At the start of 2021, California’s family and medical leave law, the California Family Rights Act (CFRA), expanded its coverage to apply to smaller employers—from employers with 50 or more employees to those with just 5 or more employees.  More recently, during the 2021 legislative session, California’s governor signed legislation to add “parent-in-laws” under the coverage of care for a family member.

Due to the continued expansion of CFRA, employers with California employees should refresh themselves with the basics as there are significant differences from the federal Family Medical Leave Act (FMLA).

Read the full article at Jackson Lewis’ Disability, Leave & Health Management Blog.

Most employees in San Francisco (and throughout California)  receive one hour of paid sick leave for every 30 hours worked.  The San Francisco Board of Supervisors is now considering an ordinance that would broaden the availability of paid sick leave to domestic workers by establishing a “portable” paid sick leave system.

The “Domestic Workers’ Equal Access to Paid Sick Leave Through a Portable System” ordinance would require any employer of domestic workers, including individual households, to provide their workers with paid time off through a portable benefits system.

Under the current version of the proposed ordinance, a domestic worker includes an individual who provides labor or services in a residence caring for a child; serving as a companion, or providing other non-medical care or services for a sick, convalescing, disabled, or senior person; cleaning, cooking, providing food or butler service, gardening, personal organizing, or performing other in-home personal or domestic service. A domestic worker also includes an individual who as part of their employment or contract resides in the personal residence of the hiring entity.

A “hiring entity” is defined as any person who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency contracts with or hires a domestic worker.

Under the proposal, a hiring entity shall without regard to the employment classification of the domestic worker, provide paid sick leave funds. The domestic worker would then accrue a right to paid sick leave in a manner similar to other employees, i.e. not less than one hour of net pay, at the worker’s regular rate of pay, for every 30 hours of work for the hiring entities.

The right to paid sick leave would accrue in hour-unit increments, but the funds would not be transferred from the hiring entity to the domestic worker until the domestic worker requests the paid sick leave funds. The hiring entity would be responsible for any tax withholding or tax reporting obligations for the contribution at the time the paid sick leave funds are transferred. Hiring entities may not interfere with or deny the exercise of any right protected under this new ordinance, nor may they take any adverse action against any domestic worker who exercises their right protected under this new ordinance.

If passed, the San Francisco Office of Economic and Workforce Development would be tasked with developing and administering the portable paid sick leave system in an effort to minimize administrative burdens for the hiring entity and domestic worker. The system will track each covered worker’s hours worked for a hiring entity and net pay rates and calculate the accrued right to paid sick leave funds. The system will also coordinate the transfer of funds from one or more hiring entities from which the right to paid leave has accrued.

The ordinance would not be operative until sometime in 2022 if passed.

If you have questions about this proposed ordinance or issues related to paid sick leave requirements contact a Jackson Lewis attorney to discuss.

California’s drive toward a 15-dollar minimum wage for all employers continues. Effective January 1, 2022, 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. Employers must remember this increase also affects minimum salary requirements for exempt employees.

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

Additionally, the following local minimum wage increases go into effect on January 1, 2022, and are differentiated by employer size:

Hayward

Employers with 25 or fewer employees:

 

$14.52 per hour

Employers with 26 or more employees:

 

$15.56 per hour

Novato

Employers with 1 to 25 employees:

 

$15.00 per hour

Employers with 26- 99 employees:

 

$15.53 per hour

Employers with 100 or more employees:

 

$15.77

Sonoma

Employers with 25 or fewer employees:

 

$15.00 per hour

Employers with 26 or more employees:

 

$16.00 per hour

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 $16.20 per hour
Burlingame $15.60 per hour
Cupertino $16.40 per hour
Daly City $15.53 per hour
East Palo Alto $15.60 per hour
El Cerrito $16.37 per hour
Half Moon Bay $15.56 per hour
Los Altos $16.40 per hour
Menlo Park $15.75 per hour
Mountain View $17.10 per hour
Oakland $15.06 per hour
Palo Alto $16.45 per hour
Petaluma $15.85 per hour
Redwood City $16.20 per hour
Richmond $15.54 per hour
San Carlos $15.77 per hour
San Diego $15.00 per hour
San Jose $16.20 per hour
San Mateo $16.20 per hour
Santa Clara $16.40 per hour
Santa Rosa $15.85 per hour
South San Francisco $15.80 per hour
Sunnyvale $17.10 per hour

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

To ensure your company has up-to-date minimum wage information, subscribe to Jackson Lewis’ Minimum Wage Watch, which provides alerts on changes in the minimum wage in California and around the country.

If you have questions about minimum wage compliance contact a Jackson Lewis attorney to discuss.

