In light of recent wildfires across Southern California, employers should make sure they are familiar with California’s wildfire smoke standard.  Sadly, harmful air quality from wildfire smoke can occur anywhere in the state on short notice, so it is vital that employers prepare early.

With some exceptions, the wildfire smoke standard applies to workplaces where the air quality index is 151 (Unhealthy) or higher and where it’s reasonably anticipated that employees may be exposed to wildfire smoke. 

Employers can monitor the AQI using the following websites:

In addition to applying to outdoor settings, the standard also applies to indoor locations where the air is not filtered or if doors and windows are kept open, such as warehouses, packing, manufacturing, and distribution facilities.

Under the wildfire smoke standard, employers must protect employees from smoke by:

  • Monitoring the local air quality index;
  • Ensuring open communication with employees;
  • Training employees on the information contained in Appendix B to Section 5141.1;
  • Modifying the workplace, if possible, to reduce exposure to wildfire smoke; and
  • Providing proper respiratory protection, like N95 respirators, for voluntary use when work must be performed in a location with poor air quality.

Moreover, if the air quality index for particulate matter (PM) 2.5 exceeds 500 due to wildfire smoke, respirator use is mandatory. Employers must make sure employees are using respirators correctly in these situations.  If employers cannot move operations and do not have access to respiratory protection, then operations may need to be stopped until the air quality improves.

To assist employers, Cal/OSHA maintains a list of vendors who report available supplies of N95 disposable respirators, which is updated regularly.

Employers should also review requirements pertaining to compensation and wildfires. The California Labor Commissioner’s Office has FAQs pertaining to important employment issues that employers should consider when their employees or worksite are impacted by wildfires.

If you have questions about workplace requirements pertaining to wildfires or related issues, contact a Jackson Lewis attorney to discuss.

On January 1, 2025, Senate (SB) Bill 399, officially went into effect in California. California joined other states, including Illinois, Connecticut, Hawaii, New York, and Oregon, in enacting statutes that prohibit “captive audience” meetings, similarly limiting employers’ ability to conduct mandatory meetings on religious or political matters, including a labor organization.

Several business groups have filed a federal lawsuit challenging the constitutionality of SB 399 and seeking declaratory and injunctive relief. The lawsuit, filed in the Eastern District of California, argues that the law infringes on employers’ rights to free speech and equal protection under the First and Fourteenth Amendments of the U.S. Constitution. The plaintiffs contend that SB 399 discriminates against employers’ viewpoints on political matters and restricts the content of their communications with employees. They argue that the law stifles employer speech and is preempted by the National Labor Relations Act (NLRA), which protects employer free speech under Section 8(c).

The legal battle over SB 399 highlights the ongoing tension between protecting workers’ rights and preserving employers’ freedom of speech.

If plaintiffs are successful, SB 399 may be blocked from enforcement but employers will need to wait to see how the court views the case. While litigation is pending, California employers may need to consider whether it is in their organization’s best interest to make such meeting attendance voluntary or proceed in accordance with the NLRA.

Jackson Lewis will continue to track the legal challenge. If you have questions about SB 399 or related issues, contact a Jackson Lewis attorney to discuss.

The California Supreme Court issued several important decisions in 2024 about issues such as the application of PAGA to public employees and the definition of “hours worked.”

Several cases are pending before the state’s high court. Here are the highlights and what the cases could mean for employers in the Golden State.

Brown v. City of Inglewood

Issue presented:  Are elected officials “employees” for purposes of whistleblower protection under Labor Code section 1102.5, subdivision (b)?

Brown, the elected treasurer of Inglewood since 1987, sued the City and several members of the Inglewood City Council. Brown alleged that after she reported concerns about financial improprieties, the City and the individual defendants defamed and retaliated against her. She brought claims for defamation, violation of Labor Code section 1102.5 (which prohibits retaliation against employees for reporting illegal activities), and intentional infliction of emotional distress (IIED).

The defendants filed a special motion to strike the complaint under California’s anti-SLAPP statute, which aims to prevent lawsuits that are intended to silence free speech. The trial court granted the motion in part but denied it regarding the Section 1102.5 retaliation claim and the IIED claim based on retaliation.

On appeal, the California Court of Appeals reversed the trial court’s decision in part. The appellate court ruled that Brown, as an elected official, is not considered an “employee” under Section 1102.5, and therefore, her retaliation claim under this statute was not legally sufficient. The Court of Appeal reasoned that the inclusion of elected officials in the definition of “employee” in other statutes (e.g., the Workers’ Compensation Act) but not within the definition for purposes of Section 1102.5 reflected the legislature’s plain decision to deny them the protections of that section of the Labor Code.  Consequently, the court also struck down the retaliation-based IIED claim against the individual defendants. 

