local fair employment practices agencies such as the DFEH.

Jackson Lewis will continue to monitor guidance and related information pertaining to California’s pay data reporting and other pay equity issues. If you have questions about compliance with SB 973 or related pay data reporting contact a Jackson Lewis attorney to discuss.

On September 17, 2020, Governor Gavin Newsom signed Assembly Bill 685 (“AB 685”) into law, and in doing so amended provisions of California’s Health and Safety and Labor Codes. AB 685 explicitly amended Labor Code section 6409.6 to grant California’s Division of Occupational Safety and Health (“DOSH” or “Cal OSHA”) authority to issue: (1) Orders Prohibiting Use (“OPU”) in certain circumstances where COVID-19 presents an imminent hazard, and (2) citations alleging serious violations of occupational health and safety requirements related to COVID-19 without giving employers 15-day pre-citation notice.  The law also mandates a written notification to all employees following known potential exposure to COVID-19 in the workplace, which Cal OSHA has authority to enforce, and notification to local and state public health departments of COVID-19 “outbreaks.”

As the California Department of Public Health (“CDPH”) had previously issued guidance to California employers and businesses in the form of a playbook, which defined an “outbreak”, and the state’s regulatory framework gives CDPH responsibility for management of communicable diseases, AB 685 left the definition of ”outbreak” up to CDPH.

On October 16, 2020, CDPH issued additional guidance on AB 685 with the following definitions:

  1. COVID-19 “outbreak”:
    • A COVID-19 outbreak is defined in a non-healthcare workplace as at least three COVID-19 cases among workers at the same worksite within a 14-day period.
      • Under AB 685, a COVID-19 case is someone who:
        • Has a positive viral test for COVID-19,
        • Is diagnosed with COVID-19 by a licensed health care provider,
        • Is ordered to isolate for COVID-19 by a public health official, OR
        • Dies due to COVID-19, as determined by a public health department.
  • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection (a)(4(b)), if an employer or their representative is notified of the number of cases meeting the definition of a COVID-19 outbreak, they must notify the local public health agency in the jurisdiction where the worksite is located.
  • Non-healthcare employers must therefore report to the local public health agency when three or more workers with COVID-19 are identified within a 14-day period.
  • Health facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.
  1. Infectious period:
    • For an individual who develops COVID-19 symptoms, the infectious period for COVID-19 begins 2 days before the individual first develop symptoms. The infectious period ends when the following criteria are met: 10 days have passed since symptoms first appeared, and at least 24 hours have passed with no fever (without the use of fever-reducing medications), and other symptoms have improved.
    • For an individual who tests positive but never develops symptoms, the infectious period for COVID-19 begins 2 days before the specimen for their first positive COVID-19 test was collected. The infectious period ends 10 days after the specimen for their first positive COVID-19 test was collected.
    • Under AB 685 Section 4 (Labor Code Section 6409.6, subsection 1), employers must provide notice to all employees who were present at the same worksite as someone with COVID-19 during their infectious period.
  2. Laboratory-confirmed case of COVID-19:
    • A laboratory-confirmed case of COVID-19 is defined as a positive result on any viral test for COVID-19.

CDPH’s guidance goes on to convey that healthcare facilities, who are exempt from AB 685’s mandate to report outbreaks to local health departments, should follow CDPH reporting guidance for healthcare facilities.

In addition to the Definitions, the CDPH also published a memorandum on “Employer Questions about AB 685, California’s New COVID-19 Law.”  The questions provide some general insight for employers on AB 685’s employee notification requirements as well as the reporting requirements to local health departments.

The guidance states employers must report all COVID-19 outbreaks to their local health department.  Once the threshold for an outbreak is met, meaning three or more positive cases have occurred within a 14-day period, employers have 48 hours to report the cases to the local health department having jurisdiction over the worksite location.

Following an outbreak notification, employers also must continue to notify the local health department of any new COVID-19 cases identified among workers at the worksite and cooperate with the health department’s investigation.

Initial reports to Local Health Departments should generally include:

  1. Information about the worksite – the name of company/institution, business address, and North American Industry Classification System (“NAICS”) industry code.
  2. Names and occupations of workers with COVID-19.
  3. Additional information requested by the local health department as part of their investigation.

Notification and reporting requirements under AB 685 go into effect on January 1, 2021, and will last until January 1, 2023, and may be further extended. Until the outbreak notification requirements under AB 685 go into effect, California employers should still be aware that they may have notification obligations under standing local health department orders.

If you have questions or need assistance with COVID-19 Workplace Compliance, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

While some of the 2020 election is still undecided, California voters were fairly definitive in their support of Proposition 22, which will now allow app-based rideshare and delivery companies to hire drivers as independent contractors if various conditions are met.

A key part of Prop 22 provides workers with minimum compensation levels, health insurance subsidies to qualifying drivers, medical costs for on-the-job injuries and prohibits drivers from working more than 12 hours in a 24-hour period for a single company. It also requires companies to develop sexual harassment policies, conduct criminal background checks, and require safety training for drivers.

