California’s pro-employee employment regulations are often compared to those of the European Union. Recently, the California legislature borrowed another European idea for a proposed bill, “the right to disconnect from work.”

Assembly Bill (AB) 2751 would mandate that employers establish policies that allow employees to disconnect from employment communications during non-working hours.

Under the proposed law, employers would not be permitted to contact the employees outside of working hours except in the event of an “emergency” or “scheduling.”

Under the bill, an emergency is defined as “an unforeseen situation that threatens an employee, customer, or the public; disrupts or shuts down operations; or causes physical or environmental damage.”

Employees could file complaints with the California Labor Commissioner for alleged violations, and a pattern of violations would be punishable as a misdemeanor and a fine of not less than $100.00.

In its current form, the bill does not apply to employees covered by a valid collective bargaining agreement.

AB 2751 is still in the committee stages of the legislative process with this year’s legislative session ending on August 31, 2024.

Jackson Lewis will continue to track this and other legislation that affects employers in the Golden State. If you have questions about AB 2751 or related issues, contact a Jackson Lewis attorney to discuss.

Last year, California’s Governor signed Senate Bill (SB) 553, which requires most employers to establish, implement, and maintain an effective Workplace Violence Prevention Plan (WVPP). The law is enforceable on July 1, 2024. Cal/OSHA is responsible for enforcing the requirements of SB 553, now codified in California Labor Code Section 6401.9.

Recently, Cal/OSHA published a Frequently Asked Questions (FAQ) page to assist with compliance.

The FAQ reviews the following:

  • Definitions under the statute
  • Employer applicability
  • Requirements for the WVPP
  • Violent Incident Logs
  • Training
  • Recordkeeping
  • Effective date

While many questions remain, employers should take note of Cal/OSHA’s position on some issues in the FAQ:

  1. Employers need to provide initial training under their WVPP by July 1, 2024, when enforcement commences.
  2. Employers must ensure their written WVPP “is specific to the hazards and corrective measures for each work area and operation” and not a top-down “corporate plan.”
  3. Animal attacks and other “acts of violence or threat of violence” are included in the definition of workplace violence under the legislation.

If you have questions about compliance with SB 553 or related issues, contact a Jackson Lewis attorney to discuss.

In its recent opinion in Huerta v. CSI Electrical Contractors, the California Supreme Court addressed three inquiries posed by the 9th Circuit. These inquiries specifically relate to the definition of “hours worked” within the context of the California wage order applicable to the construction, drilling, logging, and mining industries, as well as the California labor code.

In the underlying action, employees were working on a solar power facility located on privately owned land that had limited access on and off the highway.  As a result, the employees’ entry was sometimes delayed, with having to go through gates, security checkpoint (s) (which moved during the scope of the project) and having to drive slowly to protect endangered species in the area.

The first question from the 9th Circuit was: Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, have a security guard peer into the vehicle, and then exit the security gate compensable as “hours worked”?

To this question, the California Supreme Court held that time spent on an employer’s premises awaiting and undergoing an employer-mandated exit procedure was compensable as “hours worked.”

The second question: Is time spent on the employer’s premises in a personal vehicle, driving between the security gate and the employee parking lots subject to certain rules from the employer “hours worked”?

The California Supreme Court stated to the second question that travel time from the security gate to employee parking lots is compensable if the security gate was the first location where the employee was required for an employment-related reason. However, this travel time is not counted as work hours because an employer’s standard rules during employees’ drive to the worksite in a personal vehicle do not establish sufficient employer control.

The Court stated in its opinion, “We decline to reduce the control test to a categorical rule of compensability for any time that an employee spends traveling on work premises. Rules designed to ensure safe, lawful, and orderly conduct while traveling on an employer’s premises, such as the general Site rules and the ‘rules of the road’ at issue here, do not impose a level of control that renders the time compensable. … Because an employee’s drive on the access road is not a form of exertion that a manager would recognize as work on the Site, the drive time is not compensable under the suffer or permit clause.”

The third question: Is time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, hours worked when it is designated as an unpaid meal period under a qualifying collective bargaining agreement (CBA)?