The California Supreme Court’s decision will be significant for public entities as it clarifies the scope of whistleblower protection under Labor Code section 1102.5.

California Department of Corrections and Rehabilitation v. Workers’ Comp. Appeals Bd

The issue presented: Should the calculation of enhanced workers’ compensation benefits for an employer’s serious and willful misconduct under Labor Code section 4553 be based on temporary disability payments available under the Labor Code?

Michael Ayala, a correctional officer, was severely injured in a preplanned attack by inmates in August 2002. Ayala filed a workers’ compensation claim, alleging that his injury was caused by the serious and willful misconduct of his employer, the California Department of Corrections and Rehabilitation (CDCR). Under Labor Code section 4553, such allegations could increase the compensation recoverable by one-half if proven.

The Workers’ Compensation Appeals Board (WCAB) initially found that CDCR had failed to act on credible threats of inmate violence, which were reported before the attack. This decision was based on the Board’s finding that CDCR took the facility off lockdown despite knowing about the planned attack.

However, the California Court of Appeal annulled the WCAB’s decision. The Court held that the compensation Ayala received while on industrial disability leave and enhanced industrial disability leave did not qualify as “compensation” under Section 4553 because while the Government Code did provide for industrial disability leave and enhanced industrial disability leave, their inclusion of “temporary disability” under the Government Code definition of “industrial disability” did not alter the Labor Code’s definition for the purposes of determining compensation under Section 4553. Therefore, the base compensation for calculating the increased award should have been what Ayala would have received on temporary disability, which is typically two-thirds of his salary.

The decision will be important for employers in evaluating the settlement of serious and willful claims, which typically are not covered by worker’s compensation insurance.

Fuentes v. Empire Nissan, Inc.

The issue presented:  Where an arbitration agreement is fair in substance, is it nevertheless unenforceable for unconscionability where it is a one-page form with tiny, seemingly blurred print, largely unreadable, and presented on a take-it-or-leave-it basis?

Here, the trial court held the arbitration agreement procedurally unconscionable. The Court of Appeal reversed, holding that while the tiny font of the agreement created a problem of procedural unconscionability, the substance of the arbitration agreements was fair and there was therefore no reason to invalidate the agreements for unconscionability.

The result of this case will shape the future of employment arbitration agreement enforceability, which has been changing dramatically in recent years.

Iloff v. LaPaille

Issues Presented: For an employer to establish its “good faith” defense to liquidated damages, must it demonstrate that it took affirmative steps to ascertain whether its pay practices complied with the Labor Code and Industrial Welfare Commission Wage Orders? May a wage claimant prosecute a paid sick leave claim in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?

In this case, the plaintiffs filed wage claims with the Division of Labor Standards Enforcement (DLSE) against defendants Cynthia LaPaille and Bridgeville Properties, Inc. (BPI) for unpaid wages in violation of the Labor Code. The plaintiffs received a favorable order from the Labor Commissioner, and BPI appealed to the Superior Court. In the subsequent Superior Court action, the plaintiffs were represented by the Labor Commissioner’s office.

Following a de novo trial on the wage claims, the court found that plaintiffs were entitled to unpaid wages and certain penalties but rejected the plaintiffs’ unfair competition law claims under Business and Professions Code section 17200 (the UCL). The court declined to award the plaintiffs liquidated damages or penalties for violations of sick leave notice requirements, and did not impose personal liability on BPI’s CEO, Cynthia LaPaille.

The issues here are the Court of Appeal’s holdings that liquidated damages were not appropriate for failure to pay minimum wages under Labor Code section 1194.2(a), and that plaintiffs do not have private rights of action for sick leave penalties.

Section 1194.2(a) allows courts to reduce or eliminate liquidated damages where an employer can show that it acted in “good faith” with “reasonable grounds” for believing it did not violate the law. Here, because the plaintiffs initiated the idea of working in exchange for rent, rather than wages, as an independent contractor, and the unsettled status of the law on this subject at the time, the trial court acted within its discretion in finding the defendants acted in good faith.

Moreover, sick leave penalties require independent actions by the Labor Commissioner or Attorney General’s office, and no private right of action exists to enforce the requirements of the Healthy Workplaces, Health Families Act. Even though the plaintiffs were represented by the Labor Commissioner in their superior court action, this did not suffice to permit their pursuit of sick leave penalties.

