A flurry of employment law-related bills are headed to Governor Newsom for consideration, however, no bills are being presented related to statewide supplemental paid sick leave. In March 2021, California resurrected and expanded statewide COVID-19 supplemental paid sick leave.  The legislation sunsets on September 30, 2021, and there is no legislation pending to extend it.

While the leave entitlement could be extended by the Governor by an Executive Order, there has been no indication from the Governor’s office that an order is planned.

Pursuant to the terms of the legislation, after September 30th, the requirement to provide supplemental paid sick leave will end.  However, if a covered employee is taking supplemental paid sick leave at that time, the employee can finish taking the amount of leave they are entitled to receive.

Some local supplemental paid sick leave requirements will remain in effect beyond September 30, 2021, such as the City of Los Angeles and the City of Long Beach. Employers should review local sick leave requirements to ensure compliance as the state legislation expires.

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

On  September 23, 2021, California’s Governor signed Senate Bill 807 (SB 807), which makes procedural modifications to how the Department of Fair Employment and Housing (DFEH) enforces California’s civil rights laws. The changes include modifying when and how the DFEH can appeal adverse superior court decisions regarding the scope of the DFEH’s power to compel cooperation in investigations and tolling the time the DFEH has to file a civil action while dispute resolution is pending.

Of note to California employers, SB 807 also expands current record retention requirements.  Effective January 1, 2022, employers must now retain personnel records for applicants and employees under Government Code section 12946 for four years from the date the records were created, or the date the employment action was taken.  Additional retention requirements apply once a complaint has been filed.

In addition, SB 807 extends the period in which an individual can file a civil action for violations of certain statutes, by tolling that period while the DFEH investigates and/or takes action on a complaint.

SB 807 also extends to two years the period of time that the DFEH has to complete its investigation and issue a right-to-sue notice for employment discrimination complaints treated by the DFEH as a class or group complaint.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 22, 2021, California’s Governor signed Assembly Bill 701 (AB 701) which regulates the use of quotas at warehouse distribution centers in California.  The new law applies to large employers who meet industry definitions for General Warehousing and Storage, Merchant Wholesalers (Durable and Non-Durable Goods), and Electronic Shopping and Mail-Order Houses.

AB 701 requires employers with large warehouse distributions centers to disclose quotas and pace-of-work standards to each employee upon hire or within 30 days of the law going into effect.  Employers are required to provide “a written description of each quota to which the employee is subject to, including the quantified number of tasks to be performed or materials to be produced or handled, within a defined period of time, and any potential adverse employment action that may result from failure to meet the quota.”

The new law also provides that employees are not required to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws.

If a current or former employee believes that a quota has caused a violation of such laws, the employee may request, and the employer must provide a written description of each quota applicable to the employee and a copy of the most recent or last 90 days of the employee’s own personal work speed data.  A former employee is limited to one request.

There is a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates, or takes any adverse action against any employee within 90 days of the employee either: (1) initiating the first request in a calendar year for information about a quota or personal speed data; or (2) making a complaint related to a quota alleging a violation of the labor code.

Employees are authorized to pursue injunctive relief and to recover costs and reasonable attorney’s fees upon prevailing in that action.

The requirements of this legislation go into effect on January 1, 2022.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

For now, California employers are beholden to state and local COVID-19 requirements as well as Cal/OSHA’s infamous COVID-19 Emergency Temporary Standards (ETS). The ETS are set to expire on January 14, 2022. However, Cal/OSHA has recently released a draft of a semi-permanent standard for COVID-19.

The current proposal would create a COVID-19 standard that would be subject to renewal or expiration after two years. Here are the key differences between the proposed standard and the current ETS.

COVID-19 Included in IIPP

Instead of requiring a separate COVID-19 Prevention Program, employers would address COVID-19 through their Injury and Illness Prevention Program (IIPP). Under the proposed standard, employers would still be required to assess COVID-19 hazards in the workplace and train employees about appropriate safety practices.

Testing Requirements

The proposed standards would adopt a more stringent testing requirement that would mandate employers provide testing to all employees with a close contact with a positive person, regardless of vaccination status. Only employees who have recently recovered from COVID-19 and are asymptomatic would be exempt from such testing requirements.