For the final question, the California Supreme Court held that when an employee is covered by a CBA that complies with Labor Code section 512 and the wage orders and provides the employee with an unpaid meal period that time is nonetheless compensable as “hours worked” if the employer prohibits the employees from leaving the employer’s premises or designated area during the meal period and if the prohibition prevents the employee from engaging in otherwise feasible personal activities.  

However, the Court stated “[w]e interpret Wage Order No. 16, section 10(D) and (E) to permit employees to bargain for a voluntary paid on-duty meal period. In other words, an exemption from section 10(D) permits workers to negotiate a contract for on-duty meal periods even when “the nature of the work” does not “prevent[] the employee from being relieved of all duty.”

If you have questions about the application of the California Supreme Court’s decision or related issues, contact a Jackson Lewis attorney to discuss.

On March 26, 2024, Governor Newsom signed Assembly Bill (AB) 610, which amends the definition of “fast food restaurant” to exempt restaurants in airports, hotels, event centers, theme parks, museums, and certain other locations from the requirements set forth under the Fast Food Council requirements.

Last year, Newsom signed AB 1228, which repeals the FAST Recovery Act but establishes a modified version of the Fast Food Council (Council) until January 1, 2029. The bill also sets forth the minimum wage increases for fast food workers, with an increase to $20.00 effective April 1, 2024. 

The bill includes an urgency clause which means it takes effect immediately. As such the exempted businesses will not need to comply with the minimum wage requirements past in 2023.

If you have questions about AB 610 or related issues, contact a Jackson Lewis attorney to discuss.

At the end of February, the Los Angeles County Board of Supervisors passed an ordinance adding several compliance requirements to the California Fair Chance Act requirements for employers considering the criminal history of applicants and employees in making employment decisions.

The Fair Chance Ordinance (FCO) applies to employers with 5 or more employees in unincorporated areas of Los Angeles County.

The ordinance takes effect March 28, 2024, and is operative September 3, 2024.  

The following is a summary of some of the ordinance’s requirements.

Job Postings

Under the FCO employers shall not prevent or discourage applicants or employees with criminal history from applying or responding to job solicitations, postings, announcements, and advertisements (together referred to as “job postings”) including:

  • Include in all job postings language stating that qualified applicants with arrest or conviction records will be considered for employment.
  • Shall not include statements in job postings that no person with a criminal history will be considered for hire or should not apply.
  • Specify in all job postings any local, state, or federal laws that impose restrictions or prohibit the hiring of individuals with specified criminal history.
  • Specify in the job postings the employer’s intention, if any, to conduct a review of an employee’s criminal history in connection with a conditional offer and include a list of all material job duties of the specific job position which the employer reasonably believes that the criminal history may have a direct, adverse and negative relationship potentially resulting in the withdrawal of the conditional offer of employment.

Background Checks

Covered employers are prohibited from inquiring about criminal history prior to extending an applicant or employee a conditional offer of employment unless legally required to do so. This includes not asking or encouraging an applicant or employee to disclose information about their criminal history or rejecting applications because criminal history was not provided.

If conducting a background check after a conditional offer, the employer must provide notice in writing that includes the following:

  • A statement that the conditional offer of employment is contingent upon the review of the individual’s criminal history.
  • A statement that the employer has good cause to conduct a review of criminal history for the specific job position with supporting justification. A general statement without supporting justification is not deemed sufficient.
  • A complete list of all types of information, background, or history that will be reviewed in addition to the applicants’ or employees’ criminal history, including but not limited to education, social media history, employment history, motor vehicle or driving history, reference checks, credit history, license or credential verification, drug testing, or medical examinations.

In obtaining a criminal background check, an employer may not ask the applicant or employee to provide information orally or in writing regarding the applicant or employee’s criminal history, unresolved arrests, or prior convictions, including asking the applicant or employee to fill out a criminal history questionnaire, prior to the employer’s receipt of the criminal background check report.  Such report must be provided to the applicant or employee before an employer discusses any criminal history information, or requests further criminal history information from, the applicant or employee.

If an employer intends to deny an applicant or employee a position of employment, rescind a condition offer, or take any other adverse action against an employee solely or in part because of the applicant’s criminal history, the employer must first conduct an initial individualized assessment that is documented in writing, of whether the applicant’s criminal history has a direct adverse and negative bearing on the applicant’s ability to perform the duties necessary for the position.