Separately, and not at issue with the Supreme Court, the Court of Appeal held that LaPaille may be held personally liable due to her managerial role with BPI under Labor Code section 558.1(a), which expressly permits personal liability for individuals “acting on behalf of an employer.” It further held that the trial court had discretion as to whether equitable relief for unfair business practices would be in the interest of justice, even where Labor Code violations exist. Because the parties appeared to lack understanding as to the plaintiff’s entitlement to wages for the services they performed for BPI, the Court of Appeal found the trial court properly exercised its discretion in denying equitable relief.

Zhang v. Superior Court

Issue Presented: If a party moves to compel arbitration in a non-California forum pursuant to a forum-selection clause and seeks to stay related California litigation under Section 1281.4, can the opposing party preempt the court’s “competent jurisdiction” requiring a stay of the California litigation by merely invoking Labor Code section 925? Moreover, can a party to an arbitration agreement circumvent the arbitration agreement’s delegation of all issues to an arbitrator by invoking Labor Code section 925?

Plaintiff Zhang is a former Dentons law firm partner who worked in California. After Dentons removed him from the partnership for diverting money owed to the firm, they initiated arbitration in New York pursuant to a signed arbitration agreement contained within the partnership agreement entered into between Plaintiff and his former firm. Zhang then filed suit in California, arguing that he was an employee and that Labor Code section 925 preempted arbitration in New York. Section 925 contains a prohibition against requiring a California employee to adjudicate California claims elsewhere.  Dentons sought a stay under Section 1281.4. The trial court granted Denton’s motion for a stay. After the Court of Appeal denied Zhang’s petition for a writ and the Supreme Court ordered the Court of Appeal to review, it denied Zhang’s petition on the merits, deciding (1) that the stay was properly granted because the partnership agreement delegated to the arbitrator all questions of arbitrability; (2) the New York court was a court of competent jurisdiction because Section 925 did not automatically strip another state’s courts of jurisdiction; and (3) giving effect to the delegation clause comported with the Federal Arbitration Act, because doing so protected the right to enforce negotiated arbitration agreements.

This case is crucial for employers because it may affect who can benefit from Labor Code section 925, and therefore preempt forum-selection clauses.

Jackson Lewis continues to track California case law affecting employers. If you have questions about any of the cases pending before the California Supreme Court or related issues, contact a Jackson Lewis attorney to discuss.

Recently, the Los Angeles City Council approved a motion to amend the Living Wage Ordinance (LWO) and the Hotel Worker Minimum Wage Ordinance (HWMO), which will impact airport and hospitality workers, respectively. On December 11, 2024, the City Council approved a draft ordinance and directed the City Attorney to prepare a formal draft ordinance for the City Council’s final approval. The ordinance will likely be finalized in early 2025.  

Currently, the LWO for airport employees is $19.28 per hour or 25.23 if health benefits are not provided and the HWMO is $20.32 per hour.

The draft ordinance proposes an annual increase of the hourly wage under the LWO and HWMO as follows

DateRate
July 1, 2025$22.50
July 1, 2026$25.00
July 1, 2027$27.50
July 1, 2028$30.00

The draft ordinance also provides for a health payment of $8.35 an hour commencing on July 1, 2025. This is an increase from the current $5.95 per hour under the LWO and would be a new benefit for most hotel workers.  The health care benefit for hotel workers would be applied as it is under the LWO. And then starting July 1, 2026, the health care benefit would be adjusted by the percentage increase, if any, in the California Department of Managed Healthcare’s Large Group Aggregate Rates report.

Jackson Lewis will continue to track this and other local ordinances affecting California employers. If you have questions on the changes coming to the City of Los Angeles Living Wage Ordinance and Hotel Worker Minimum Wage Ordinance, contact a Jackson Lewis attorney to discuss.

On December 18, 2024, Governor Newsom proclaimed a State of Emergency to streamline and expedite the state’s response to Avian influenza A (H5N1), commonly known as “Bird Flu.”

This may give many employers flashbacks to the COVID-19 Pandemic and shelter-in-place requirements.  Currently, it is not that type of emergency. However, there are some mandates that employers in affected industries should be aware of.

In response to the outbreak of Bird Flu, the Labor & Workforce Development Agency (LWDA), through the Department of Industrial Relations, and the California Department of Public Health (CDPH) are engaging in an outreach strategy to educate employers and workers about Bird Flu. This page provides comprehensive information on prevention and control measures to reduce the risk of exposure to Bird Flu and personal protective equipment (PPE) requirements.

Moreover, the State of California will be distributing PPE to high-risk workers at dairy farms.