 

As we approach the holiday season, employers may have uncertainty about handling holiday pay and related issues with holiday closures.

Under California law, hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. In other words, there is no requirement that employers pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium required for work performed in excess of eight hours in a workday or 40 hours in a workweek.

There is also no requirement that an employer provides employees with paid holidays. If an employer provides paid holidays for its employees, the hours paid for the holiday do not count toward hours worked for purposes of overtime calculation.

Another issue that employers should consider with wages and the holidays are paydays. If a designated payday will fall on a holiday listed in the California Government Code, including a Saturday or Sunday, employers may pay on the next business day after the holiday.

The holidays listed in the Government Code are as follows:

  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Lincoln’s Birthday
  • Third Monday in February — Washington’s Birthday
  • March 31 – Cesar Chaves Day
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • September 9 – Admission Day
  • Fourth Friday in September – Indigenous Peoples’ Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • Fourth Thursday in November — Thanksgiving Day
  • December 25 — Christmas
  • Other days appointed by the governor for a public fast, thanksgiving or holiday

If you have questions about handling employee holiday pay, or related issues contact a Jackson Lewis attorney to discuss.

On November 15, 2021, the city council of West Hollywood passed a comprehensive ordinance that implements the highest minimum wage in the country and new leave requirements for employees in the city.

Most requirements under the ordinance take effect for hotel employers, defined as owning, controlling, or operating a hotel in the city or owns, controls, and/or operates any contracted, leased, or sublet premises connected to or operated in a hotel, on January 1, 2022.

For other employers in the city of West Hollywood, many of the requirements become effective July 1, 2022.

Minimum Wage

Under the West Hollywood Ordinance, the city starts a stair-step climb, which includes two increases per year until July 2023.

1/1/2022 7/1/2022 1/1/2023 7/1/2023
Hotel Employers $17.64 $18.31* No change $18.77*
Employers with 50 Employees or more $15.50 $16.50 $17.50 $18.77*
Employers with Less than 50 Employees $15.00 $16.00 $17.00 $18.77*

*This is an estimate, the actual wage will be determined by the cost-of-living adjustment for that year.

Paid Leave

The ordinance also implements a hybrid leave which provides that both full and part-time employees are provided paid time off for sick leave, vacation, or personal necessity.

Employees must be eligible to use accrued paid time off after the first 6 months of employment or consistent with company policies whichever is sooner.

Full-time employees, defined as working at least 40 hours a week or as defined by the employer shall be provided 96 compensated hours.  Full-time employees shall accrue at least 96 compensated time off hours per year.

A part-time employee, defined as an employee who works less than 40 hours per week shall accrue compensated time off in increments proportional to that accrued by someone who works forty hours in a week.

After the employee reaches the maximum accrued time off, an employer shall provide a cash payment once every 30 days for accrued compensated time off over the maximum. An employer may provide an employee with the option of cashing out any portion of the accrued compensated time off under the maximum, but the employer may not require the employee to cash out any accrued time off.

Unpaid Leave

Under the new ordinance, West Hollywood employers must permit full-time employees to take at least 90 additional hours per year of uncompensated time to be used for sick leave for the illness of the employee or a member of the employee’s immediate family when the employee has exhausted his or her compensated time off for the year.

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.

As uncertainty about the federal OSHA Emergency Temporary Standard persists, Cal/OSHA’s Standards Board has announced it will not discuss the changes to California COVID-19 ETS at its November 18th meeting. The Board’s consideration of the Horcher proposal (a verbatim adoption of the federal OSHA regulation) will be delayed until there is a more settled situation with the litigation regarding the federal OSHA standard.

In the meantime, Cal/OSHA’s ETS as passed in June remains in effect.

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.

Veterans Day is a federal holiday in the United States for honoring military veterans, who are people who have served in the United States Armed Forces. On this special day, it is also a time to remember workplace protections for veterans, including those currently serving in the military.

California’s Fair Employment and Housing Act (FEHA) and its implementing regulations prohibit workplace discrimination and harassment based on actual or perceived protected categories. One of the protected groups under the FEHA is members of the military or military veterans. As such, it is unlawful for employers to discriminate against or harass employees because of their military or veteran status.

But who is a veteran or military member under the FEHA? The answer to this question may seem obvious, however, who qualifies as a veteran or a military member in California may vary depending on the specific law involved. For example, under certain criminal code sections, only those on active-duty status or veteran status qualify. Under the Government Code pertaining to state civil service, “veteran” means those who have served full-time in the armed forces in times of national emergency or state military emergency or during any expedition of the armed forces.