Preliminary Notice and Notice of Adverse Action

If after the initial individualized assessment, the employer intends to withdraw or rescind a conditional offer of employment and/or take any other adverse employment action, the employer shall provide the applicant or employee with a preliminary notice of the adverse action, which must be sent by both regular mail and email, if an email address is available, and contain the following:

  • Notice of intent to withdraw or rescind condition offer of employment and/or take any other adverse employment action due to criminal history.
  • An explanation of the applicant’s right to respond to the notice before the decision becomes final, including the waiting periods and timelessness to respond as specified in the FCO.
  • A copy of the initial individualized assessment
  • Notice of the disqualifying convictions
  • A copy of the criminal background check report

The employer must give the applicant or employee five business days to respond to the preliminary notice of adverse action before making a final decision.  The applicant or employee must be given at least ten additional business days either: (a) to respond to the preliminary notice if the applicant notifies the employer in writing that they dispute the accuracy of the background check and is taking steps to obtain evidence or needs additional time to obtain written evidence if rehabilitation or mitigating circumstances, or (b) to present evidence of rehabilitation or mitigating circumstances orally at a meeting between the applicant or employee and the employer.

The employer must consider all of the information and documents, whether written or oral, timely submitted before making a final decision or taking an adverse action and the employer must complete a second individualized assessment.  If after a second individualized assessment, the employer makes the final decision to withdraw the conditional offer or take adverse employment action, the employer shall notify the applicant or employee by both regular mail and electronic mail of the following:

  • Notice that the employer has made a final decision to withdraw the conditional offer
  • A copy of the second individualized assessment
  • Notice of the disqualifying conviction
  • Information regarding existing procedures the employer has for the applicant to challenge the decision or request reconsideration.
  • Notice of the applicant’s or employee’s right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs.

The employer must provide the final notice of adverse action within 30 calendar days after the applicant or employee timely responds to the preliminary notice.  Otherwise, it will be presumed the delay was untimely and in violation of the section. In order to rebut this presumption, the employer must provide a written explanation justifying the delay.

Recordkeeping

Employers must maintain and preserve any and all records relating to this ordinance for a minimum of four years following receipt of an application.

If you have questions about the Los Angeles County Fair Chance Ordinance or related issues with background checks, contact a Jackson Lewis attorney to discuss.

Last year, California’s Governor signed Senate Bill (SB) 553, which requires all employers to establish, implement, and maintain an effective Workplace Violence Prevention Plan (WVPP). The law takes effect on July 1, 2024. Cal/OSHA is responsible for enforcing the requirements of SB 553, now codified at California Labor Code Section 6401.9.

Last Friday, Cal/OSHA published a Model WVPP. Similar to its model Injury and Illness Prevention Plan (IIPP) and COVID-19 Prevention policy, the Model WVPP is designed to assist employers in drafting their own plans. Employers are not required to use Cal/OSHA’s model but may use it as a template. The Model WVPP contains numerous questions and examples for employers to consider as they assess the risks in their own workplaces and “fill in the blanks” of the template accordingly.

Cal/OSHA also published a Fact Sheet for Employers on the requirements.  The Fact Sheet provides an overview of the requirements of:

  • Creating a workplace violence prevention plan
  • Violent incident log requirements
  • Employer responsibilities with workplace violence recordkeeping
  • Training employees on workplace violence

If you need assistance in developing a Workplace Violence Prevention Plan and related training or have related workplace safety issues, please contact a Jackson Lewis attorney to discuss.

The State of California recently updated two pamphlets that must be provided to new hires.

The California Department of Industrial Relations Division of Workers Compensation updated its “Time of Hire” Pamphlet.  Employers must provide this document to newly hired employees. The document explains what workers’ compensation is, how to file a claim in addition to navigating medical care.

The Employment Development Department (EDD) updated its “For Your Benefit” pamphlet. Employers must provide this pamphlet at the time of hire and discharge of employees. The document details state-provided benefits for employees when terminated or when they are on certain leaves.  The document also discusses how to obtain unemployment insurance, tax requirements for unemployment benefits, a list of workers who are not eligible to obtain unemployment benefits, and information concerning eligibility for state disability insurance.

