San Francisco Employers May Have to Pay More in Paid Parental Leave Benefits in 2020

By Cepideh Roufougar and Kate L. Brown on August 19, 2019

As Bay Area employers are well aware, San Francisco has several local employment-related ordinances that provide additional benefits to individuals performing work within the geographical boundaries of the City. One such benefit is paid parental leave.

Currently, employers who have 20 or more employees (located anywhere) are required to provide eligible San Francisco employees with up to 6 weeks of supplemental compensation when an employee takes time off to bond with a new child and the employee receives Paid Family Leave benefits from the State of California. Effective July 1, 2020, this requirement will increase to 8 weeks of supplemental compensation when the State of California Paid Family Leave (PFL) program expands from 6 weeks of benefits to 8 weeks of benefits. You can read more about the changes coming to the PFL program here.

Employers should review their parental leave policies to ensure that they provide for sufficient supplemental compensation to comply with the requirements of the San Francisco Paid Parental Leave Ordinance. For any questions regarding this issue, and other employer issues, please contact Jackson Lewis P.C.’s San Francisco office or the JL attorney you normally work with.

Does the CCPA Apply to Your Business?

By Joseph J. Lazzarotti, Jason C. Gavejian, Mary T. Costigan and Maya Atrakchi on August 14, 2019

The California Consumer Privacy Act (CCPA), considered the most expansive U.S. privacy laws to date, is set to take effect January 1, 2020. In short, the CCPA places limitations on the collection and sale of a consumer’s personal information and provides consumers certain rights with respect to their personal information. Wondering whether they will have to comply, many organizations are asking if the law will apply to them, hoping that being too small, being located outside of California, or “only having employee information,” among other things, might cause them not to have to gear up for CCPA.

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California Legislature Considers Electronic Notification for Fatalities and Serious Injuries

By Tressi L. Cordaro on August 13, 2019

Under current California law, an employer with an establishment in California must report a serious work-related injury, illness or death that occurs at the employer’s place of employment or in connection with their employment to the Division of Occupational Safety and Health by telephone or email within 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.

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Ninth Circuit Asks California Supreme Court: Is Absence of a Formal Meal and Rest Break Policy a Violation of California Law?

By Sarah H. Scheinhorn and Hazel U. Poei on August 6, 2019

In Brinker Rest. Corp. v. Superior Court (53 Cal. 4th 1004), the California Supreme Court explained that an employer must relieve the employee of all duty for the designated meal period, but need not ensure that the employee does not work. In other words, no policing of meal breaks by the employer is required; and employees can break themselves. Now, the Ninth Circuit is asking the California Supreme Court if employers must go further in spelling out formal policies on meal and rest breaks to comply with California law.

In Cole v. CRST Van Expedited, Inc. fka CRST, Inc. (9^th Cir. 2019) Case No. 0:17-cv-55606, a truck driver filed a putative class action lawsuit against his employer alleging drivers were not provided with requisite meal and rest breaks or compensation in lieu thereof. The employer presented testimony that the drivers were expected to run their own trips and take breaks when needed and that California meal and rest break policies were posted on bulletin boards at the employer’s terminal. Relying on Brinker, the court granted summary judgment in favor of the employer. The district court also granted the employer’s motion to decertify the meal and rest break classes. On appeal, the employee claimed the district court erred because California law requires that employers affirmatively provide breaks by adopting a policy authorizing them. The plaintiff’s employer had no policy, nor did it record meal breaks on its payroll statements or pay for rest breaks.

By order filed August 1, 2019, the Ninth Circuit requested that the California Supreme Court resolve two certified questions: (1) Does the absence of a formal policy regarding meal and rest breaks violate California law? and (2) Does an employer’s failure to keep records of meal and rest breaks taken by its employees create a rebuttable presumption that the meal and rest breaks were not provided? The Ninth Circuit observed that the answers to these questions are dispositive of this case, and are not answered by clear California precedent.

Whether and how the California Supreme Court answers these questions likely will impact an employer’s willingness to formally codify meal and rest breaks into their own written policies, may cause employers to exert more control over employees’ meal and rest breaks, and may even begin eating away at the Brinker decision.

Ninth Circuit Dismisses California Wage Claims by Oil Rig Workers, Following High Court Ruling

By Allyson S. Ascher on August 5, 2019

The Ninth Circuit recently dismissed California minimum wage and overtime claims in a class action brought by drilling platform worker, Brian Newton, against his former employer, Parker Drilling, following the United States Supreme Court’s decision in Parker Drilling Mgmt. Servs. v. Newton, 139 S. Ct. 1881 (2019).

