As the state of California approaches one year of being under various shelter-in-place orders, the Labor & Workforce Development Agency and the Department of Industrial Relations have consolidated resources for employers into a new website. The site provides information on how to ensure a safer and healthier workplace. It also has information on handling employees who may be sick or exposed to COVID-19 in the form of an FAQ.

The site has training resources for employees and employers to learn more about preventing the spread of COVID-19 in the workplace.

The new state website further includes a “road map” section in which employers can select their county and industry and receive information about regulations and requirements relevant to their workforce. The guidance includes required safety protocols such as social distancing, as well as potential employee benefits that the employer may be required to comply with. It additionally provides information on the steps to take following a COVID-19 case in the workplace, including local health department contact information.

The guidance, while purporting to be “customized” by the state, is essentially pulling from state and county guidances already available. Employers will still need to sift through the information to determine how to best implement requirements and ensure compliance.

Jackson Lewis continues to track state and local developments related to COVID-19. If you have questions about how to comply with state and local requirements or have other questions about COVID-19 and the workplace, contact a Jackson Lewis attorney to discuss.

On January 1, 2021, the California Family Rights Act (CFRA) expanded in several ways, including that small employers (those with 5 or more employees) must now provide up to 12 workweeks of CFRA leave within a 12-month period to eligible employees. With the expanded applicability of CFRA, it’s important for California employers to be aware of the sometimes-confusing interplay of CFRA with other state and federal leave laws when it comes to an employee’s pregnancy.

The Laws Employers Need to Know

Aside from CFRA, California’s Pregnancy Disability Leave law (PDL) and the federal Family Medical Leave Act (FMLA) may also come into play when an employee is pregnant, gives birth, and/or seeks leave to bond with a baby.

PDL provides eligible employees with up to 4 months (or 17 1/3 weeks) of unpaid, job-protected leave, per pregnancy, while the employee is disabled due to pregnancy, childbirth, or a related medical condition. Employers with five or more employees must comply with PDL.

Next is the Family Medical Leave Act (FMLA) which provides eligible pregnant employees with up to 12 workweeks of unpaid, job-protected leave within a 12-month period for the employee’s serious health condition (including pregnancy, childbirth, or related medical conditions) or baby bonding purposes. Employers are not required to provide FMLA leave if, among other reasons, the employee seeking leave works at a worksite with fewer than 50 employees in a 75-mile radius.

Meanwhile, CFRA authorizes eligible employees to take up to 12 workweeks of unpaid job-protected leave within a 12-month period for baby bonding purposes. Unlike FMLA, CFRA leave does not get used during an employee’s leave because of pregnancy, childbirth, or related medical conditions (though CFRA leave may be available for other serious health conditions of the employee).

In addition, FMLA and CFRA both provide certain leave entitlements for employees who need leave to care for specified family members with a serious health condition.

How the Laws Work Together

The overlap between FMLA, CFRA, and PDL may seem confusing – how do they work when an employee becomes pregnant?

The first thing employers should know is that FMLA runs “concurrently” with both PDL and CFRA. This means that FMLA does not provide any additional leave entitlement beyond the allowances provided under PDL and CFRA for the purposes of a pregnancy-related leave.

In practice, PDL is provided to a pregnant employee first, potentially before an employee has even given birth. Once an employee is no longer considered disabled by pregnancy, childbirth, or related medical conditions, an eligible employee could then take up to 12 workweeks of baby bonding leave under CFRA. If applicable, FMLA would run concurrently with and get used during, the employee’s PDL and CFRA leaves.

This means, between 17 1/3 weeks of PDL and 12 workweeks of CFRA, an eligible California employee may take up to 29 1/3 weeks off due to pregnancy, childbirth, and baby bonding. However, if an employee exhausts the PDL leave entitlement and remains disabled, other leaves and considerations may come into play such as disability accommodation.

If you have questions about CFRA or other issues related to pregnancy leave eligibility, contact a Jackson Lewis attorney to discuss.

