As kids head back to school, California employees with children may need time off for various reasons from school-related activities to kids who are sick. Here are reminders of the California leave entitlements for parents and caregivers.

School Activity Leave

Under California Labor Code Section 230.8, employers with 25 or more employees working at the same location must provide parents, guardians, or grandparents with custody of a child in grades kindergarten through 12 or attending a licensed daycare facility with up to 40 hours of unpaid leave per year.

This leave allows employees to participate in school activities, including field trips, school meetings, and childcare provider conferences. However, the leave is capped at eight hours per month.

Employers may require employees to use any accrued vacation time or other paid time off before taking unpaid leave for school activities. Additionally, employees must provide reasonable advance notice of the need for such leave.

Suspension or Expulsion Meeting

California Labor Code Section 230.7 prohibits all employers from discharging or discriminating against a parent or guardian employee for taking time off to appear at their student’s school for purposes of suspension or expulsion meetings pursuant to California Education Code section 48900.1.

Paid Sick Leave

When kids bring home the latest virus circulating at school, parents or guardians have the right to use their accrued Paid Sick Leave to care for a child. Paid sick leave under California law allows employees to take time off for the diagnosis, care, or treatment of an existing health condition, as well as preventive care, for both the employee and the employee’s family. At the start of 2024, the amount of mandated paid sick leave increased to five days or 40 hours. In addition, employers should check whether any local sick leave ordinances also apply.

If you have questions about California leave law or related issues contact a Jackson Lewis attorney to discuss.

In Stone v. Alameda Health System, the California Supreme Court considered whether all public entities that are not specifically governmental in nature are exempt from the obligations in the Labor Code such as meal and rest breaks and overtime, and whether penalties available under the Private Attorneys General Act (PAGA) apply to public entities. The Court held that public entities were exempt from obligations under the Labor Code unless specifically stated and that PAGA penalties do not apply to public employers.

Underlying Case

Highland Hospital is a facility operated by Alameda Health System (AHS), a public agency established to manage, administer, and control the medical center by the Board of Supervisors of Alameda County.

The plaintiffs in the underlying case were employees of Highland Hospital who brought a complaint alleging violations of the Labor Code and wage orders, specifically related to meal and rest breaks and derivative claims.

AHS demurred on the ground that it was a public entity and not subject to suit for the Labor Code violations asserted. The argument was predicated on a case that had held that provisions of the Labor Code apply only to private sector employees unless they are specifically made applicable to public employees.

California Supreme Court’s Opinion

The California Supreme Court considered several angles in reaching its conclusions regarding exemptions for public employers. The Court considered the legislative intent and determined the Legislature intended to exclude public employers from meal and rest break obligations and related statutes based on legislative history and actions. Further, the statutory language of the Labor Code and wage orders define “employer’ in such a way that excludes public entities.

The Court also reviewed prior case law in the area and found that appellate decisions have uniformly concluded, unless the laws in question expressly state otherwise, the Labor Code’s wage and hour requirements do not apply to public employers.

As to the PAGA application, the Court undertook a similar analysis finding that the statutory language of PAGA which references definitions in the Labor Code, does not include public employers. Moreover, the legislative history of PAGA indicated that it was not intended to apply to public employers.

The Court also noted public policy concerns in applying PAGA civil penalties to public entities, noting the argument that the Government Code seeks to protect public entities from penalties that are intended to punish and deter, similar to punitive damages. Moreover, diverting funds to pay penalties would interfere with public entities’ ability to fulfill their missions.

Based on the Court’s decision, Court of Appeal was directed to remand the matter to the trial court with directions to reinstate its ruling on the demurrer and conduct any further proceedings as appropriate.

If you have questions about the application of the ruling in Stone v. Alameda Health Systems or related issues, contact a Jackson Lewis attorney to discuss.

As Golden State employers know, a new workplace violence prevention law for non-healthcare employers went into effect on July 1, 2024.  Cal/OSHA, the agency charged with overseeing workplace safety and health, has been directed to develop regulations to implement this new law.

Many employers are hoping that the new regulations will shed some light on the ambiguities that plague the new law.  After all, employers and Cal/OSHA were instructed to comply with this new law before Cal/OSHA had an opportunity to draft or implement its regulations.  At this early stage in the drafting process, the utility of the final regulations remains to be seen.  However, employers have an opportunity to have their voices heard while these regulations are being put into place.

