In order for an employee to be deemed exempt from overtime regulations under California law, the employee must fit into a category of work that is deemed exempt. The most common exemption is the executive, administrative, and professional exemption, which includes workers who are employed in administrative, managerial, executive, or professional capacities. There are also detailed requirements as to the amount of work performed in certain areas and most employees must also meet a minimum salary threshold, which for most of the exempt categories, is no less than two times the state minimum wage for full-time employment (40 hours).

However, for certain exempt categories, the Department of Industrial Relations (DIR) sets the minimum monthly salary based on increases to the California Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI). Under Labor Code section 515.5, certain computer software employees are one of the professions that must be paid a statutorily specified rate in order to be deemed exempt from overtime regulations.

Effective January 1, 2023, the minimum hourly rate for computer software employees to meet the exemption will be $53.80, with a minimum monthly salary of $9,338.78 (annually $112,065.20). The current rates are $50.00 per hour, $8,679.16 minimum monthly salary, and $104,149.81 annually.

Similarly, under Labor Code section 515.6, certain licensed physicians and surgeons must be paid a statutorily specified rate to be deemed exempt from overtime regulations.  Effective January 1, 2023, the minimum hourly rate for licensed physicians and surgeons to meet the exemption will be $97.99. The current hourly rate is $91.07

If you have questions about overtime exemption requirements or related issues, contact a Jackson Lewis attorney to discuss.

As the dust settles after another active California legislative session, employers still have more legislation to be on the lookout for by way of ballot measures. In the midterm elections this year, several cities in California will be voting on regulations that will impact employers.

Over the summer, several California cities considered, and some passed ordinances increasing the minimum wage for healthcare workers in those cities to $25.00. Since the summer, many of the ordinances are stayed pending referendums in the future, but two cities, Duarte and Inglewood, will vote on whether to implement a $25.00 minimum wage for healthcare workers effective 2024. The City of Los Angeles will ask voters whether to proceed with its healthcare minimum wage, but it won’t be on the ballot until March 2024.

Laguna Beach voters will consider whether to establish a Hotel Worker Protection Ordinance similar to one recently passed by the City of Los Angeles. Under the proposed ordinance, 60 days following the effective date of the ordinance, the minimum wage for hotel employees would increase to $18.00, and on January 1, 2023, it would increase to $19.00, with further increases annually. The proposed ordinance would also put in place protections for hotel workers from violent and threatening conduct, including providing personal security devices and paid time off to report violent and threatening conduct to law enforcement. The ordinance, if passed, would also establish certain limitations on workload, both time and amount of work, for hotel workers.

The success of these local ballot measures may be a precursor for similar industry-specific measures in other cities. Jackson Lewis will continue to track legislation that affects employers. If you have questions about these local ballot measures, contact a Jackson Lewis attorney to discuss.   

We are excited to welcome you back to our annual in-person presentation of updates in the areas of wage and hour, leave and accommodation and workplace safety in The Golden State.

Join Jackson Lewis P.C. attorneys across California, network with your peers and end the year with new connections.

REGISTER NOW (Registration Fee: $50.00 per session, per attendee.)

Program Details:

Orange County – Tuesday, December 6

Sacramento – Wednesday, December 7

San Diego – Thursday, December 8

San Francisco – Wednesday, December 14

Los Angeles – Thursday, December 15

Registration and Breakfast for all locations: 8:00–9:00 a.m.

Program for all locations: 9:00 a.m.–12:00 p.m.

In recent years several cities, including Los Angeles and West Hollywood have passed hotel worker protection ordinances, which put both safety and workload protections in place.

The city of Irvine may be joining this trend. On October 25th, the Irvine City Council voted by a close margin to pass a hotel worker protection ordinance. The ordinance still must pass a second reading vote, in order to become effective. To date, the second reading has not been scheduled.

The following are the basics of the proposed ordinance which mirror other California cities:

Personal Security Devices

Under the ordinance, hotel employers would be required to provide workers with a panic button device, which can be activated in the event of a situation where personal safety issues exist.

