At the start of their January 20th meeting, the Cal/OSHA Standards Board announced they would not consider the proposal to adopt the federal ETS, also known as a Horcher proposal.  This comes shortly after the U.S. Supreme Court upheld a stay on the federal Emergency Temporary Standard.

If this feels like déjà vu, you are not alone.  The Cal/OSHA Standards Board previously was considering adopting the federal ETS at its November 18, 2021 meeting.  The Board delayed that proposal when the Fifth Circuit Court of Appeal reaffirmed its initial stay of the federal ETS.

While the adoption of the federal ETS is on the back burner for now, employers still need to be familiar with the amendments to the Cal/OSHA COVID-19 Emergency Temporary Standard (Cal/OSHA ETS) which went into effect on January 14, 2022, and expires on April 14, 2022.

To assist employers in complying with the amended Cal/OSHA ETS, Cal/OSHA has updated their guidance, which is linked below:

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

The California Court of Appeal, in Cirrincione v. American Scissor Lift, Inc. recently upheld a trial court order denying class certification in a wage and hour class action. Since class certification is so often granted, this decision warrants further attention.

The underlying case involved an employee bringing multiple wage and hour claims, including allegations that the employer engaged in unlawful rounding of employee’s hours worked because it did not have any rounding policy. The trial court denied the plaintiff’s motion for class certification concluding that plaintiff had failed to establish that common questions of fact and law would predominate over individual questions, or that plaintiff’s claims were typical of those of the proposed subclass. The trial court focused on the predominance of common questions requirement.

The Court of Appeal affirmed the trial court, also focusing on predominance of common questions, citing prior case law that “one valid reason for denying certification is sufficient.”

The Court of Appeal, like the trial court, did an extensive review of the allegations related to rounding finding that the trial court had correctly observed that an employer in California is entitled to round its employees’ work time if the rounding is done in a “fair and neutral” manner that does not result, over a period of time, in a failure to properly compensate an employee for all the time they have actually worked. Moreover, the court noted, there is nothing in California case law indicating that the “absence of a written rounding policy constitutes a violation of California law where an employer has a practice of rounding its employees’ worktime.” Thus, the plaintiff’s theory of liability is not a recognized theory of legal responsibility.

This decision builds further supports that rounding procedures, so long as conducted in a fair and neutral manner that does not undercompensate employees over a period of time, are still permitted under California law. Although employers should remember that last year the California Supreme Court ruled that employers were not permitted to round time for meal breaks.

The decision also indicates how even in wage and hour matters, class action certification is not necessarily a foregone conclusion if the employer can show that individual questions predominate.

If you have questions about wage and hour compliance or need assistance in the defense of an employment class action, contact a Jackson Lewis attorney to discuss.

In September 2021, California’s Governor signed Senate Bill (SB) 62 which expands the definition of the garment manufacturing industry for purposes of wage claim enforcement to include brand guarantors.  A brand guarantor is a person who contracts for the performance of garment manufacturing.  Brand guarantors include persons who license a brand or name for garment manufacturing.

SB 62 also prohibits any employee engaged in the performance of garment manufacturing to be paid by the piece or unit, or by piece rate, except for workplaces covered by a collective bargaining agreement.  The collective bargaining agreement must expressly include: (1) employees’ wages, hours of work, and working conditions; (2) premium wage rates for all overtime hours worked and a regular hourly rate for those employees of not less than 30 percent more than the state minimum wage; and (3) stewards or monitors, and a process to resolve disputes concerning nonpayment of wages.  Employers may still offer incentive-based bonuses to employees.

SB 62 went into effect on January 1, 2022. California’s Labor Commissioner, who is charged with enforcement of the law, has published FAQs regarding SB 62.

The FAQs provide some of the following clarity to the application of SB 62.

Definition of Garment Manufacturing Operations

Per Labor Code Section 2671(c), garment manufacturing operations refer to the preparation of any garment or any article of apparel or accessories designed or intended to be worn by another person, and includes sewing, cutting, making, processing, repairing, finishing, assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, or affixing a label on a garment. Garments include but are not limited to clothing, hats, gloves, handbags, hosiery, ties, scarfs, or belts.

Piece Rate in Garment Manufacturing

As stated in the law, garment manufacturing employees must be paid an hourly rate not less than the minimum wage and cannot be paid a piece rate. However, employers may offer incentive-based bonuses.

Licensing and Registration Requirement

Every person who engages in the business of garment manufacturing must register with the Labor Commissioner.  Brand guarantors must also register if they engage in garment manufacturing per the definition above.