The proposed regulations are available for review and public comment.  The draft changes revise what was outlined in the law passed last year under the Labor Code.  Interested stakeholders may submit written comments to the Deputy Chief of Health, Eric Berg at eberg@dir.ca.gov until September 3, 2024.  

Here are the highlights of the proposed regulations:

  • Cal/OSHA proposes to further limit the “small, private worksite” exception.
    • The law does not apply to small, private worksites in compliance with Cal/OSHA’s injury and illness prevention requirements.  
    • The original statute defined these small worksites as “[p]laces of employment where there are less than 10 employees working at the place at any given time and that are not accessible to the public . . . .” 
    • The draft regulation proposes to further narrow the definition so that it would only apply to places that have 10 employees working at the place – removing the “at any given time” language.
  • Cal/OSHA provides examples of engineering controls and work practice controls to reduce workplace violence hazards.
    • Engineering controls (aspects of the built space, or a device that removes or creates a barrier to a workplace violence hazard) may include, but are not limited to:
      • electronic or mechanical access controls to employee-occupied areas;
      • weapon detectors (installed or handheld);
      • enclosed workstations with shatter-resistant glass;
      • deep service counters;
      • spaces configured to optimize employee access to exits,
      • escape routes, and alarms;
      • separate rooms or areas for high-risk persons;
      • locks on doors;
      • furniture affixed to the floor;
      • opaque glass (protects privacy, but allows employees to see where potential risks are);
      • improving lighting in dark areas, sight-aids, improving visibility, and removing sight barriers;
      • video monitoring and recording; and
      • personal and workplace alarms.
    • Work practice controls (procedures, rules, and staffing used to reduce workplace violence hazards) may include, but are not limited to:
      • appropriate staffing levels;
      • provision of dedicated security personnel;
      • an effective means to alert employees of the presence, location, and nature of a security threat;
      • control of visitor entry;
      • methods and procedures to prevent unauthorized firearms and weapons in the workplace;
      • employee training on workplace violence prevention methods;
      • and employee training on procedures to follow in the event of a workplace violence incident or emergency.
  • Cal/OSHA proposes changes to the employer’s system for communicating regarding workplace violence matters.
    • Employers already are required to communicate with employees regarding workplace violence concerns, including allowing employees to report concerns, investigate employee concerns, and notify employees of the results of the investigation and corrective action to be taken.  The proposed regulations would:
      • Give employers these same obligations for workplace violence concerns reported by authorized employee representatives.
      • Require employers to keep a record of all reports of workplace violence concerns, including anonymous reports, and keep a record of all investigations into these concerns.
      • Require employers to keep the identity of reporting employees confidential unless the employee expressly allows their identity to be shared.
  • Cal/OSHA provides guidance on the types of workplace violence hazards to be considered in an employer’s hazard inspections.
    • As proposed by Cal/OSHA, an employer’s inspection for workplace violence hazards must be documented and must include at least the following workplace violence risk factors:
      • Employees working alone or in locations isolated from other employees.
      • Areas with poor illumination or blocked visibility (e.g. blind spots) of surrounding areas.
      • Entries to places of employment where unauthorized access can occur.
      • Work locations, areas, or operations that lack effective escape routes.
      • Presence of money or valuable goods.
      • Frequent or regular contact with the public.
      • Working late at night or early morning.
      • Selling, distributing, or providing alcohol, marijuana, or pharmaceutical drugs.
  • Cal/OSHA seeks to enhance the methods for taking corrective action for workplace violence hazards.
    • As part of requiring employers to timely correct workplace violence hazards, Cal/OSHA also proposes to require the following:
      • Engineering and work practice controls (as appropriate for the workplace) must be implemented to eliminate or minimize employee exposure to workplace violence hazards that have been identified.
      • With the exception of dedicated security personnel, employees may not be required or encouraged to confront persons suspected of committing a criminal act or engaging in workplace violence.
      • Employees must be allowed to remove themselves from an unsafe condition without fear of reprisal.
      • Employers must keep records of the corrective measures both considered and implemented to address workplace violence hazards.
  • Cal/OSHA spells out the requirements for responding to, and investigating, workplace violence incidents.
    • The statute did not specify how an employer must respond to a workplace violence incident or investigate it.  Cal/OSHA proposes to require employers to do at least the following:
      • Provide immediate medical care or first aid to employees who have been injured in the incident.
      • Identify all employees involved in the incident (but do not include names and other personally identifiable information in the written investigation report).
      • For employers with more than 25 employees, make available individual trauma counseling to employees affected by the incident.
      • Conduct a post-incident debriefing as soon as possible after the incident with employees, supervisors, and security involved in the incident.
      • Identify and evaluate any workplace violence hazards that may have contributed to the incident.
      • Identify and evaluate whether appropriate corrective measures developed under the employer’s plan were effectively implemented and if any new or additional corrective measures are recommended.
      • Solicit from employees involved in the incident their opinions regarding the cause of the incident, and whether any measure would have prevented the incident.
      • For each workplace violence incident, prepare a written investigation report, which shall include all of the following:
        • Description of how the employer complied with the post-incident response and investigation requirements identified above.
        • All information the employer received or produced regarding the hazards that contributed to the incident, corrective measures, and employees’ thoughts on the cause of the incident.
        • Results and recommendations of the incident investigation.
        • Note: The current version of the proposed regulations would not allow employee names or personally identifiable information in the written investigation report.  It is unclear if this is a typographical error, and if the agency intended to refer to the violent incident log.  The agency’s original model workplace violence prevention plan document contained this same language and was later amended to refer to the violent incident log.