Face Coverings

After the criticism that Cal/OSHA faced due to being out of step with state requirements for face coverings, the proposed standard would set California Department of Public Health (CDPH) guidance as the minimum standard. Unvaccinated employees would still need to wear face coverings indoors or in vehicles.

No More Exclusion Pay

The proposed semi-permanent standard would eliminate the requirement of exclusion pay for employees who are excluded from the worksite to quarantine. Excluded employees would still need to be provided information on applicable benefits such as sick leave.

Limitation on Respirator Requirement

The current ETS requires that employers provide respirators to employees who are not fully vaccinated upon request. In the proposed standard, respirators would only need to be provided to employees who had been identified by a health care professional as being at increased risk of severe illness.

Procedures for Outbreaks

During an outbreak in the workplace, all employees would be required to wear face coverings regardless of vaccination status. And employers would need to provide respirators during major outbreaks to all employees. The testing exemption for fully vaccinated employees during outbreaks would also be removed.

The Cal/OSHA Advisory Committee on COVID-19 is convening on September 23rd to discuss the proposed standard in more depth. The proposed standard would still have several administrative hoops to clear before it could replace the ETS.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.

Employers may understand the workplace safety concerns surrounding wildfires, but there are other employment issues that employers should consider in the event of a wildfire near the worksite.

The California Labor Commissioner’s Office has FAQs pertaining to important employment issues that employers should consider when their employees or worksite are impacted by wildfires.

Regular Rate of Compensation

A major consideration is handling compensation to employees impacted by wildfires.  If the wildfire causes a work stoppage at the worksite, employees may be entitled to compensation if they are required to wait on-premises or at the worksite for work to resume.  On-call, idle, or standby time must be fully compensated, even if an employee is not performing any work because they are still subject to the employer’s control.  As such, employees must continue to be paid their regular rate of compensation, including overtime pay, if applicable.  Similarly, if employees are told to go home and return later in the same day, they may be entitled to premium pay such as split shift premiums.

Standby Time

Similarly, employers who permit employees to leave the premises, but are subject to restrictions on their movement or activities may need to  pay employees for the time spent away from the premises, because such time can be considered compensable “standby” time.  As an example, employees may be considered on standby if they are required to stay within a two-mile radius from the worksite, within a 10-minute drive from the wildfire site, or be responsive to calls within a short amount of time.

Reporting Time Pay

Typically, California mandates reporting time pay, which requires employers to pay employees a certain amount for “reporting time,” even if an employee is sent home so long as the employee shows up to their regularly scheduled work.  However, an exception exists for certain interruptions. These include interruptions that are caused outside of the control of the employer, for example, due to a wildfire, or other instances of uncontrollable natural forces.  As a result, employers may not be required to compensate employees due to work stoppage caused by a wildfire.

Exempt Employees

An “exempt” employee may be entitled to recover wages for the full week if that employee works at any point in that week.  For example, an exempt worker who shows up for half a day on Monday may be compensated for the rest of the week from Tuesday to Friday, even if there is a work stoppage.

Alternative Workweek Schedule

Employers on bona fide alternative workweek (AWW) arrangements must consider how changing employees’ hours or days of work may affect their compensation, before rescheduling employees.  Employers may be required to pay AWW employees for work at time and a half.  Employers who send AWW workers home due to a wildfire and require that they return on a non-regularly scheduled workday may be required to pay one and a half times their regular salary for the first eight hours.  Further, any hours worked over eight would be paid at two times the employees’ regular rate of pay.  Employers should be wary of the costs associated with canceling or reassigning employee work schedules.

Paid Time Off

Moreover, employees who are eligible for paid vacation or paid time off can elect to use their time if work must cease due to wildfire and they are sent home.  However, employees may only use paid sick leave if it is for covered reasons such as for, care, or treatment of an existing health condition or preventive care.

If you have questions about handling of work stoppage and compensation issues arising from wildfires, contact a Jackson Lewis attorney to discuss.

After the announcement of President Biden’s COVID-19 Action Plan, employers across the country, including California started to consider how to implement vaccination and testing requirements, even ahead of clear guidance from the federal government.