Record-Keeping Requirements

In addition to general recordkeeping requirements of an employer, contractors and manufacturers must keep for four years:

  • The names and addresses of all garment workers directly employed.
  • The hours worked daily by employees.
  • The daily production sheets.
  • The wage and rates paid each payroll period.
  • The contract worksheets indicating the price per unit agreed to between the contractor and manufacturer.
  • All contracts, invoices, purchase orders, work or job orders, and style or cut sheets. This documentation shall include:
    • The business names, addresses, and contact information of the contracting parties.
    • A copy of the garment license for every person engaged in garment manufacturing who is a party to the contract.
    • The ages of minor employees.
    • Any other conditions of employment.

Brand Guarantors must keep the following records for four years:

  • Contract worksheets indicating the price per unit agreed to between the brand guarantor and the contractor or manufacturer.
  • All contracts, invoices, purchase orders, work or job orders, and style or cut sheets. This documentation shall include the business names, addresses, and contact information of the contracting parties.
  • A copy of the garment license of every person engaged in garment manufacturing who is required to register with the Labor Commissioner under Section 2675, and with whom the employer has entered into a contract for the performance of garment manufacturing.

If you have questions regarding compliance with SB 62 or related issues, contact a Jackson Lewis attorney to discuss.

At the end of the year, California’s Department of Public Health (CDPH) issued updated guidance regarding Isolation and Quarantine, which applied to workplaces per the Governor’s prior Executive Order. The timing of this guidance was rather awkward, as the Cal/OSHA Standards Board had recently approved changes to the Cal/OSHA ETS set to go into effect on January 14, 2022.

Since then, Cal/OSHA has updated its FAQ pertaining to Isolation and Quarantine to reflect the CDPH guidance. Thus, while other amendments will go into effect for the ETS on January 14, Cal/OSHA’s FAQ makes clear that employers should follow CDPH’s exclusion and return-to-work requirements instead of the corresponding requirements in the ETS.  Specifically, the FAQ states that “the new isolation and quarantine recommendations from CDPH replace the exclusion periods and return to work criteria in sections 3205(c)(9) and 3205(c)(10) of the ETS….”

The following sets forth the exclusion and return to work requirements per the Cal/OSHA FAQ:

Exclusion Requirements for Employees Who Test Positive for COVID-19 (Isolation)

Requirements apply to all employees, regardless of vaccination status, previous infection, or lack of symptoms.
  • Employees who test positive for COVID-19 must be excluded from the workplace for at least 5 days.
  • Isolation can end and employees may return to the workplace after day 5 if symptoms are not present or are resolving, and a diagnostic specimen* collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and their symptoms are not present or are resolving, isolation can end and the employee may return to the workplace after day 10.
  • If an employee has a fever, isolation must continue and the employee may not return to work until the fever resolves.
  • If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
  • Employees must wear face coverings around others for a total of 10 days after the positive test, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face-covering requirements.

* Antigen test preferred.

 Employees Who Are Exposed to Someone with COVID-19 (Quarantine)

Requirements apply to employees who are:

  • Unvaccinated; OR
  • Vaccinated and booster-eligible+ but have not yet received their booster dose.++

+ Refer to CDC COVID-19 Booster Shots to determine who is booster eligible.
  • Employees must be excluded from the workplace for at least 5 days after their last close contact with a person who has COVID-19.
  • Exposed employees must test on day 5.
  • The quarantine can end and exposed employees may return to the workplace after day 5 if symptoms are not present and a diagnostic specimen* collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and does not have symptoms, quarantine can end and the employee may return to the workplace after day 10.
  • Employees must wear face coverings around others for a total of 10 days after exposure, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face-covering requirements.
  • If an exposed employee tests positive for COVID-19, they must follow the isolation requirements above in Table 1.
  • If an exposed employee develops symptoms, they must be excluded pending the results of a test.
  • Employees are strongly encouraged to get vaccinated or boosted.

++Employers are not required to exclude asymptomatic employees in this category if:

  • A negative diagnostic test* is obtained within 3-5 days after last exposure to a case;
  • Employee wears a face-covering around others for a total of 10 days (please refer to the section in this FAQ on face coverings for additional face-covering requirements); and
  • Employee continues to have no symptoms.

Employees Who Are Exposed to Someone with COVID-19 (No Quarantine Required)

Requirements apply to employees who are:

  • Boosted; OR
  • Vaccinated, but not yet booster-eligible.×

× Refer to CDC COVID-19 Booster Shots to determine who is booster eligible.