In that case, the Supreme Court determined that workers on oil drilling platforms off the coast of California are covered by the Fair Labor Standards Act (FLSA), as opposed to California’s overtime and minimum wage laws because the platforms were outside California’s territorial waters. Specifically, the Court found that workers on the Outer Continental Shelf were subject to federal law, and that California wage law should not be applied since the FLSA left no significant gap in federal law for state law to fill. Because the Ninth Circuit did not fully analyze Newton’s other state claims (including pay stub and meal break violations and penalties under California’s Private Attorneys General Act), and held that Newton should be given leave to amend his complaint, the Supreme Court remanded the case back to the Ninth Circuit for further proceedings. Consistent with the Supreme Court’s decision, the Ninth Circuit has now dismissed Newton’s California minimum wage and overtime claims, and the case has been remanded to the district court for further proceedings. You can read our full analysis of the United States Supreme Court’s decision in Parker Drilling Mgmt. Servs. v. Newton, 139 S. Ct. 1881, 204 L. Ed. 2d 165 (2019) on the Jackson Lewis publications page.

Ninth Circuit to Ask California Supreme Court to Decide Retroactivity of ‘ABC’ Test, Withdraws Opinion

By Jonathan A. Siegel on July 25, 2019

Whether California’s recently adopted “ABC” test, used in the employee-versus-independent contractor analysis in cases involving California’s wage orders, must be applied retroactively should be decided by the California Supreme Court, a panel of the U.S. Court of Appeals for the Ninth Circuit has decided, withdrawing its controversial May 2, 2019, opinion. Vazquez v. Jan-Pro Franchising Int’l, Inc., 2019 U.S. App. LEXIS 21687 (9th Cir. July 22, 2019). The Ninth Circuit said it will certify that question to the California Supreme Court.

Please find the rest of this article on the Jackson Lewis publications page here.

California Extends Paid Family Leave from 6 Weeks to 8 Weeks

By Erin W. Kendrella on July 23, 2019

Beginning on July 1, 2020, California will extend the maximum duration of Paid Family Leave (PFL) benefits from six weeks to eight weeks. Individuals may receive benefits from California’s state disability insurance (SDI) program:

To care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner.
To bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

The PFL program is not a leave right and does not provide job protection, but other state and federal laws such as the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and the Parental Leave law can provide such protection for eligible employees.

The PFL program started in July 2004 and provides wage replacement to workers who take time off from work for an ill child, spouse, parent, grandparent, sibling, or domestic partner, or to bond with a child within one year of birth or adoption. Governor Gavin Newsom signed into law the most recent enactment, Senate Bill 83, on June 27, 2019. Senate Bill 83 was part of a larger state budget package for the new fiscal year that starts July 1, and is a move toward the governor’s goal of ultimately expanding paid family leave to six months (for two parents if leave is taken consecutively). To that end, Senate Bill 83 also requires the governor to propose, by November 2019, further benefit increases and job protections for individuals receiving PFL benefits, including an increase in PFL duration “to a full six months by 2021–22.”

In the next year, before Senate Bill 83’s extension takes effect, employers should consider reviewing and revising leave policies, procedures and practices, and their parental or other paid leave benefits to ensure compliance.

California First State to Clarify Definition of Race Discrimination to Include Hair Style. Proactive California Employers Should Review Their Policies and Practices

By Jonathan A. Siegel on July 22, 2019

In an important step for California, Governor Gavin Newsom signed SB 188 into law on July 3, 2019. SB 188 or also known as, the CROWN ACT, “Create a Respectful and Open Workplace for Natural Hair,” clarifies the definition of race for the workplace and educational institutions to include, but not limited to, hair texture and protective hairstyles, and defines protective hairstyles. While certain states have proposed legislation, California is likely the first state to protect employees from racial discrimination based on hairstyle. New York City banned hair discrimination earlier this year.

SB 188 is focused on addressing workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, which could potentially have a disparate impact on Black individuals. Section 1(d) of the law states that workplace dress and grooming policies that prohibit natural hair “are more likely to deter Black applicants” than any other group.

Employers can still generally maintain dress and grooming policies which require employees to secure their hair for safety and hygienic reasons in accordance with the law. SB 188 also makes it clear that employers can maintain dress and grooming policies, so long as they are “valid and non-discriminatory,” and do not have a “disparate impact.” See Governor Newsom Press Release.

California employers should review their dress and grooming policies for issues that might relate to the CROWN Act or other compliance issues. If you have any questions regarding the scope or impact of SB 188, please contact Jonathan A. Siegel or the Jackson Lewis attorney you normally work with.

California Pay Data Reporting Advances: EEOC May Not Be Alone for Long

By Christopher T. Patrick and Susan E. Groff on July 2, 2019

The recent focus on the EEOC’s new Component 2 to its EEO-1 Report has been undeniable. It requires employers report on the race, ethnicity, sex, job type, pay, and hours worked data of its employees.

OMB approved this data collection during the Obama Administration. Then, under President Donald Trump, the OMB reversed course, staying the obligation. Please find the rest of this article on our pay equity advisor blog here.