On September 11, 2023, the coalition of California businesses announced its agreement with labor unions to withdraw their referendum challenging Assembly Bill (AB) 257, which created the FAST Recovery Act, from next year’s ballot.

Last year, Governor Newsom signed AB 257. The Act established a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials from the Department of Industrial Relations and the Governor’s Office of Business and Economic Development.

Almost immediately, a referendum effort was launched which would give California voters the opportunity to reject the measure.

While AB 257 was paused pending the referendum, the California legislature proceeded with reviving the Industrial Welfare Commission, seen as the state’s attempt to push through similar efforts to increase regulations and expansion of union involvement in industries such as the fast-food industry. In addition, another bill, Assembly Bill (AB)1228, was introduced. That bill would have imposed liability on franchisors for violations of the Fair Employment and Housing Act, the Labor Code, Cal/OSHA, and other workplace laws as well as exposing franchisors to liability under the Private Attorneys General Act.

In exchange for withdrawing the referendum on AB 257, AB 1228 was significantly revised. The amended bill does not include franchisor liability but instead resurrects the Fast Food Council that was originally included in AB 257.

As with AB 257, the amended AB 1228 would give the Fast Food Council the authority to set minimum employment standards for fast food restaurants, including wages, hours, health and safety, and other working conditions. It would set an initial minimum wage of $20 per hour effective April 1, 2024, and permit the Council to establish further increases based on increases to the Consumer Price Index. The bill as amended would also permit local jurisdictions to establish more protective labor standards but would preclude them from setting wages different from those set by the Council. The Council’s authority would sunset on January 1, 2029.

AB 1228 has not made its way out of the legislature and has only until midnight on September 14 to be sent to the Governor. However, in light of the agreement between the two sides, it is expected the bill will make its way to Governor Newsom and be signed.

If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

On September 1, 2023, Governor Newsom signed Senate Bill (SB) 699, which buttresses current state law that voids contracts that restrain an employee from engaging in a lawful profession, trade, or business of any kind.  

California’s Business and Professions Code section 16600 states, “[E]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” This section has long been interpreted by California courts as prohibiting post-employment noncompetition, non-solicitation of customers, and non-solicitation of employee agreements, with few exceptions.  The chapter exempts such restrictive covenants in the sale or dissolution of corporations, partnerships, and limited liability corporations.

SB 699 both reiterates existing law and goes a few steps further. Under SB 699, any contract that is void under section 16600 is unenforceable, regardless of where and when the contract was signed. In addition, an employer or former employer may not attempt to enforce a contract that restricts an employee’s ability to engage in a lawful profession, trade, or business, even if the contract was signed outside of California and the employment was maintained outside of California.  

Moreover, SB 699 prohibits an employer from entering into a contract with an employee or prospective employee which includes noncompete clauses and other restrictive covenants that are void under section 16600. Employers who violate SB 699 could be liable for civil violations. 

An important change to California law is that SB 699 adds explicit enforcement rights for employees regarding restrictive contracts.

This law takes effect on January 1, 2024, to the extent that new enforcement rights are created. 

Another bill pertaining to restrictive covenants, Assembly Bill 747 that had been working its way through the California legislature has been ordered to the inactive file for this session.

If you have questions about SB 699 or related issues, contact a Jackson Lewis attorney to discuss.

As school resumes and temperatures fall, employees may be calling out sick. Here is a refresher on the basics of California’s paid sick leave law known as the Healthy Workplace Healthy Families Act, Labor Code 245 et seq.

Covered Employers

The state’s paid sick leave requirement applies to all employers and includes public employees.

Covered Employees

Employees who have worked at least 30 days within a year in California qualify to accrue paid sick leave.  Accrual of paid sick leave starts on the first day of employment. Employers, however, may require an employee to complete a 90-day employment period before using paid sick leave.

Reasons for Leave

Covered employees may take paid sick leave for the following reasons:

  1. For diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member (meaning a child, which includes biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis, all regardless of age or dependency status); spouse; registered domestic partner; parent (including biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child); grandparent; grandchild; sibling; or designated person; or
  •  For an employee who is a victim of domestic violence, sexual assault, or stalking to: (a) obtain or attempt to obtain a temporary restraining order, restraining order, or other injunctive relief; (b) help ensure the health, safety, or welfare of the victim or the victim’s child; (c) seek medical attention for injuries caused by domestic violence, sexual assault, or stalking; (d) obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking; (e) obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking; or (f) participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.