However, the FEHA has a very broad definition of what constitutes “veteran or military status.” Under Government Code section 12926 (k) “veteran or military status” means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard. There is no active duty, federal, or qualifying service requirement for the robust protection afforded under the FEHA.

Last year, the California legislature further clarified through Assembly Bill (AB) 3364 that the FEHA prohibits discrimination against individuals who either are veterans or because of the individual’s military status, instead of veteran and a certain articulated military status. Employers should keep this broad definition in mind when making decisions that could implicate the FEHA protections.

If you have questions about hiring, employing, and/or terminating past or present military personnel or related issues, contact a Jackson Lewis attorney to discuss.

Last week, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) pertaining to COVID-19. While there are already lawsuits to block the Federal ETS, California employers are wondering what is going to happen with Cal/OSHA’s current ETS?

Prior to the issuance of the Federal ETS, Cal/OSHA had released a proposal to amend the state’s ETS. However, the proposed changes are not as stringent as the new Federal ETS.

On Monday, the Cal/OSHA Safety and Health Standards Board posted an agenda for a November 18, 2021 meeting indicating it will discuss the adoption of a new ETS, presumably to comply with the Federal ETS requirements. The agenda notes that the draft regulations will be posted on Cal/OSHA’s website as soon as feasible. In the meantime, California employers can only speculate as to what their new compliance requirements will be.

Generally, the States operating under a State Plan have 6 months to adopt a new permanent Federal standard. However, since OSHA adopted an ETS and not a permanent standard, the states, including California, only have 30 days to adopt their own 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.

The Ninth Circuit Court of Appeals has ruled that an ex-Tinder employee must arbitrate her claims against her former employer and cannot pursue her claims in court, even though her claims arose before she executed an arbitration agreement. In reaching this decision, the Ninth Circuit not only enforced the broad language of the parties’ arbitration agreement, but also held that a unilateral modification clause (granting the employer the right to make changes to the agreement) does not, in and of itself, render an arbitration agreement unenforceable. Elizabeth Sanfilippo v. Match Group LLC et al., Case No. 20-55819, 2021 U.S. App. Lexis 29263 (9th Cir. Sept. 28, 2021).

Read the full article at Jackson Lewis’ Litigators at Work Blog.

In June, California relaxed many of its COVID-19 restrictions, including allowing fully vaccinated individuals to go without a face covering indoors, with limited exception. Also in June, Cal/OSHA passed an amended Emergency Temporary Standard (“ETS”) that allowed for fully vaccinated employees to go without a face covering in most situations.

However, as California started to see an increase in COVID-19 cases, many county health departments reinstated mask mandates regardless of an individual’s vaccination status, including Los Angeles and Counties in the San Francisco Bay Area. And in July, the California Department of Public Health also issued a recommendation for universal masking, though it was not a mandate.

As California heads into the end of the year, some counties are now setting up criteria to lift mask mandates.

At the start of October, the Bay Area Health Officers issued criteria for lifting indoor masking requirements. Under these criteria, the following would need to occur for indoor masking requirements to be lifted:

  • The jurisdiction reaches the moderate (yellow) COVID-19 transmission tier as defined by the Centers for Disease Control & Prevention (CDC), and remains there for at least three weeks, AND
  • COVID-19 hospitalizations in the jurisdiction are low and stable, in the judgment of the health officer, AND
  • 80% of the jurisdiction’s total population is fully vaccinated, OR 8 weeks have passed since the COVID-19 vaccine has been authorized for emergency use for 5- to 11-year-olds.

Thus far, only Marin County has satisfied the criteria and lifted its mask mandate.

And at the start of November, the Los Angeles County Department of Public Health (LADPH) released its own framework for lifting its mask mandates.

For outdoor mega-events involving more than 10,000 people, LADPH outlined that before masking requirements are lifted, all of the following criteria need to be met:

  • L.A. County case rates must demonstrate three consecutive weeks at or below moderate transmission as defined by the CDC – that is, less than 50 new weekly cases per 100,000 residents;
  • hospitalizations remain low and stable at or below 600 daily COVID hospitalizations for three consecutive weeks;
  • 80% or more of county residents 12 and older are fully vaccinated; and,
  • there are no emerging reports of significantly circulating new variants of concern that threaten vaccine effectiveness.

For masking requirements to be lifted at indoor events or establishments involving fewer than 1,000 people, including indoor offices and worksites,

  • sites must have a vaccination verification process in place, and,
  • All employees and customers must be fully vaccinated, accommodating with additional requirements those employees with approved exemptions.
  • And L.A. County metrics must meet all of the same standards as for lifting masking requirements at outdoor mega-events.

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for Updates in workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.