An advisory committee meeting will be held later this year to further discuss the proposed regulations.

Jackson Lewis will continue to track Cal/OSHA developments. If you have questions about Workplace Violence Prevention compliance or related issues, contact a Jackson Lewis attorney to discuss.

California will see another increase to its minimum wage on January 1, 2025. The minimum wage in California will increase from $16.00 per hour to $16.50 per hour on January 1, 2025. This increase applies to all employers, regardless of size. The adjustment is based on the Consumer Price Index (CPI), which saw a 3.18% increase over the past year.

Additionally, the minimum salary for full-time exempt employees will increase from $66,560 per year to $68,640 per year on January 1, 2025.

However, employers should be aware that numerous cities and industries across the state have separate minimum wages, which are typically higher than the state minimum wage. 

In addition, California voters will decide on Proposition 32, a ballot initiative to raise the state’s minimum wage, in November. If passed, the minimum wage would stair step increase to $18 per hour for all employers by 2026. The initiative also includes provisions for annual adjustments tied to the consumer price index to account for inflation. 

Jackson Lewis continues to track legal changes that affect California employers. If you have questions about minimum wage or salary compliance or related issues, contact a Jackson Lewis attorney to discuss.

The hospitality industry is important to California’s economy and provides significant employment across the state. Due to the large workforce within the hospitality sector, many cities across the state have implemented employment regulations for the industry. Here are some of the ordinances employers need to know.

Hotel Minimum Wage Ordinances

Several cities have separate minimum wage requirements for hotel workers.

CityMinimum Wage for Hotel WorkersEffective
Long Beach$23.00July 1, 2024
Los Angeles$20.32July 1, 2024
Oakland$17.94 with health benefits $23.91 without health benefitsJanuary 1, 2024
Santa Monica$20.32July 1, 2024
West Hollywood$19.61July 1, 2024

Hotel Worker Protection Ordinances

In addition to enforcing minimum wage ordinances, several cities also have protection ordinances pertaining to the safety of hotel workers. These ordinances have similar requirements, such as providing employees with a personal safety device (commonly referred to as a panic button), implementing policies about reporting threatening or violent incidents, and providing training to employees on how to handle violent incidents.

The following cities have hotel worker protection ordinances:

  • Glendale
  • Irvine
  • Long Beach
  • Los Angeles
  • Oakland
  • Sacramento
  • Santa Monica
  • West Hollywood

Right of Recall Ordinances

A handful of cities also have the right of recall ordinances, which require covered employers to offer qualified employees who were laid off available positions as they open up based on seniority and related factors. The cities of Emeryville, Long Beach, and Santa Monica all have ordinances that specifically apply to the hospitality industry.

If you have questions about local ordinances that apply to hospitality employers or related issues, contact a Jackson Lewis attorney to discuss.