Cal/OSHA will also be responding to reports of worker illness and conducting programmed inspections in high-hazard industries, including the dairy industry.  While the declaration mainly identifies dairy farms as high hazard, Cal/OSHA has already published a page on Bird Flu, that identifies workers who have job-related contact with birds or dairy cows as at risk. This includes bird rehabilitation centers, animal sanctuaries, slaughterhouse workers, and lab workers who test samples for Bird Flu.

While employers in these types of industries should be cautious, the CDPH states the current risk is low and there is no known person-to-person spread of Bird Flu detected in California.

If you have questions about the State of Emergency for Bird Flu or related compliance issues, contact a Jackson Lewis attorney to discuss.

The Labor Commissioner’s office recently published an updated version of its Frequently Asked Questions Page for California Paid Sick Leave.

Here are some of the highlights of the updates:

Agricultural Employees

The FAQs were updated to reflect changes made by Senate Bill (SB) 1105, which expanded the reasons that agricultural employees may use paid sick leave.

Victim of a Crime

The Labor Commissioner revised the FAQ to comply with amendments to paid sick leave by Assembly Bill (AB 2499) pertaining to time off for victims of qualifying acts of violence.

Accrual versus Carryover versus Use

The FAQ which is geared more toward employee use, added a section to clarify the difference between accrual, carryover, and use. This explanation is used because the law allows employees to accrue more time than an employer is required to allow an employee to use in a single year.

Fully Exempt versus Partially Exempt Employees

The FAQ now clarifies the difference between employees who are fully exempt from paid sick leave requirements and employees who are partially exempt.

In the FAQ it states that the following employees are fully exempt from paid sick leave:

  • Individuals employed by an air carrier as a flight deck or cabin crew member, if they receive compensated time off at least equivalent to the requirements of paid sick leave
  • Retired annuitants working for governmental entities
  • Employees of railroads
  • Employees in the construction industry are covered by a collective bargaining agreement with specific provisions.

Employees partially exempt from the paid sick leave law include employees covered by a qualifying collective bargaining agreement (CBA) with specified provisions.

For the collective bargaining agreement to partially exempt an employer, the agreement must expressly provide for the wages, hours of work, and working conditions of employees, and expressly provide for paid sick days or a paid leave or paid time off policy that permits the use of sick days for all employees, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.

If you have questions on the updated Labor Commission FAQs or related issues, contact a Jackson Lewis attorney to discuss.

As we wrap up 2024, here is a review of some of the changes to California employment law that will continue to affect employers in 2025.

Legislative Changes

Governor Signs Bill to Exempt Certain Businesses from Fast Food Minimum Wage

Expanded Information to Provide Regarding Workplace Injury

New Requirement for Labor Commissioner to Develop Whistleblower Posting for Employers

Assembly Bill 1034: Construction Industry PAGA Exemption Extended Until 2038

Assembly Bill 2975: California Passes Amendments to Healthcare Workplace Violence Prevention Requirements

Senate Bill 988: Understanding the Freelance Worker Protection Act – What Employers Need to Know

Senate Bill 399: Governor Newsom Signs Law To Curtail Employer Mandatory Meetings With Employees During Union Organizing

Senate Bill 1350: Your Hearth is Cal/OSHA’s New Home: The Agency’s Jurisdiction Expands to Include Household Domestic Services

Senate Bill 1100: New California Law Restricts Driver’s License Requirements in Job Postings

Assembly Bill 2123: Changes in Managing Employee Leave under Paid Family Leave

Assembly Bill 2499: California Amends Jury, Court, and Victim Time Off Provisions

Senate Bill 1137: California Amends Law to Clarify Protection for Combinations of Protected Characteristics

Assembly Bill 1815: Amendments to The CROWN Act Signed by Governor Newsom

Senate Bill 1340: Governor Signs Bills Mandating Greater Administrative Collaboration on the Enforcement of Workplace Discrimination Laws

Senate Bill 1105: California Passes Expanded Use of Paid Sick Leave for Agricultural Employees

Assembly Bill 3234: New Requirements for Employers Conducting Social Compliance Audits

Case Law Changes

California Supreme Court Rules Trial Courts Lack Authority to Strike PAGA Claims Based on Manageability

California Supreme Court Issues Opinion on “Hours Worked”

California Supreme Court Upholds Good Faith Belief Defense for Certain Wage Statement Penalties

California Court of Appeal Holds California’s Law Regarding Payment of Arbitration Fees Preempted by FAA

California Supreme Court Upholds Proposition 22 as Constitutional

California Supreme Court Clarifies Discovery Limitations and Severability in Arbitration Agreements

California Supreme Court Holds Public Employers Exempt from Labor Code and PAGA

Prejudice Not Required: California Supreme Court Eases Standard for Waiving Arbitration Rights

Administrative Changes

Cal/OSHA Passes Indoor Heat Regulation

Jackson Lewis will continue to track changes that affect California employers in 2025. If you have questions about California workplace law compliance, contact a Jackson Lewis attorney to discuss.