Amount of Leave

Under the state law, employers may provide either all paid sick leave at once also referred to as the front-loaded method, or by accrual methods. Depending on the method, the amount must be provided as follows:

  • Front Loaded Method: 24 hours or 3 days at the time of hire and the beginning of each year.       
  • Accrual Methods: 1 hour for every 30 hours worked or accrual on a regular basis providing not less than 24 hours or 3 days by the 120th calendar day of employment or each calendar year, or in each 12-month period.

Exempt employees are deemed to work 40 hours per workweek unless the employee’s normal workweek is less than 40 hours.

Local Paid Sick Leave Ordinances

Several cities have local paid sick leave ordinances with additional requirements beyond the state mandate. Employers should check if cities where they operate have paid sick leave requirements.

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

Under the Labor Code, each year the State of California must determine and certify whether an adjustment for inflation is applied to the state’s minimum wage. In 2022, when the rate of inflation exceeded 7 percent, the state minimum wage was increased to $15.50. This year, California has decided that the minimum wage increase will include an inflation adjustment of 3.5 percent for all employees. This means effective January 1, 2024, California’s minimum wage will increase to $16.00 per hour for all employers, regardless of size.

This minimum wage increase will affect not only hourly employees but will impact some exempt employees in California who are required to receive a salary of at least twice the state minimum wage.

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

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.

On July 24, 2023, the California Office of Administrative Law approved the California Civil Rights Council’s modifications to regulations pertaining to California’s Fair Chance Act. Under the Fair Chance Act, employers with five or more employees are prohibited from asking an applicant about conviction history before making a job offer and setting forth other requirements pertaining to an applicant’s criminal history.

The modifications take effect on October 1, 2023.

The following are a few of the modifications that employers should take note of.

Notice of Preliminary Decision and Opportunity for Applicant Response

The modification clarifies that if an employer makes a preliminary decision after an “initial” individualized assessment that the applicant’s conviction history disqualifies the applicant, the employer shall notify the applicant in writing. The notice must include all of the following:

  1. Notice of disqualifying conviction that is the basis for the preliminary decision.
  2. A copy of the conviction history report relied upon.
  3. Notice of the applicant’s right to respond to the notice before the preliminary decision becomes final.
  4. Explanation of the type of evidence an applicant can submit to challenge the conviction history or as evidence of rehabilitation or mitigation.
  5. Notice of the deadline for the applicant to respond.

Individualized Assessment

The modified regulations clarify that an individualized assessment must be a “reasoned, evidence-based determination,” and provide detail on what may be taken into consideration in assessing the three factors to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.

Evidence of Rehabilitation or Mitigating Circumstances

The modified regulations also clarify that evidence of rehabilitation or mitigating circumstances is optional and may only be voluntarily provided by the applicant or by another party at the applicant’s request.  The regulations state-specific actions that an employer is prohibited from taking: refusing to accept additional evidence voluntarily provided by an applicant, requiring an applicant to submit any additional evidence or a specific type of documentary evidence, disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of evidence, requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking or comparable statuses, and/or requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.


The modification provides examples of the factors the employer may consider when making a final decision regarding whether to rescind a condition offer of employment.

The modified regulations provide more detail on the types of evidence an employer may consider including:

  1. When the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
  2. The applicant’s employment history since the conviction or completion of the sentence;
  3. The applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
  4. The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors.

Labor Contractors, Union Halls, and Client Employers

The modified regulations add labor contractors, union hiring halls, and client employers as types of employers governed by the Fair Chance Act and the regulations and specify that they must comply with the requirements for workers who are admitted to a pool or availability list.

IRS Work Opportunity Tax Credit

The modified regulations specify that an employer may require applicants to complete the IRS form 8850 or equivalent before a conditional offer is made, so long as the information gathered is used solely to apply for the credit.

If you have questions about the changes to the regulations pertaining to the Fair Chance Act or related issues, contact a Jackson Lewis attorney to discuss.

While students are enjoying the dog days of summer, California employers may want to review leaves available to parents and caregivers before the school year begins.

Just as there are considerations when employing minors, there are also leave entitlements employers should be aware of when employing parents and caregivers.

Under the Labor Code, “Parent” is defined as “a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.”

Time Off for School Activities

Under Labor Code section 230.8, employers with 25 or more employees must permit up to 40 hours of unpaid time off to parents for the following reasons:

  • To find, enroll, or reenroll their child in school or with a licensed childcare provider
  • To participate in activities of the school or childcare provider
  • To address a childcare provider or school emergency

Time off other than to address an emergency is limited to 8 hours per month and reasonable notice must be provided to the employer.

The employee, if requested by the employer, shall provide documentation from the school or licensed childcare provider as proof that he or she engaged in child-related activities on a specific date and at a particular time.