California courts, like most federal courts, have historically held that a party does not waive its contractual right to compel arbitration unless the party opposing arbitration has been prejudiced by the moving party’s delay in seeking arbitration.  However, last term in Morgan v. Sundance, Inc., the U.S. Supreme Court clarified that the Federal Arbitration Act (FAA) and the federal policy favoring arbitration does not impose such a prejudice requirement.  Rather, under federal law, the party seeking to compel arbitration may waive its right to do so even if the opposing party has not been prejudiced by the delay.

The issue before the California Supreme Court in Quach v. California Commerce Club was whether California state law dictates a different result, specifically: Does the California Arbitration Act and state policy favoring arbitration nevertheless require a showing of prejudice to establish a waiver of the right to compel arbitration?   The California Supreme Court answered, “No.”        

Background

Peter Quach filed an employment-related lawsuit against his former employer, the California Commerce Club. When the California Commerce Club moved to compel arbitration based on an arbitration agreement Quach signed during his employment, he argued that the Commerce Club had waived its right to seek arbitration. Quach stressed that the California Commerce knew at the outset of the case that Quach had signed an arbitration agreement yet waited 13 months after the lawsuit was filed to move to compel arbitration and engaged in extensive discovery during that time.

The trial court initially sided with Quach, finding that the California Commerce Club waived its right to arbitration due to its delay and extensive discovery efforts (which included propounding written discovery and taking Quach’s deposition). However, the California Court of Appeal reversed the trial court’s decision, ruling that the California Commerce Club had not waived its right to arbitration. Relying on California’s multi-factor test for determining waiver of the right to compel arbitration under California law, which includes whether the party opposing arbitration has been prejudiced, the Court of Appeal emphasized that participation in litigation alone does not constitute a waiver of the right to arbitrate and found that Quach had not demonstrated sufficient prejudice from the delay to justify a waiver.

Notably, the Court of Appeal issued its decision before the U.S. Supreme Court issued its decision in Morgan.  In Morgan, the U.S. Supreme Court went on to hold that federal law does not impose any prejudice requirement when determining whether a party has waived the right to compel arbitration.  The U.S. Supreme Court held that the FAA and federal policy favoring arbitration requires that arbitration agreements be treated equally with other contracts; it does not mean that federal courts can develop arbitration-specific procedural rules that treat arbitration agreements more favorably than other contracts.  Federal courts therefore cannot graft an arbitration-favoring prejudice requirement to a finding of waiver.

The California Supreme Court Opinion

In the wake of Morgan, the California Supreme Court reversed the Court of Appeal and held that California law also does not impose a prejudice requirement when determining whether a party has waived the right to compel arbitration.  The California Supreme Court reasoned that California’s historical practice of requiring a showing of prejudice to establish a waiver of the right to compel arbitration arose out of federal case law, which the U.S. Supreme Court rejected and overturned in Morgan.  Moreover, nothing in the California Arbitration Act’s legislative history convinced the California Supreme Court that the California legislature intended to create an arbitration-specific prejudice requirement in the waiver context.

Accordingly, under California law, the test for determining whether a party has waived the right to compel arbitration is the same as determining waiver in the context of any other contract.  Specifically, to establish waiver, the party opposing arbitration must prove by clear and convincing evidence that the purported waiving party knew of the contractual right to compel arbitration and intentionally relinquished or abandoned it by acting inconsistent with the intent to arbitrate.  Critically, this is an objective test exclusively focused on the purported waiving party’s words and conduct, rather than a party’s subjective intent.

Takeaway

As a practical matter, the California Supreme Court’s decision means that employers seeking to compel arbitration need to promptly assert their right to arbitrate and avoid taking actions inconsistent with an intent to arbitrate the dispute.

If you have questions about this case or related issues, contact a Jackson Lewis attorney to discuss.

Castellanos v. State of California centered on the constitutionality of Proposition 22, the “Protect App-Based Drivers and Services Act,” which allowed app-based rideshare and delivery companies to hire drivers as independent contractors if certain conditions were met. 

In its recent decision, the California Supreme Court upheld the constitutionality of Proposition 22, affirming the Court of Appeal decision.

Background

Proposition 22, passed by California voters in November 2020, allowed app-based transportation and delivery companies to classify their drivers as independent contractors rather than employees if certain requirements were met.