 Employees do not need to quarantine if they:

  • Test on day 5 with a negative result.
  • Wear face coverings around others for 10 days after exposure, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face-covering requirements.
  • If employees test positive, they must follow isolation recommendations above.
  • If employees develop symptoms, they must be excluded pending the results of a test.

 

This guidance is subject to change and may evolve over the coming weeks. Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

The California Employment Development Department (EDD) has released the Voluntary Plan Employee Contribution and Benefit Rates for 2022.

Employers with employees located in California are generally required to withhold and send state disability contributions to the EDD. The 2022 rates are as follows:

“Employee Contribution Rate” 1.10%
“Taxable Wage Ceiling” (per employee per year) $145,600.00
“Maximum Contribution” (per employee per year) $1,601.60
“Maximum Weekly Benefit Amount” (WBA) $1,540.00
“Maximum Benefit Amount” (WBA X 52 weeks) $80,080.00
“Assessment Rate” (this figure is the product obtained by multiplying the worker contribution rate by 14% or 1.25 X 14%) 0.168%

The Employee Contribution Rate is the percentage withheld from the wages of employees who are covered by Disability Insurance (DI) and Paid Family Leave (PFL). For 2022, the EDD decreased the Employee Contribution Rate by 0.10% from the 2021 rate of 1.20%. The Taxable Wage Ceiling is the maximum yearly wage, per employee, that is subject to DI and PFL withholding. The Maximum Contribution is the maximum amount withheld from the yearly wages of an employee who is covered by state disability and who annually earns an amount equal to or exceeding the Taxable Wage Ceiling.

The change in contribution rates and the Maximum Weekly Benefit Amount are relevant to employers who must comply with San Francisco’s Paid Parental Leave Ordinance (PPLO).  The city of San Francisco requires most employers with 20 or more employees worldwide to supplement PFL benefits received by employees to bond with a new child.  During the PFL leave period, the PPLO supplemental compensation provided by an employer, added to the PFL wage replacement benefit received from the EDD, must equal 100% of the employee’s gross weekly wage, subject to a cap.  For 2022, the PPLO cap will be $2,567 per week.

The Assessment Rate is relevant to employers that maintain a state-approved voluntary plan (VP), which is a disability insurance plan that an employer can offer to its California employees as a legal alternative to mandatory DI and PFL.  The Assessment Rate is the amount that an employer pays to the EDD as an administrative expense for maintaining a voluntary plan.

The EDD also released an updated Overview of California’s Paid Family Leave Program.

Jackson Lewis continually monitors governmental changes affecting California employers. If you have questions regarding Paid Family Leave, the Paid Parental Leave Ordinance or other wage replacement requirements contact a Jackson Lewis attorney to discuss.

In mid-December, as COVID-19 cases began to rise, the California Department of Public Health (CDPH) reinstituted indoor masking requirements and Cal/OSHA confirmed that requirements applied in the workplace. When issued, the mandate was only supposed to remain in effect until January 15, 2022.

However, with COVID-19 cases still on an uptick, the CDPH has extended the requirement for universal masking indoors through February 15, 2022.  While not mandated under the state order, the guidance does encourage the use of surgical masks or higher-level respirators such as N95s.

Los Angeles County Department of Public Health has gone a step further than the state guidance and issued an updated order that requires employers to provide employees who work indoors and in close contact with other workers or the public, with medical-grade masks, surgical masks, or higher-level respirator such as N95, at all times while indoors or at the worksite, no later than January 17, 2022.

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

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

On December 16, 2021, the Cal/OSHA Standards Board adopted the third version of the Cal/OSHA ETS with new exclusion and return to work requirements for COVID-19 cases and close contacts.

On December 30, 2021, the California Department of Public Health (CDPH) issued new guidance for Isolation and Quarantine for the General Public. This new guidance contradicted some of the Cal/OSHA ETS requirements for exclusion from the workplace creating confusion among employers.

The main contradiction was that under the Cal/OSHA ETS, employees who test positive and/or who have had a close contact with a COVID-19 case are required to quarantine for 10 days. Under the revised CDPH guidance such individuals may generally end quarantine or isolation after 5 days. Adding to the confusion was the reference within the CDPH guidance that “employers are subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS)…”

To resolve the confusion, Cal/OSHA has published a “fact sheet” entitled “COVID-19 ETS What Employers Need to Know About the December 16 Standards.”  In this sheet, Cal/OSHA states: “The period of time before an employee can return to work after “close contact” or COVID-19 illness has been revised to be consistent with current CDPH guidelines. These time frames will automatically update if CDPH updates their guidelines pursuant to the Governor’s executive order.”