Is the California Supreme Court about to make it more difficult to dispose of whistleblower retaliation claims?  That may well be the case. The Supreme Court has agreed to answer the 9th Circuit Court of Appeals’ question about California law and unlawful retaliation against an employee in Lawson v. PPG Architectural Finishes, Inc. In particular, the 9th Circuit asks the California Supreme Court to set the evidentiary standard for whistleblower retaliation claims brought under California Labor Code section 1102.5.

The Lawson case involves a manufacturer of paint, stains, caulks, and other products. Mr. Lawson was a territory manager whose duties included merchandising products to home improvement stores and ensuring that the company’s displays were stocked and in good condition. Mr. Lawson was allegedly directed by his supervisor to handle a product in a way that fraudulently removed a slow-selling product from its inventory. Mr. Lawson told his supervisor he would not do this and reported the directive to the company’s ethics hotline on two separate occasions. The second report to the ethics hotline resulted in an investigation. At the same time, Mr. Lawson received poor ratings for his work, was put on a performance improvement plan, and eventually terminated.

Mr. Lawson alleged in his complaint against the company, filed in the United States District Court, that he was retaliated against as a whistleblower.

The trial court in Lawson applied the McDonnell Douglas test which employs burden-shifting between the plaintiff and the employer.  The McDonnell Douglas test originated in the context of Title VII, the federal statute governing workplace discrimination, harassment, and retaliation.  The trial court concluded that the plaintiff failed to carry his burden to raise triable issues of fact regarding pretext and granted the employer’s motion for summary judgment.

Mr. Lawson argued in his appeal to the 9th Circuit that the trial court should have applied the evidentiary standard outlined in California Labor Code section 1102.6. That section states that once it has been demonstrated by a preponderance of the evidence that the whistleblower activity was a contributing factor in the retaliation against the employee, the employer’s burden of proof is to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons.

The 9th Circuit noted in its question to the California Supreme Court that application of the McDonnell Douglas test to whistleblower claims under Labor Code section 1102.5 “seems to ignore [a] critical intervening statutory amendment” by which the California legislature established the evidentiary burdens of the parties participating in a civil action or administrative hearing involving a violation of the statute. Though this statement by the Circuit seems like a decision, the 9th Circuit pointed out three published California appellate court decisions that expressly applied McDonnell Douglas after the amendment. This contradiction between California’s statute and the court rulings is the root of the 9th Circuit’s question.

Critically, if the California Supreme Court rules that the evidentiary requirement under Labor Code section 1102.6 applies, disposing of whistleblower retaliation claims prior to trial will become extremely difficult due to the high evidentiary standard applied to the employer.

Jackson Lewis will continue to track this case and others affecting California employment law litigation. If you have questions regarding this case or related issues, contact a Jackson Lewis attorney to discuss.

Current and former employees have a right to inspect their personnel file at reasonable times. So, when a current or former employee intends to bring or has brought a claim against their employer, they will likely request a copy of their personnel file. However, if the employer has failed to properly maintain their employee’s personnel files, there isn’t a rewind button to recreate that file. This is what litigators would like employers to know about employee personnel files.

Maintaining Employee Personnel Files

To comply with the requirements under California law to allow inspection of employee personnel files, an employer must maintain former employees’ personnel files for at least three years following the employee’s separation from the company.

What Should Be In the Personnel File

Under the California Labor Code, employers are required to give an employee a copy of any document that the employee signed to obtain and/or hold their employment.

  1. Recruiting and screening documents such as applications, resumes, and educational transcripts
  2. Job descriptions
  3. Handbook and policy acknowledgments
  4. Employment agreements, if applicable

Other records that are generally kept in personnel files are those used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action. This could include the following:

  1. Notices of commendation, warning, or discipline
  2. Notices of layoff, leave of absence, and vacation
  3. Education and training notices and records
  4. Performance reviews
  5. Attendance records
  6. Payroll authorization forms
  7. Termination notices and documentation

What Not to Keep In The Personnel File

The number one item that should not be kept in the employee’s personnel file is medical information. Under California regulations, medical information should be kept separate from the personnel file to protect the employee’s confidential information. Medical information could include records obtained as part of a workers’ compensation claim and/or the interactive process where doctor’s certifications are provided for a leave of absence or request for accommodations.