Pursuant to Assembly Bill (AB 2299), the Labor Commissioner was required to develop a model list of employee rights and responsibilities under existing whistleblower laws.

The Labor Commissioner had previously issued a sample notice which included a disclaimer that the Labor Commissioner did not guarantee its posting fulfilled the requirements of California law.

Recently, the Labor Commissioner published an updated notice and confirmed this notice meets the requirements of Labor Code section 1102.8(a)-(b).

Employers should ensure they are using the updated notice effective January 1, 2025.

If you have questions about the new notice or any other employment laws, please contact a Jackson Lewis attorney to discuss.

Voters in California rejected Proposition 32, which would have increased the minimum wage to $18 for all employers by 2026. Under the proposition, the minimum wage increases depended on the size of the employer. Specifically, employers with 26 or more would have had to pay $17 hourly for the remainder of 2024 and $18 hourly beginning on January 1, 2025. Employers with 25 or fewer employees would have had pay $17 hourly beginning January 1, 2025, and $18 hourly beginning January 1, 2026. Moreover, the minimum wage would have continued to adjust annually for inflation.

While the votes on ballot measures will not be formally certified until December 6th, it seems the race is over with voters extinguishing the Proposition by a close margin—  approximately 49.3% of California voters supporting an increase to the minimum wage and 50% of California voters rejecting Proposition 32.

Despite Proposition 32’s failure, California’s minimum wage will still increase on January 1, 2025 to $16.50. In addition, the minimum wage will increase on January 1, 2025, for several municipalities. Below, is a list of some of the local minimum wages increasing at the start of the year.  Notably, there are many local municipalities as indicated below that already require minimum wages to increase beyond $18 after January 2025.  Employers must continue to monitor the minimum wages at the local and state level.   

LocaleNew Rate
Belmont$18.30
Burlingame$17.43
Cupertino$17.75
Daly City$17.07
East Palo Alto$17.45
El Cerrito$18.34
Foster City$17.40
Half Moon Bay$17.47
Hayward$17.36 for 26 or more employees
$16.50 for 25 or fewer employees
Los Altos$18.20
Menlo Park$17.10
Mountain View$19.20
Novato$17.27 for 100 or more employees
$17.00 for 26-99 employees
$16.50 for 25 or fewer employees [state minimum]
Oakland$16.89
Palo Alto$18.20
Petaluma$17.97
Redwood$18.20
San Carlos$17.32
Santa Clara$18.20
San Diego$17.25
South San Francisco$17.70
San Jose$17.95
San Mateo$17.95
San Mateo County (unincorporated areas)$17.46
Sonoma$18.02 for 26 or more employees
$16.96 for 25 or fewer employees
Sunnyvale$19.00
West Hollywood$19.65

If you have questions about California minimum wage or related issues, please reach out to a Jackson Lewis attorney to discuss.

For an employee to be exempt from overtime under California law, their job must fall into a specific exempt category.

The most common exemptions are for executive, administrative, and professional roles. Employees in these capacities generally qualify if their work meets detailed requirements and they earn at least twice the state minimum wage for full-time employment (40 hours).

For certain exempt categories, however, the Department of Industrial Relations sets increases based on changes to the California Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI). For example, under the Labor Code, certain computer software employees and licensed physicians and surgeons must be paid a statutorily specified rate based on the CPI in order to be deemed exempt from overtime regulations.

According to section 515.5, employees working in the computer software field who satisfy specific conditions will be exempt from overtime regulations. This exemption covers individuals whose primary duties involve intellectually or creatively focused work that necessitates discretion and independent judgment. These employees must also possess a high level of skill and engage in tasks such as programming, systems analysis, and software design.

Effective January 1, 2025, the minimum hourly rate for computer software employees to meet this exemption will be $56.97, with a minimum monthly salary of $9,888.13 (annually $118,657.43).

Similarly, under Labor Code section 515.6, certain licensed physicians and surgeons must be paid a minimum hourly rate. Effective January 1, 2025, that hourly rate is $103.75 to meet the exemption.

If you have questions about overtime exemption requirements or related issues, contact a Jackson Lewis attorney to discuss.