Cal/OSHA appears to be referring to an Executive Order issued by Governor Newsom in 2020, that states that when the Cal/OSHA ETS exclusion period exceeds the CDPH or local quarantine or isolation period, the CDPH or local order applies. That same Order also requires that Cal/OSHA “promptly provide public notice of the change, including through posting a notice on its web page regarding the ETS,” which appears to be satisfied by the fact sheet mentioned above.

As such, quarantine and isolation periods that employers should now follow under CDPH guidance are as follows:

An individual who tests positive for COVID-19

· Individuals should stay home for at least 5 days.

· Isolation can end after day 5 if symptoms are not present or are resolving and a diagnostic specimen collected on day 5 or later tests negative.

· If unable to test or choosing not to test, and symptoms are not present or are resolving, isolation can end after day 10.

· If fever is present, isolation should be continued until fever resolves.

· If symptoms, other than fever, are not resolving continue to isolate until symptoms are resolving or until after day 10.

· Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings.
Unvaccinated individuals and vaccinated individuals who are eligible for a booster but have not received the booster who are exposed to a COVID-19 Positive Individual

· Individuals should stay home for at least 5 days, after their last contact with a person who has COVID-19.

· Individuals should test on day 5.

· Quarantine can end after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative.

· If unable to test or choosing not to test, and symptoms are not present, quarantine can end after day 10.

· Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings.

· If testing positive, follow isolation recommendations for positive individuals.

· If symptoms develop, the individual should test and stay home.
Vaccinated individuals who have received booster or are not booster eligible who are exposed to a COVID-19 Positive Individual

· Individuals do not need to stay home.

· Individuals should test on day 5.

· Wear a well-fitting mask around others for 10 days, especially in indoor settings

· If testing positive, follow isolation recommendations above.

· If symptoms develop, test and stay home.

Unfortunately, CDPH guidance may be revised again to align with the new Centers for Disease Control (CDC) guidance updated on January 4, 2022. As such, in the coming month, employers may need to be flexible in updating policies and procedures to align with the latest requirements as the situation with COVID-19 continues to be fluid.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

In September 2021, Governor Newsom signed Assembly Bill (AB) 701, which regulates the use of quotas at warehouse distribution centers in California.

AB 701 requires employers with large warehouse distribution centers to disclose quotas and pace-of-work standards to each employee upon hire or within 30 days of the law going into effect.

AB 701 went into effect January 1, 2022, and employers must provide notice to covered employees of the quota requirements by January 31, 2022.

California’s Labor Commissioner who is charged with enforcement of AB 701 has published FAQs regarding AB 701.

The following are some of the highlights from the FAQs.

Warehouses Covered

AB 701 covers employers who directly or indirectly control 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in California. Employees provided by outside staffing agencies may also be included where the employer controls the terms and conditions of employment for those employees.

Definition of a Quota

A “quota” is defined as “a work standard under which an employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”

This would include processing a required number of packages in a specific amount of time, such as 200 packages per hour. It would also include having to clear all packages from a conveyor belt based on belt speed, clearing all incoming or outgoing inventory within a single shift, or filling a certain number of containers in a specific time or in one work shift.

Information to Provide to Employees

Covered employers must provide to each employee a written description of each quota the employee works under. This includes the number of tasks to be performed or materials that must be produced or handled within a time period, and any potential adverse employment action that could result from failing to meet the quota.

Limitations on Use of Quotas

An employee cannot be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities (including reasonable travel time to and from bathrooms), or compliance with occupational health and safety standards.

A quota that prevents compliance with meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws in the Labor Code or division standards is unlawful and may not be the basis for an adverse employment action. A quota may be illegal if it directly or indirectly precludes employees from exercising these statutory rights.

The Labor Commissioner provides this example: a quota that requires that employees always are engaged in productive activity during work hours would be unlawful as it would directly prevent employees from taking meal and rest periods and prevent them from using bathroom facilities during work hours or exercising their rights regarding health and safety standards.

Employers covered by AB 701 should continue to check the Labor Commissioner’s FAQs as updates may occur as enforcement of the bill begins in the coming months.

If you need assistance with complying with AB 701 or related issues, contact a Jackson Lewis attorney to discuss.

After many delays, employers nationwide just filed their 2020 EEO-1 reports in November.  But it’s already time for California employers to begin preparing their annual pay data submission to the Department of Fair Employment and Housing (DFEH).

The Background

In 2020, California Governor Gavin Newsom signed into law Senate Bill (SB) 973, which creates massive pay reporting requirements for California employers that also file EEO-1 Reports. Under SB 973 private employers with 100 or more employees and at least one employee in California must report certain pay and related data to DFEH.