What is an Employee Not Entitled to Review

Under California law an employee does not have the right to review the following:

  1. Records relating to the investigation of a possible criminal offense
  2. Letters of reference
  3. Ratings, reports, or records that were:
    • Obtained from the employee’s prior employer
    • Prepared by identifiable examination committee members
    • Obtained in connection with a promotional examination

While having organized personnel files may not insulate an employer from a legal claim, having the appropriate documents retained for the appropriate amount of time and in the way required under California law will help streamline litigation for the employer and their attorney.

If you have questions about employee personnel files or related issues pertaining to employee records, contact a Jackson Lewis attorney to discuss.

California currently has a patchwork of local COVID-19 supplemental paid sick leave ordinances which remain in effect in 2021. But what about employers that are not located in those localities with a supplemental paid sick leave ordinance? Or employees who have exhausted supplement paid sick leave allotments?

Before the pandemic, California had the Healthy Workplace Healthy Family Act of 2014 (the Act), which mandated most employers in the state provide paid sick leave to employees.  Under the Act, employers must provide for the accrual of one hour for every 30 hours worked by the employee and allow the use of at least 24 hours or provide a lump sum of 24 hours of paid sick leave at the beginning of a 12-month period.

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

Following in the footsteps of the City of Long Beach, the cities of Montebello and Oakland have passed premium pay ordinances mandating additional pay for certain grocery and drug store employees. Premium pay or “hazard pay” for grocery employees seems to be the new trend in COVID-19 regulations. This trend continues despite recent lawsuits filed in federal courts by the California Grocers Association, seeking to block the new ordinances in Long Beach, Oakland, and Montebello.

The city of Montebello passed its urgency ordinance on January 27, 2021. The ordinance applies to grocery and drug stores with at least 300 employees nationwide and more than 15 employees per store within the city of Montebello. The ordinance requires covered employers to pay employees working within the city an additional $4.00 per hour. The ordinance went into effect immediately and will sunset in 180 days unless extended by the City Council. The City will also vote on a non-urgency version of the ordinance, this was due to concerns about litigation over the ordinance. A hearing on a preliminary injunction against the Montebello ordinance is scheduled for February 19, 2021.

Oakland’s ordinance applies only to grocery stores that employ 500 or more employees nationwide. The ordinance requires covered employers to pay employees working within the city an additional $5.00 per hour. Oakland’s ordinance will remain in effect until the City returns to the minimal (yellow) risk level under the state of California’s Tier system. The California Grocers Association lawsuit against Oakland was filed on February 3, 2021, alleging violations of the federal and California Equal Protection Clauses and preemption by the National Labor Relations Act.

On February 2, 2021, the Los Angeles City Council also voted unanimously to move forward with a proposed emergency ordinance that would require grocery and pharmacy retailers with 300 or more employees nationally and 10 or more employees on-site to add $5.00 per hour for all hourly, non-managerial employees’ wages for 120 days. The vote requested the city attorney to prepare the ordinance and the chief legislative analyst to report on potential economic impacts of the ordinance and potential legal challenges. The city of San Jose and the county of Santa Clara are considering similar ordinances.

Though the federal court denied an ex parte application for a temporary restraining order against the Long Beach ordinance, a hearing for a preliminary injunction of the Long Beach ordinance will be heard on February 19, 2021.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about premium pay ordinances or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

California SB 973 requires employers that (1) file EEO-1 reports and (2) employ more than 100 employees to submit data to the California Department of Fair Employment and Housing (DFEH) annually that shows pay by race and gender for their California employees. It was signed into law on September 30, 2020, and DFEH has been busy providing guidance to employers and preparing the pay data reporting portal.

Additional — perhaps final — guidance was released on February 1. DFEH posted FAQs addressing Professional Employer Organizations and Acquisitions, Mergers, and Spinoffs.

It also released a 68-page User Guide that discuss the mechanics of data submission and provided templates (both in Excel and CSV format) to assist employers in submitting their required pay data.

Read the full article at Jackson Lewis Pay Equity Advisor Blog.