Hotel employers shall at all times have a designated and assigned security guard who can receive alerts from the device and can provide on-scene assistance. Hotels with fewer than 60 guest rooms may train a hotel supervisor or manager to fulfill this function in lieu of a security guard.

The ordinance also provides rights to hotel employees who report violent or threatening conduct, including reasonable accommodation and paid time off to report such incidents to law enforcement.

Workload and Hours Limitations

The ordinance also establishes certain workload and hours limitations for hotel workers. Based on the size of the hotel, the ordinance would establish a maximum room cleaning quota for hotel staff. Further, hotel employers could not require or permit a hotel worker to work more than 10 hours in a workday, unless the hotel worker consents in writing to additional hours of work.

Hotel employers will be required to provide written notice of the hotel worker’s rights regarding the workload requirements at the time of hire or within 30 days of the effective date of the ordinance.

Moreover, the workload and hours limitations may be superseded by a collective bargaining agreement (CBA), but only if the waiver is expressly set forth in the CBA.

If passed on second reading, the ordinance would become effective 30 days from the vote, except for the measures to provide fair compensation for workload which would become effective in 180 days.

If you have questions about the Irvine Hotel Worker Protection Ordinance or related issues, you may contact the author of this article or the Jackson Lewis attorney with whom you regularly work.

Over the past several years, there has been a significant increase in the use of dashcam technology. The technology available in the market is quite advanced. As we observed here, these devices can be equipped with geolocation, AI, facial recognition, and other technologies.  Designed primarily to enhance driver safety and fleet management, privacy concerns are tapping the brakes on implementation in California.

On September 29, 2022, Governor Gavin Newsom signed into law AB-984, and becoming effective January 1, 2023. The law builds on other privacy protections in California, such as the California Consumer Privacy Act and Penal Code Sec. 637.7. Section 637.7 prohibits using an electronic tracking device to determine the location or movement of a person, however, it does not apply when the vehicle owner (e.g., the employer) has consented to the use of the device.

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

Like its neighbor City of Los Angeles, Santa Monica has local employment ordinances. However, as a popular tourist destination, Santa Monica has several ordinances pertaining to the hospitality industry that employers should take note of.  

Minimum Wage and Hotel Worker Living Wage

On July 1, 2022, Santa Monica raised the minimum wage for most businesses to $15.96.

The city has a separate ordinance, the Hotel Worker Living Wage, which applies to hotel workers. Under this ordinance, hotel workers are defined as individuals whose primary place of employment is at one or more hotels and is employed directly by the hotel employer, or by a person who has contracted with the hotel employer to provide services at the hotel. The ordinance does not apply to employees in managerial and supervisory roles. Effective July 1, 2022, the hotel worker minimum wage is $18.17.

The Hotel Worker Living Wage applies to all hotels, not including Santa Monica’s youth hostels.

Paid Sick Leave

Santa Monica also has its own paid sick leave ordinance. Under the ordinance, small businesses (employ 25 or fewer employees in Santa Monica) must provide 40 hours of paid sick leave, and large businesses (employ 26 or more employees in Santa Monica) must provide 72 hours of paid sick leave.

Under the city’s ordinance, an employer may provide sick leave using an accrual method or front loading. If an employer uses the accrual method, the employer must allow accrued, unused sick leave to carry over annually up to the accrual cap. However, if the employer uses a frontloading method, no carryover is required.

Right of Recall

In the wake of COVID-19, several cities and the state passed right-of-recall statutes requiring covered employers to offer qualified employees, who were laid off due to the pandemic, available positions based on seniority and related factors.

Santa Monica has had such an ordinance in place since 2001. Under the city’s ordinance, employees who were laid off and are qualified must be offered open positions as they become available. This ordinance does not apply to employees in managerial and supervisory roles. An employee is deemed qualified if: (1) the employee held the “same or similar position” at the same site of employment at the time of the employee’s most recent separation; or (2) is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.  

Hotel Worker Protection

Similar to an ordinance recently passed by the City of Los Angeles, Santa Monica passed a Hotel Worker Protection ordinance on January 1, 2020.