Both documents are also available in Spanish.

If you have questions about the updated Pamphlets, related employee postings, and notices contact a Jackson Lewis attorney to discuss.

Cal/OSHA, the California Division of Occupational Safety and Health, effective January 1, 2024, increased penalties for certain violations to adjust for inflation and ensure consistency with California and federal law.

This annual increase is mandated by a statute enacted by California in 2017, which authorizes increases in certain minimum and maximum civil penalties to ensure consistency with federal OSHA’s civil penalties. The increase is based on the Bureau of Labor Statistics’ report on the October Consumer Price Index for All Urban Consumers (CPI-U) each year. This year’s adjustment for the inflation rate was approximately 3.24%.

Cal/OSHA has three types of violations typically cited:

  • Regulatory: Relate to regulatory and statutory requirements such as injury and illness reporting and recordkeeping.
  • General: Violations relating to the safety and health of employees.
  • Serious: Violations where there is a realistic possibility of death or serious harm resulting from an actual hazard.

There are also penalties for repeat violations and willful violations of health and safety regulations.

For Cal/OSHA citations issued on or after January 1, 2024, the maximum penalties will be as follows:

  • Regulatory and General: $15,873.00
  • Willful and Repeat: $158,727.00

There was no increase to Serious violations, which remains at $25,000.00.

If you have questions regarding Cal/OSHA penalties or related issues, please contact a Jackson Lewis attorney to discuss.

In October 2023, California’s Governor signed Assembly Bill (AB) 1076 which added the new Business & Professions Code §16600.1, making it unlawful to impose non-compete clauses on employees – which contractual restrictions already are void under Business & Professions Code §16600.

Under AB 1076, employers must notify current employees and former employees (employed after January 1, 2022), that any noncompete agreement or noncompete clause contained within an agreement the current or former employee signed is void unless the agreement or clause falls within one of the statutory exceptions set forth in Business and Professions Code section 16600, et seq. The notices must be an individualized written communication to the employee or former employee, delivered to the last known address and email address the employee provided to the employer.

The changes to the law took effect on January 1, 2024, but employers have until February 14, 2024, to provide the required notices under the statute.

If you have questions about the notice requirements under AB 1076 or related issues, contact a Jackson Lewis attorney to discuss.

California’s pay data reporting portal will open on February 1, 2024, and employers will be required to report on three new data points.

Since 2020, California has mandated that employers with at least 100 employees submit a pay data report to the state Civil Rights Department (CRD) as part of its efforts to advance fair pay. The reporting requires annual submissions detailing pay and hours worked for employees in California, or who are a part of a California establishment, categorized by establishment, job category, race/ethnicity, and sex.

In 2022, the reporting requirements expanded to require reporting on both “payroll employees” (workers on an employer’s payroll) and “labor contractor employees” (workers not on an employer’s payroll who are engaged in the employer’s usual course of business). That amendment also established potential penalties of $100 per employee for employers who fail to comply (or $200 per person for repeat failures).

In January 2024, California again updated its pay data reporting website for the 2024 reporting cycle.

Below are the key updates:

  1. Reporting Portal Opening: The portal in which employers must submit their pay data reports will open on February 1, 2024.
  2. Submission Deadline: The deadline to submit payroll and labor contractor employee reports is May 8, 2024.
  3. New Templates Released: Updated Microsoft Excel templates for this year’s reporting are designed to help employers compile and submit the necessary information.
  4. FAQs Update Pending: The FAQs currently reflect the 2022 reporting period (submitted in 2023) and have not been updated for this cycle. Thus, further guidance for this year may still be released to address any changes or provide additional clarifications.

This year’s payroll employee template introduces three new required data points for each group of employees by establishment, job category, race/ethnicity, sex, and pay band:

  1. The number of employees in the group that work onsite;
  2. The number of employees in the group that work remotely from California; and
  3. The number of employees in the work that work remotely outside of California.

The new labor contractor employee template requires the same data points for each labor contractor, establishment, job category, race/ethnicity, and sex employee group.

Employers should act promptly to prepare their data and use the CRD’s new tools and resources.

If you have questions about California’s pay data reporting requirements or need assistance with this submission, contact a Jackson Lewis attorney to discuss.