Time Off for Suspension or Expulsion Meetings

Under Labor Code section 230.7, all employers are prohibited 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 meeting pursuant to Education Code section 48900.1.

In addition, employees may be entitled to leave to care for a child’s illness or injury. If you have questions regarding school-related leave or related issues, contact a Jackson Lewis attorney to discuss.

On July 20, 2023, the Cal/OSHA Standards Board approved promulgating an Emergency Temporary Standard for Respirable Crystalline Silica (Silica). The Silica ETS will require the fabricated stone industry to protect its employees from silica exposure. According to Cal/OSHA, engineered stone, which is cut to create countertops in home construction, is much cheaper than natural alternatives, but contains more than 90% silica.

In early 2023, the Cal/OSHA Standards Board received a petition from the Western Occupational and Environment Medical Association (WOEMA) for an amendment to the General Safety Orders pertaining to Silica. The request was for an amendment via Emergency Temporary Standard (ETS) to address an increase in the number of reported cases of advanced silicosis among workers exposed to silica in engineered fabrication shops.  

In WOEMA’s petition, they requested the ETS with the following elements:

  • Applies to workplaces using engineered stone with a high silica content or greater than 50 percent.
  • Regulated areas to limit employee access to areas where artificial stone is fabricated.
  • Prohibition on fabrication without the use of water to suppress dust.
  • Requirement for airline respirators or power air-purifying respirators (PAPRs) for all work involving fabrication of artificial stone.
  • Annual documentation indicating that the employer has sent a letter to the Cal/OSHA Occupational Carcinogen Control Unit reporting the use of RCS, as required by section 5203 “Carcinogen Report of Use Requirements.”
  • Strengthened penalty structure so that violations of the ETS result in citations classified as serious.
  • Updated guidance prepared by Cal/OSHA with information on computerized tomography (CT) exams and other diagnostic studies.
  • Reporting requirement for physicians or other licensed health care professionals (PLHCP) to inform Cal/OSHA of any silicosis diagnoses of moderate severity or worse.

In deciding to move forward with a Silica ETS, the Cal/OSHA Standards Board is essentially disregarding its own staff evaluation, which concluded that many of the proposed provisions are already contained in the existing Standard. The staff recommended denial of adopting an ETS but instead request Cal/OSHA consider reviewing and updating the Standard as needed.

Instead, the Board adopted the proposed petition. It is anticipated that the Silica ETS will be drafted over the next several months.

If you have questions on the ETS for Silica Exposure or related issues, contact a Jackson Lewis attorney to discuss.

On July 1, 2023, the City of Los Angeles Freelance Worker Protections Ordinance went into effect. The ordinance sets forth certain requirements for hiring entities retaining freelance workers operating within the City of Los Angeles.

Definition of Freelance Worker

Under the ordinance, a freelance worker is defined as an individual or entity composed of no more than one person that is hired by a “Hiring Entity” as a bona fide independent contractor to provide services in exchange for compensation. Under the definition, a freelance worker is an individual or entity with no employees.  

Definition of Hiring Entity

Under the ordinance, a hiring entity is defined as being regularly engaged in a business or commercial activity but does not include entities that hire app-based drivers to provide prearranged transportation or delivery services.

Covered Work

The protections under the ordinance apply to work performed by a freelance worker after July 1, 2023, in the City of Los Angeles and valued at $600 or more either by an individual job or cumulative jobs in a calendar year.

Requirements of the Ordinance and Protections Provided

  • Hiring entities are required to provide the freelance workers with a written contract for all agreements valued at $600 or more. In addition to information regarding the hiring entity and the freelance worker, the contracts must include both (i) an itemization of all services to be provided by the freelance worker, the value of the services to be provided pursuant to the contract, and the rate and method of compensation; and (ii) the date by which the hiring entity must pay for the contracted compensation or the manner by which such date will be determined.
  • The hiring entity is required to provide full payment by the date specified in the contract, or no later than 30 days after work is completed if no date is specified in the contract.
  • Both the hiring entity and freelance worker must retain records for 4 years.
  • The hiring entity may not retaliate against any freelance worker for exercising their rights under the ordinance.
  • The ordinance provides for additional damages and remedies available to the freelance worker where the hiring entity fails to respond to a freelance worker’s request for a written contract prior to commencing work, fails to pay amounts agreed to under the contract, or violates any other provisions of the ordinance.

If you have questions about the City of Los Angeles Freelance Worker Protections Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

The California Supreme Court in Kuciemba v. Victory Woodworks, Inc was asked to rule on two questions by the 9th Circuit:

  1. If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, causing injury, does the California Workers’ Compensation Act (WCA) bar the spouse’s negligence claim against the employer?
  2. Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?