Under Santa Monica’s ordinance:

  • Hotel employers must provide personal security devices to hotel workers assigned to work in a guest room or restroom facility;
  • Hotel workers must be provided training on using personal security devices, how to respond to activation, and hotel workers’ rights;
  • Certain protections must be afforded to hotel workers who report violent or threatening conduct by hotel guests, including providing sufficient paid time to report violent conduct to law enforcement and to consult with a counselor or advisor.

Like the Los Angeles ordinance, Santa Monica’s ordinance puts certain requirements in place regarding hotel workers’ workload, including prohibiting hotel workers to work more than 10 hours in a workday without the worker’s written consent.

There are also certain Public Housekeeper Training Organization requirements under the ordinance.

If you need assistance with compliance with Santa Monica’s local ordinances or related issues, contact a Jackson Lewis attorney to discuss.

The U.S. Court of Appeals for the Ninth Circuit reviewed a challenge to California’s “ABC Test,” also referred to as Assembly Bill (AB) 5, which is California’s test for whether a worker can be classified as an independent contractor.  In Mobilize the Message, LLC v. Bonta, the plaintiffs appealed the district court’s denial of a preliminary injunction seeking to restrain the California Attorney General from applying the ABC Test to classify doorknockers and signature gatherers as either employees or independent contractors.

In the case, Mobilize the Message, LLC argued that the California law violated the First Amendment of the U.S. Constitution because it discriminates against speech based on its content. Specifically, plaintiffs argued that it was discriminatory to require doorknockers and signature gatherers to be classified as employees or independent contractors under the ABC Test while occupations such as direct salespersons, newspaper distributors, and newspaper carriers are exempt from the test’s application.

In the Ninth Circuit’s review of the district court’s denial, it accepted the plaintiffs’ assertion that their doorknockers and signature gatherers would likely be classified as employees under the ABC Test, and that such classification would impose greater costs which may limit clients from retaining their services. The Ninth Circuit panel stated, however, that such an indirect impact on speech did not violate the First Amendment. The panel further noted that the codification of the ABC Test into California law does not target certain types of speech and applies across California’s economy aside from certain exemptions. As such, “plaintiffs were not unfairly burdened by the application of the ABC test to their doorknockers and signature gatherers.”

Moreover, the panel rejected the plaintiffs’ argument that exemptions for direct sales salespersons, newspaper distributors, and newspaper carriers were content-based discrimination, as the exemptions did not depend on the content of communications conveyed but rather the worker’s occupations.

Based on the panel’s findings, the district court’s ruling in denying a preliminary injunction was upheld.

Mobilize the Message, LLC v. Bonta is the latest in failed industry challenges to the application of the ABC Test. In July 2022, the U.S. Supreme Court denied the trucking industry’s petition for review of its challenge to the ABC Test.   

If you have questions about the application of the ABC Test or independent contractor classification, contact a Jackson Lewis attorney to discuss.

Previously, the California Department of Public Health (CDPH) had redefined “close contact’ as someone sharing the same indoor airspace with a person who had COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period. This definition had caused issues for employers in particular who needed to comply with notice requirements. These notice requirements were recently extended until 2024.

In order to allow businesses to better respond to potential exposures, the CDPH revised its definition of close contact to set clearer parameters. Under the revision “close contact” is defined as the following:

  • In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane, etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
  • In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

The CDPH revision also clarifies that spaces that are separated by floor-to-ceiling walls e.g. offices, suites, and waiting rooms are considered distinct indoor airspaces for purposes of close contact.

The CDPH also published a Questions and Answers for Beyond the Blueprint which explains the difference between direct and indirect exposure as well as how healthcare facilities should respond to potential exposure when using the updated definition.

Employers should review the revised definition as it applies to notice requirements to employees who may have been exposed.

If you have questions about the effect of the CDPH revisions or related issues, contact a Jackson Lewis attorney to discuss.

As part of the recent legislative session, Governor Newsom signed Assembly Bill (AB) 1775, which implements new workplace safety training and certification requirements for entertainment events vendors who produce live events at public events venues. 