The case of Castellanos v. State of California was brought forward by a group of app-based drivers arguing that Proposition 22 violates the California Constitution by limiting the legislature’s ability to enact laws that would grant app-based drivers the right to organize and access to the state’s workers’ compensation program.

In March 2023, the California Court of Appeal upheld the Proposition as mostly constitutional. The Court of Appeal held the Proposition did not intrude on the legislature’s authority. The Court of Appeal did find that the definition of amendment under the Proposition violated the separation of powers principle but could be severed from the rest of the Proposition.

California Supreme Court’s Opinion

The Court’s opinion made a lengthy review of the case law as it pertained to statutes that alleged to convey exclusive powers to the Legislature.

The Court stated that Proposition 22 did not conflict with the Constitution because nothing in the Constitution precluded the electorate from exercising its initiative power to legislate matters affecting workers’ compensation. The Court found that the Legislature was not conferred exclusive power as it pertains to workers’ compensation.

The Court declined to opine on whether the law improperly constrains the Legislature’s authority to enact future legislation.

If you have questions about the decision in this case or related issues, contact a Jackson Lewis attorney to discuss.

In June, the California Occupational Safety and Health Standards Board – unanimously adopted a new standard for Heat Illness Prevention in Indoor Places of Employment. The standard applies to all indoor work areas where the temperature equals or exceeds 82 degrees Fahrenheit.

At the time of its passage, it was unclear when the new standard would become effective, but the Standards Board had requested the Office of Administrative Law to expedite the regulation. Without any fanfare, Cal/OSHA indicated on its Frequently Asked Questions page that the standard took effect July 23, 2024.

The FAQ page covers 24 questions, from the basics of when the regulation applies, to more technical issues such as acceptable ways to measure the indoor temperature.

Some of the highlights are the FAQs are as follows:

  • Sufficient Access to Drinking Water: The FAQs specify that sufficient access means that water must be located as close as possible to areas where the workers are working and in indoor cool-down areas. It may require placing water strategically in multiple locations.
  • Emergency Response Procedures: The FAQs state that any worker must be allowed to call for emergency medical services when necessary. Moreover, employers must have specific procedures to ensure that supervisors and workers are trained to recognize the symptoms of heat illness, provide basic first aid such as cooling towels, and obtain medical services.
  • Evaluation of Training Programs: The FAQs state that Cal/OSHA evaluates training compliance by examining both content and how it is presented. To be considered effective, the training must be given in a language and at an educational level the workers understand. The FAQs also state several required topics:
    • Environmental and personal risk factors for heat illness.
    • The employer’s procedures for complying with this regulation.
    • The importance of frequent water consumption.
    • The importance and methods of acclimatization.
    • Signs and symptoms of the different types of heat illness.
    • The importance of workers immediately reporting to the employer signs and symptoms of heat illness in themselves or co-workers.
    • The employer’s procedures for responding to signs and symptoms of heat illness, such as first aid.
    • Emergency response procedures, including contacting emergency medical services with clear directions to the worksite.
    • Prior to supervising workers, the supervisor must be trained in all of the information listed above and how to monitor and respond to hot weather reports, if the work area is affected by outdoor temperatures.

If you have questions about Cal/OSHA’s Indoor Heat Standard or related issues, please contact a Jackson Lewis attorney to discuss.

The California Supreme Court issued its opinion in Ramirez v. Charter Communications, affirming in part that the arbitration agreement contained some substantive unconscionability but remanding the case to determine whether the agreement could be salvaged by severing the unconscionable provisions. In doing so, the California Supreme Court clarified its view on the enforceability of several common arbitration provisions – including those limiting discovery in arbitration – and the standard courts should apply when deciding severability.

The Case

Angelica Ramirez was hired by Charter Communications in July 2019 and signed an arbitration agreement as a condition of her employment. After her termination in May 2020, Ramirez sued Charter Communications for discrimination, harassment, and retaliation under the Fair Employment and Housing Act (FEHA).

Both the trial court and the Court of Appeal found the arbitration agreement to be procedurally and substantively unconscionable and ruled that these unconscionable elements could not be severed from the agreement. With respect to substantive unconscionability, the lower courts identified four provisions that, in their view, were unconscionable:

  1. The lack of mutuality in the covered and excluded claims provisions.
  2. A shortened limitation period for filing claims.
  3. The limited number of depositions.
  4. The potential for the employer to recover attorneys’ fees if it prevails on a motion to compel arbitration.