The plaintiffs in this matter are a husband and wife who filed a lawsuit against the husband’s employer. The husband worked for the employer at a construction site in San Francisco in 2020, where he was required to work in close contact with other workers who may have had COVID-19 in violation of the County’s health order. The husband’s employer allegedly failed to take COVID-19 precautions mandated in the County’s health order. The plaintiffs alleged because the employer failed to take precautions to prevent the spread of COVID-19, the husband became infected with COVID-19. The husband then transmitted COVID-19 to his wife, who became severely ill and was hospitalized. Plaintiffs filed suit in federal court against the husband’s employer claiming negligence, negligence per se, and premise liability. The district court granted the employer’s motion to dismiss.

Plaintiffs appealed to the U.S. Court of Appeals for the 9th Circuit and the 9th Circuit requested the California Supreme Court rule on the two issues listed above.

Workers’ Compensation Act

As to the first question, the California Supreme Court ruled the WCA does not bar a spouse’s negligence claim.

With limited exception, the WCA is intended to be the sole and exclusive remedy of the employee or their dependents to collect compensation against the employer. Similarly, workers’ compensation benefits provide the exclusive remedy for third-party claims if asserted claims are “collateral to or derivative of” the employee’s workplace injury.

The Court distinguished between claims that were “collateral to or derivative of” the employee’s workplace injury, and claims that are merely factually related to the employee’s injury.

Specifically, the Court determined the WCA does not preempt claims where the injuries of the plaintiff did not require proof of the employee’s injuries as a legal factor for the plaintiff’s cause of action, even if the two injuries are factually related. Even if the plaintiff’s injury would not have been caused “but for” the employee’s injury, the causal link is insufficient to render the claims derivative.

Therefore, the WCA does not apply because, while the wife’s negligence claim against the employer was factually related to or caused by his injury, her claim was not legally dependent on her husband’s workplace injury.

Duty of Employer to Prevent Exposure

The Court ruled employers do not have a duty of care to prevent “take-home exposure” of COVID-19 to an employee’s household members.

California Civil Code section 1714 generally imposes an expansive duty of care, which the Court found could impose a duty of care upon employers. The Court determined the wife’s injury was reasonably foreseeable in that permitting the workplace spread of COVID-19 could cause an employee’s household members to contract the illness. The Court also determined the “moral blame” likely tilted toward finding a duty of care, as the employer could have profited off its failure to abide by the health order to prevent the spread of COVID-19.

However, the Court recognized imposing a duty of care upon employers to employees’ household members would impose a “significant and unpredictable burden” because it would be “impossible to eliminate the risk of infection, even with perfect implementation of best practices,” which could result in untold increases in litigation against employers with dire financial consequences. Given the high burden, this would impose on California businesses, the court systems in increased litigation, and burdens on the community, the Court favored creating an exception to the general rule of Civil Code section 1714. Therefore, the employer owed the employee’s wife no duty of care.

Without a duty of care, a negligence claim necessarily will fail against an employer.

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

On July 10, 2023, Governor Newsom signed Assembly Bill (AB) 102 which will amend the Budget Act of 2023. The bill will take effect immediately as a Budget Bill.

While appropriations bills such as AB 102 are generally not of much interest to private employers, AB 102 is noteworthy because it includes a $3,000,000 appropriation to the Industrial Welfare Commission (IWC).   

The IWC is the administrative entity that was established to regulate wages, hours, and working conditions in California. The IWC developed the wage orders, which set forth many requirements that employers must comply with in addition to the California Labor Code.  The IWC was previously defunded by the California Legislature effective July 1, 2004, but its 18 wage orders remain in effect.  As a result of the defunding of the IWC, the wage orders have not been updated since 2001.

Under the appropriations outlined in AB 102, the IWC will convene industry-specific wage boards and adopt orders specific to wages, hours, and working conditions in such industries, provided that any such orders shall not include any standards that are less protective than existing state law.

The IWC will be mandated to prioritize for consideration industries in which more than 10 percent of workers are at or below the federal poverty level.

Under AB 102, the IWC shall convene by January 1, 2024, with any final recommendations for wages, hours, and working conditions in new wage orders adopted by October 31, 2024.

The renewed funding of the IWC is seen by industry groups as the state’s attempt to push through similar efforts to increase regulations for industries such as the fast-food industry.  Last year, the state passed the FAST Recovery Act, which was intended to form a council that would develop regulations for fast food workers’ working conditions. However, the law was blocked pending a voter referendum on the statute.  

If you have questions about the refunding of the IWC or related issues, contact a Jackson Lewis attorney to discuss.