In 2020, employers with employees in California were inundated with new compliance requirements brought on by the COVID-19 pandemic. It seemed that another local government or the state passed a COVID-19 supplemental paid sick leave requirement nearly every month.  These supplemental sick leave benefits applied to employees who were not covered by the federal Families First Coronavirus Response Act (FFCRA). Many of the ordinances were written to sunset with the FFCRA or on December 31, 2020.

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

COVID-19 cases continue to surge around Southern California, causing the region to remain under the restrictions imposed by the statewide Regional Stay at Home Order longer than previously predicted. In response, local governments are looking for ways to reward the grocery workers who have been deemed essential since the start of the pandemic.

The City of Long Beach is the first to pass a “Hero Pay” ordinance, which requires certain grocery stores to pay workers “premium pay,” or additional compensation that is separate from an employee’s base pay, bonuses, commissions, and tips. The ordinance went into effect immediately on January 22, 2021, and remains in effect for 120 days from enactment, unless extended by the city council.

Covered Businesses

This ordinance applies to “grocery stores,” which include businesses that devote seventy percent or more of their business to retailing a general range of food products (fresh or packaged). It applies to grocery stores with more than 300 grocery workers nationally and more than 15 employees per grocery store within the City of Long Beach.

Covered Employees

The ordinance only requires premium pay be provided to those grocery workers who perform work within the City of Long Beach. However, the ordinance excludes managers, supervisors, and confidential employees from the premium pay requirement.

Premium Pay

Covered businesses must provide grocery workers with an additional $4.00 per hour for each hour worked.

Additional Requirements

Covered businesses must also provide written notice of rights established by the ordinance. The notice must include the following information:

  1. The right to premium pay guaranteed by the ordinance;
  2. The right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and,
  3. The right to bring a civil action for a violation of the requirements of the ordinance.

The notice must be posted in a location of the store used by employees for breaks and in an “electronic format that is readily accessible to the grocery workers.”

Covered businesses must also retain records that document compliance with the ordinance for a period of two years.

The City and County of Los Angeles, as well as the City of Santa Monica, are currently considering similar ordinances.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about premium pay ordinances or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

Joining other counties and cities in California, the City of Oakland voted to extend its Emergency Paid Sick Leave ordinance into 2021. The amended ordinance applies retroactively to December 31, 2020, and will remain in effect until the City’s Declaration of COVID-19 Emergency expires.

The amended ordinance applies to all employers that have employees working in the City of Oakland, with the exception of certain smaller employers that are exempt from the ordinance’s requirements.

No Additional Time

Like the original ordinance, the amended ordinance provides full-time employees with 80 hours of Emergency Paid Sick leave (part-time employees receive a pro-rata amount). However, the amended ordinance states that employers are only required to provide Emergency Paid Sick leave on a one-time basis.  In other words, if an employer already provided an employee with all of the Emergency Paid Sick leave available under the original ordinance, it does not have to provide that employee with additional leave under the amended ordinance. In addition, an employer may credit any Emergency Paid Sick Leave hours provided to an employee prior to January 1, 2021, to its obligation to provide leave under the amended ordinance.

Off-Set Available

Employers may credit paid sick leave previously provided to employees under the Families First Coronavirus Response Act (FFCRA) or the state-wide COVID-19 Supplemental Paid Sick Leave law against the obligation to provide leave under the amended ordinance.

Reasons for Leave

The amended ordinance does not change the reasons for which Emergency Paid Sick leave may be taken. Employers must provide leave to employees who are unable to work due to the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to an isolation or quarantine order, or has been advised to self-quarantine;
  • The employee is caring for their child because the child’s school or place of care is closed or unavailable due to COVID-19 precautions;
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor; or
  • The employee is caring for a family member who has been diagnosed with COVID-19 or experiencing symptoms of COVID-19.

The ordinance also provides paid leave for employees who:

  • Are at least 65 years old;
  • Have a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system;
  • Have a condition identified by an Alameda County, California, or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19, or
  • Have any condition certified by a healthcare professional as putting the employee at heightened risk of serious illness or death if exposed to COVID-19.

The County of Los Angeles will be considering its own extension on January 26, 2021, which will include an expansion to those employees previously covered by the FFCRA.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.