California already has its own Emergency Temporary Standards (ETS) which were amended in June by Cal/OSHA. However, currently, the California ETS does not mandate vaccination and the Cal/OSHA Standards Board has indicated it does not plan to amend the ETS further until at least December.

California’s administrative agencies have issued some guidance regarding the handling of both testing and vaccination in the workplace.

Earlier in 2021, California’s Labor Commissioner issued an FAQ regarding COVID-19 Testing and Vaccination, which covers concerns related to regulations enforced by the Labor Commissioner.

Similarly, the Department of Fair Employment and Housing also updated its guidance regarding COVID-19, to include information pertaining to vaccination and related issues in March 2021.

As guidance about the federal requirements become clearer, employers should also review California-specific requirements related to vaccination and testing to ensure compliance with state and local requirements.

If you have questions on compliance with COVID-19 workplace requirements, reach out to a Jackson Lewis attorney to discuss.

While California’s Private Attorneys General Act (PAGA) is often compared to class actions, many of the rules and regulations governing class actions are not present. And applying considerations like manageability to PAGA claims has caused California trial courts much consternation.

However, recently the California Court of Appeal for the Second Appellate District has provided some guidance. It recently decided on the issue of whether the trial courts have inherent authority to ensure that PAGA claims will be manageable at trial and whether courts have the authority to strike such claims if they are not.

The underlying case dealt with whether certain employees were appropriately classified as exempt from overtime requirements. The employer-defendant argued at the trial level that its affirmative defense, that the employees were appropriately classified, would require individualized proof, and thus the claim could not fairly and efficiently be litigated as a representative action. The trial court invited the plaintiff to provide a trial plan to show the case was manageable but instead, the plaintiff argued the trial court lacked authority to require his claim to be manageable. The trial court thereafter granted the employer’s motion to strike the PAGA claim.

The California Court of Appeal held that courts possess the authority to strike PAGA claims that are not manageable. The Court of Appeal drew on established principles of the courts’ inherent authority to manage litigation, including ensuring the manageability of representative claims, and concluded that:

(1) courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable;

(2) as a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them; and,

(3) given the state of the record and the plaintiff’s lack of cooperation with the trial court’s manageability inquiry, the court did not abuse its discretion in striking his PAGA claim as unmanageable.

The Court of Appeal affirmed the trial court’s grant of the motion to strike.

If you have questions about PAGA litigation or related issues with representative claims in California, reach out to Jackson Lewis’ California Class and PAGA Action team with questions.

 

On August 31, 2021, Governor Newsom signed Senate Bill 26 (SB 26) which makes the provisions of the Fair Pay to Play Act (The Act) operative September 1, 2021, and makes the provisions applicable to the California Community Colleges.

The Act, which was passed in 2019, allows college athletes to secure endorsements and sponsorships without losing scholarship eligibility and will generally provide athletes control over the marketing of their names, images, and likenesses.

The Act was originally set to become effective on January 1, 2023. However, SB 26 was first introduced to expedite the effective date to January 1, 2022, or to coincide with the effective date of any specified NCAA bylaw changes as adopted by the NCAA Board of Governors, whichever occurred first. The bill was later amended when it became clear that NCAA bylaw changes would occur on September 1, 2021.

SB 26 is effective September 1, 2021 (instead of January 1, 2022) because the act was amended to be an “urgency statute” to ensure that California schools and athletes were not put at a disadvantage in light of other laws being passed in 2021 in other states.

If you have questions about changes made by SB 26 or related issues related to name, image, and likeness regulations, contact a Jackson Lewis attorney to discuss.

Historically, California has experienced the most destructive wildfires in the months of September and October.  As we head into those months, employers should make sure they are familiar with California’s wildfire smoke standard.  Harmful air quality from wildfire smoke can occur anywhere in the state on short notice, so it is vital that employers prepare early.

With some exceptions, the standard applies to workplaces where the air quality index is 151 (Unhealthy) or higher and where it’s reasonably anticipated that employees may be exposed to wildfire smoke.  In addition to applying to outdoor settings, the standard also applies to indoor locations where the air is not filtered or if doors and windows are kept open, such as warehouses, packing, manufacturing, and distribution facilities.