The California Supreme Court granted review, with a particular eye toward resolving a split in the Court of Appeal regarding the enforceability of an arbitration provision awarding attorneys’ fees to an employer that prevails on a motion to compel arbitration and ultimately held that three of the four provisions identified by the lower courts gave rise to substantive unconscionability:

  • Mutuality – The California Supreme Court agreed that the lack of mutuality in the covered and excluded claims gave rise to substantive unconscionability. The agreement excluded from its coverage claims mostly likely to be brought by the employer including claims related to intellectual property rights, noncompete agreements, theft, and disclosure of trade secrets. Meanwhile, the only excluded claims that an employee might bring were already not arbitrable as a matter of law, such as claims for workers’ compensation and unemployment insurance benefits.
  • Shortened Statute of Limitations – The California Supreme Court also agreed that the effective shortening of the statute of limitations for filing FEHA claims from three years to one year gave rise to substantive unconscionability.  The Court reiterated that while arbitration agreements may shorten the statute of limitations for filing claims, such must be “reasonable.”
  • Attorney Fee Shifting – The California Supreme Court also agreed that a provision allowing the employer to recover attorneys’ fees for prevailing on a motion to compel arbitration gave rise to substantive unconscionability.  The Court reasoned that such a provision imposed a potential expense on the employee that the employee would not have otherwise faced since employers ordinarily cannot recover attorneys’ fees in a FEHA action unless there is a finding that the action was frivolous, unreasonable, or groundless.
  • Discovery Limitations – The California Supreme Court disagreed, however, with the conclusion that the agreement’s limitation on depositions gave rise to substantive unconscionability. The Court reiterated that arbitration agreements may include limitations on discovery so long as the employee is afforded discovery “adequate” to vindicate statutory rights. Rejecting the employee’s assertion that she would need at least seven depositions to prosecute her FEHA claims yet the agreement only afforded her four, the Court stressed that unconscionability is determined at the time the agreement is entered, not in hindsight after claims are asserted. Moreover, four depositions were not unreasonable in light of the fact that the agreement could be construed as allowing the arbitrator to grant additional depositions if needed.

Having concluded that three of the four identified provisions were substantively unconscionable, the California Supreme Court remanded the matter for the lower court to determine if severance of the unconscionable provisions would be appropriate.

In doing so, the Court re-highlighted three principles that should guide a court’s severability analysis. First, the test for severability is qualitative, not quantitative: the key question is whether “the central purpose of the contract is tainted with illegality,” not whether one, two, three, or more provisions give rise to unconscionability.  Second, while an arbitration agreement can be cured by severing or limiting a provision, it cannot be cured through reformation, augmentation, or a rewriting of the agreement. Third, a court must consider whether severing the offending provisions and enforcing the balance of the agreement furthers the interests of justice.

Takeaway

California arbitration case law continues to evolve at a torrential pace.  Employers should carefully monitor developments in this area and routinely have their arbitration agreements reviewed to ensure enforceability.

If you have questions about this decision or issues related to employment arbitration agreements contact a Jackson Lewis attorney to discuss.

On July 15, 2024, Governor Newsom signed Assembly Bill (AB) 1870, which mandates that employers include information in their notices about an injured employee’s right to consult with a licensed attorney for advice about workers’ compensation law and that attorneys’ fees may be paid as part of the injured worker’s award.   

In California, employers have specific obligations to ensure their employees are well-informed about their rights and benefits under the workers’ compensation system. Employers must post a workers’ compensation informational poster in a conspicuous location frequented by employees.

Employers are required to provide new employees with a workers’ compensation pamphlet that outlines their rights and benefits. This must be done either at the time of hiring or by the end of the employee’s first pay period.

If an employee is injured, the employer must provide a Workers’ Compensation Claim Form (DWC 1) and a Notice of Potential Eligibility within one working day of learning about the injury.

AB 1870 expands these requirements to include notice of the employee’s right to consult a licensed attorney and that attorney’s fees may be paid from the injured worker’s award.

This requirement takes effect January 1, 2025.

If you have questions on AB1870 or related issues, contact a Jackson Lewis attorney to discuss.