Since the advent of ride-sharing apps, the gig economy and the State of California have grappled over how workers who provide rideshare and delivery services should be classified. This disagreement started soon after these services became popular but came to a head with the passage of Assembly Bill 5 (“AB 5”) in 2019. Effective January 1, 2020, AB 5 adopted the stringent “ABC Test” for determining whether individuals should be classified as independent contractors or employees. AB 5 included a number of narrow exemptions, none of which were applicable to these drivers. This year, Governor Newsom signed Assembly Bill 2257 (AB 2257), which recasts, clarifies, and expands exemptions to AB 5. However, AB 2257, like AB 5, did not include any exemption applicable to ride-sharing companies.

With the passage of Proposition 22, app-based workers may be classified as independent contractors while also being provided benefits which typically would evidence an employee/employer relationship.

While the law is limited to app-based rideshare and delivery companies, the passage of Proposition 22 may allow for additional companies to pursue similar models. Or, potentially, other industries will seek to take their arguments for independent contractor classification to the voters. Proposition 22’s passage will also impact similar battles going on with rideshare and delivery companies in other states as well as states that planned to adopt legislation to follow California’s lead on the classification of drivers.

The legislature can only amend the new law if the changes are consistent with the Proposition’s purpose and if seven-eighths of lawmakers favor the amendment.

Jackson Lewis will continue to monitor worker classification legislation and regulations. If you have questions about worker classification, contact a Jackson Lewis attorney to discuss.

It goes without saying that November 3rd 2020 was an important day for the future of the nation, but it was also a significant day for the future of California privacy law.  On Tuesday, a strong majority of California voters supported Proposition 24, a ballot measure which aims to expand and enhance the California Consumer Privacy Act (“CCPA”).  The CCPA took effect in January, and companies are still grappling with its compliance. Companies have overhauled their privacy programs and policies and designed new systems to comply with the CCPA, but now it looks like they will be back to the drawing board.

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

California employers have been inundated with new legislation this year and many employers may have forgotten Senate Bill 1123 (SB 1123), that was passed in 2018. SB 1123 expanded the Paid Family Leave program to include time off for employees to attend to a “qualifying exigency” related to an individual’s spouse, registered domestic partner, parent, or child who is an active duty member of the United States Armed Forces. Although SB 1123 was passed in 2018, the changes do not go into effect until January 2021.

Assembly Bill 2399, passed this year, also expands the definitions of Paid Family Leave under Sections 3302 and 3307 of the Unemployment Insurance Code to include coverage for active military members and their families. AB 2399 also will go into effect in January 2021.

AB 2399 complements recent amendments to the California Family Rights Act (“CFRA”). The new reasons for using leave under the CFRA include time off to care for a grandparent, grandchild, or sibling with a serious health condition, or to take time off because of a qualifying exigency related to the employee’s call to active duty or the call to activity duty for certain family members in the Armed Forces. Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child, parent, spouse, or domestic partner, and CFRA leave was not available for qualifying exigencies related to military service.

If you have questions about new or old changes to California’s Paid Family Leave or other legislative change, contact a Jackson Lewis attorney to discuss.

The California 2020 legislative session has closed, and employers should be preparing for 2021 by updating policies and procedures. Employers should ensure that the minimum wage for non-exempt employees’ wages will be appropriately increased for 2021. Since 2017, California has been working its way up to an eventual $15 minimum wage. Industry groups rallied for “pausing” 2021’s increase, but to date, there is no indication this will happen.

On January 1, 2021, the state minimum wage will increase to $14.00 for employers with 26 employees or more, and to $13.00 for employers with 25 employees or less, unless the employees perform work in one of the many cities that have their own local minimum wage ordinance.   Employers should review non-exempt employee wages and make appropriate adjustments to ensure compliance for 2021.

While many employers are familiar with the need to increase non-exempt employees’ wages as state minimum wage increases on January 1st, employers might overlook the need to also increase some of their exempt employees’ salaries to meet the salary basis requirement of California law.

Exempt employee’s salaries must meet a certain threshold for the employees to be exempt under the executive, administrative, and professional exemptions. In California, exempt employees must receive a salary of at least twice the state minimum wage for a 40-hour workweek, in addition to meeting the general duties and other requirements. For 2021, this means exempt employees must receive a minimum annual salary of $58,240 for employers with more than 26 employees, and $54,080 for employers with 25 employees or less.  The base salary must be fixed and recur each pay period without variance due to hours, quantity, or quality of work performed.

For certain exempt positions, the Department of Industrial Relations (“Department”) annually sets the minimum salary requirement by following a formula set by the California Labor Code. This month the Department released the salary requirements for Computer Software Employees, Physicians, and Surgeons.

Computer software employees in 2021 may be exempt from overtime if their hourly rate is not less than $47.48, the minimum monthly salary requirement is not less than $8,242.32, and the annual salary requirement is $98,907.70.

If you have questions about employee pay, exemptions from overtime, or related wage and hour issues, contact a Jackson Lewis attorney to discuss.