Under the wildfire smoke standard, employers must protect employees from smoke by:

  • Monitoring the local air quality index;
  • Ensure open communication with employees;
  • Train employees on the information contained in Appendix B to Section 5141.1;
  • Modifying the workplace, if possible, to reduce exposure to wildfire smoke; and
  • Providing proper respiratory protection, like N95 respirators, for voluntary use when work must be performed in a location with poor air quality.

Moreover, if the air quality index for particulate matter (PM) 2.5 exceeds 500 due to wildfire smoke, respirator use is mandatory. Employers must make sure employees are using respirators correctly in these situations.  If employers cannot move operations and do not have access to respiratory protection, then operations may need to be stopped until the air quality improves.

To assist employers, Cal/OSHA maintains a list of vendors who report available supplies of N95 disposable respirators, which is updated regularly.

If you have questions about wildfire workplace safety requirements or related issues with Cal/OSHA compliance, 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, with much fanfare, California announced it was reopening and lifting many of the COVID-19 restrictions that had been in place through state executive and health department orders. However, as there have been surges of COVID-19 across the state, many state and local orders requiring COVID-19 controls have changed in response. Mask mandates and vaccination requirements for certain workers, in particular, have been on the rise. Employers should carefully review new state and local guidance as well as their procedures to account for the new developments.

Mask Requirements

California Department of Industrial Relations Division of Occupational Safety and Health, better known as Cal/OSHA, updated emergency temporary standard requirements in June. These changes included adjustments to face-covering requirements for fully vaccinated workers while indoors and outdoors to mirror the California Department of Public Health (“CDPH”) guidance in place at the time of California’s reopening. This meant fully vaccinated employees were not required to wear face coverings while indoors so long as their employer had verified their vaccination status. In making this change, however, Cal/OSHA’s emergency temporary standard continued to direct employers to follow directives and orders from the state and local health departments, as well as CDPH guidance on the use of face coverings. Because the emergency temporary standard continues to direct employers to follow CDPH guidance, the Standards Board has indicated they do not plan to revise current emergency temporary standards on COVID-19 until December. On August 25, 2021, Cal/OSHA also stated in a press release that it “recommends” employers and workers follow the updated guidance from CDPH.  It is important that employers review the different standards and follow the stricter standard that applies to their business.

On July 28th the CDPH revised its guidance regarding the use of face coverings to include recommending universal masking indoors statewide. Significantly, the CDPH also mandated masks for all individuals, regardless of vaccination status, on public transit, indoors in K-12 schools, childcare, emergency shelters, cooling centers, healthcare settings, state and local correctional facilities and detention centers, homeless shelters, long term care settings, and adult and senior care facilities as defined by the Order.

For unvaccinated individuals, CDPH stated masks were required in indoor public settings and businesses subject to certain exemptions.

The guidance was issued after changes in the Centers for Disease Control (“CDC”) guidance recommending masking for indoor settings in areas with substantial and high transmission of COVID-19.

Even before the CDPH revised its face-covering guidance, several counties issued masking mandates, and more continue to join. Currently, the following counties require face coverings indoors regardless of vaccination status:

·       Alameda

·       Contra Costa

·       Humboldt

·       Imperial

·       Los Angeles

·       Marin

·       Mendocino

·       Mono

·       Napa

·       Nevada

 

·       Orange

·       Sacramento

·       San Francisco

·       San Mateo

·       Santa Barbara

·       Santa Clara

·       Santa Cruz

·      Sierra 

·      Sonoma

·       Trinity

·       Ventura

·       Yolo

 

Vaccination Requirements

The State of California, through CDPH, has issued several orders implementing the state’s vaccination and workplace testing strategy for reducing COVID-19 case counts. Collectively, these orders require health care workers in certain facility settings to be vaccinated by September 30, 2021 or obtain an exemption from the vaccination requirement for religious reasons or a qualifying medical or health exception. If a worker covered by the orders is exempted, the workers must undergo testing at set frequencies depending on when they enter certain health care facilities and if those facilities are considered high risk. California has instituted similar strategies for workers in school settings.

Several counties have issued requirements that piggyback on the state mandates or place requirements for vaccine verification on particular industries.

If you need information on local or state orders register to review the Jackson Lewis’ COVID-19 Advisor. If you have questions on compliance with COVID-19 workplace requirements, reach out to a Jackson Lewis attorney to discuss.