The DFEH has launched an information page that provides clarity on certain obligations and issued additional guidance on the pay data report’s contents and filing mechanics—largely confirming certain assumptions and clarifying other requirements. The page also provides templates for submitting information and a link to the Pay Reporting Portal.

The Agency regularly updates this information page, so check back frequently to stay current.

The Deadline

The deadline for filing a pay data report with DFEH is annually on March 31.

While March may seem like a long time from now, the information required for the reports is comprehensive and may involve information from many employee systems, such as HRIS, payroll, and timekeeping systems.  Employers should consider starting well in advance of the deadline.

The Pay Data Report

As our free webinar from last spring explains, employers must report on their workforce by choosing a single pay period, or “Snapshot Period,” during Q4 of each “Reporting Year”—here, 2021.  That’s the “who.”

For the “what,” the submission must provide the number of employees by race, ethnicity, and sex in each of the 10 EEO-1 Job Categories (following the EEO-1 Instruction Booklet) and within each of the “pay bands” used by the U.S. Bureau of Labor Statistics Occupational Employment Statistics classifications.

It must also include:

  1. Total number of hours worked by each employee in each pay band;
  2. “Reporting Year,” “Snapshot Period,” “Report Type (establishment or consolidated),” and the total number of reports submitted by the employer;
  3. Employer’s name, address, headquarters’ address (if different), Employer Identification Number, North American Industry Classification System (NAICS) Code, and Dun and Bradstreet Number;
  4. Number of employees inside and outside of California;
  5. Number of establishments inside and outside of California;
  6. Whether the employer is a state contractor;
  7. Name and address of the employer’s parent company or companies, if applicable;
  8. For a multiple-establishment employer’s establishment reports, the establishment’s name, address, number of employees, and major activity;
  9. For a multiple-establishment employer’s consolidated report, the names and addresses of the establishments covered by the consolidated report;
  10. Any clarifying remarks;
  11. Certification that the information is accurate; and
  12. Information on a company contact for the submission.

Jackson Lewis attorneys will continue to monitor California’s pay data reporting and other pay equity issues. If you have questions about compliance with SB 973 or related pay data reporting contact a Jackson Lewis attorney to discuss.

As 2021 draws to a close, here is a review of our articles about changes to California employment law that will continue to affect employers into 2022.

Legislative Changes

Statewide Right of Recall Bill Signed by Governor Newsom

New Legislation Signed Regarding Wage Theft

Expansion for CFRA Leave to Include Parents-in-Law and Modifications to DFEH Mediation Program

Changes to Wage Law for the Garment Manufacturing Industry

California Expands Cal/OSHA’s Citation Authority

California Expands PPE Stockpile and Employee Training Requirements to Address Wildfire Smoke

California Extends AB 5 Exemption for Newspaper Distributors and Carriers

California Eliminates Subminimum Wage Certificate Program

Limited Exemption to PAGA for Some Janitorial Employees

New Bill Allows Required Notices and Postings to be Emailed to Employees

New Legislation Makes Procedural Changes to DFEH Enforcement and Expands Employer Record Retention Requirements

California Passes Legislation Regarding Job Performance Quotas for Large Warehouse Facilities

California Fair Pay to Play Act To Become Effective September 1, 2021

California Passes Legislation Requiring Continued Health Benefits for Striking Public Employees

California Expands Privacy and Security Requirements for Genetic Data

California Further Limits NDAs and Settlement Agreement Terms in Employment Cases

New Legislation Prevents Food Delivery Platforms From Retaining Amounts Designated as Tips or Gratuity

California’s COVID-19 Employer Reporting Requirements Revised

California Legislation Signed to Extend Exemptions from AB 5 for Certain Industries

Case Law Changes

California Supreme Court Answers the Ninth Circuit: Dynamex Applies Retroactively

California Supreme Court Holds Statute of Limitations on Failure to Promote Claims Runs When Employee Knows or Reasonably Should Know They Were Denied Promotion

California’s Supreme Court Sets Meal and Rest Period Premium Pay At An Employee’s Regular Rate Of Pay, Not The Base Hourly Rate Alone

California’s High Court Rejects an Unwieldly Prevailing Wage Coverage Standard

Administrative Changes

Cal/OSHA’s ETS is Amended and Extended to April 2022

Jackson Lewis will continue to track changes that affect California employers in 2022. If you have questions about California workplace law compliance contact a Jackson Lewis attorney to discuss.