Specifically, any business that contracts with the entertainment events vendor to set up, operate, or tear down a live event at a public events venue must require the vendor to certify in writing, for its employees and the employees of any subcontractors, the following:

(1) All employees involved in setting up, operating, or tearing down the live event at the venue have completed the Cal/OSHA-10, the OSHA-10/General Entertainment Safety training, or the OSHA-10 as applicable to their occupation. These are 10-hour training courses developed by Cal/OSHA and federal OSHA pertaining to workplace safety.

(2) Additionally, the vendor must certify one of the following:

  • All department heads and leads have completed the Cal/OSHA-30, the OSHA-30/General Entertainment Safety training, or the OSHA-30, and are certified through the Entertainment Technician Certification Program relevant to the task(s) they are supervising or performing, or another certification program.
  • Alternatively, the vendor can certify that its employees and any subcontractors’ employees meet the conditions for a skilled and trained workforce as that term is defined in Section 2601 of the Public Contract Code.

For purposes of these additional requirements, a “public events venue” means a state-operated fairground, county fairground, state park, California State University, University of California, or auxiliary organization-run facility that hosts live events.

The Division of Occupational Safety and Health is authorized to enforce these requirements by issuing a citation and civil penalty, subject to appeal.  Nothing in AB 1775 relieves an employer from conducting any other training required by Cal/OSHA and complying with any other occupational safety and health law requirements.

If you have questions about compliance with AB 1775 or related issues please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

In June, San Francisco voters approved Proposition G, which created the Public Health Emergency Leave Ordinance (PHELO). The ordinance requires private employers to provide paid leave to employees for “public health emergencies.” The ordinance took effect on October 1, 2022. In conjunction with the effective date, San Francisco’s Office of Labor Standards Enforcement (OLSE) issued a Frequently Asked Questions page to assist with the application of the new law.

The FAQs cover topics including:

  • Scope of the Ordinance
  • Amount of Leave
  • Use of Leave
  • Payment for Leave
  • Notice and Posting
  • Employer Records

Scope of the Ordinance

PHELO applies to employers with 100 or more employees worldwide. The OLSE states that if the number of employees fluctuates above and below 100 in the course of a year, employers should calculate business size based on “the average number of employees per pay period during the preceding calendar year.”

The FAQs also clarify that employees who work at San Francisco International Airport (SFO) are not covered by the ordinance as it is outside the geographic boundaries of San Francisco.

Amount of Leave

The FAQs specify the calculation of leave for employees as follows:

  • Full-time regular or fixed schedule employees are entitled to the number of hours over a one-week period that the employee regularly works, not to exceed 40 hours through December 31, 2022. As of January 1, 2023, such employees should get the number of hours the employee would work in a two-week period, not to exceed 80 hours.
  • Part-time employees or variable hours employees are entitled to the number of hours equal to the average number of hours over a one-week period that the employee was scheduled over the previous calendar year through December 31, 2022. As of January 1, 2023, such employees would be entitled to the average number of hours over a two-week period worked during the previous calendar year.

Clarification of Interaction with COVID-19 SPSL

The OLSE also clarifies in the FAQs the interaction between PHELO and statewide COVID-19 Supplemental Paid Sick leave (SPSL) stating that employers that provide SPSL are permitted to offset that leave from the required PHELO entitlement e.g. the amount of PHELO that an employer must provide is reduced for every hour of SPSL that the employee takes after October 1, 2022.  

Use of Leave

The FAQs state that an employer may require a doctor’s note or other documentation to confirm an employee’s status as a member of a vulnerable population for purposes of using the leave. However, an employer may not otherwise require the disclosure of health information for an employee to use PHELO.

Payment of Leave

The FAQs clarify that PHELO is to be compensated in the same manner as paid sick leave, which provides two options for non-exempt employees e.g. regular rate of pay for the workweek the leave is used or by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

For exempt employees, PHELO pay must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Notice and Posting

The OLSE specifies that employers must post a notice informing employees of their rights under the ordinance. To that end, the OSLE has published a notice available on its website.

Employer Records

As to recordkeeping requirements, employers must retain records documenting hours worked by employees and Public Health Emergency Leave taken by employees, for a period of four years.

If you have questions about compliance with San Francisco’s Public Health Emergency Leave Ordinance or related issues, contact a Jackson Lewis attorney to discuss.