California Extends Paid Family Leave from 6 Weeks to 8 Weeks

By Erin W. Kendrella on July 23, 2019

Beginning on July 1, 2020, California will extend the maximum duration of Paid Family Leave (PFL) benefits from six weeks to eight weeks. Individuals may receive benefits from California’s state disability insurance (SDI) program:

To care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner.
To bond with a minor child within one year of the birth or placement of the child through foster care or adoption.

The PFL program is not a leave right and does not provide job protection, but other state and federal laws such as the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and the Parental Leave law can provide such protection for eligible employees.

The PFL program started in July 2004 and provides wage replacement to workers who take time off from work for an ill child, spouse, parent, grandparent, sibling, or domestic partner, or to bond with a child within one year of birth or adoption. Governor Gavin Newsom signed into law the most recent enactment, Senate Bill 83, on June 27, 2019. Senate Bill 83 was part of a larger state budget package for the new fiscal year that starts July 1, and is a move toward the governor’s goal of ultimately expanding paid family leave to six months (for two parents if leave is taken consecutively). To that end, Senate Bill 83 also requires the governor to propose, by November 2019, further benefit increases and job protections for individuals receiving PFL benefits, including an increase in PFL duration “to a full six months by 2021–22.”

In the next year, before Senate Bill 83’s extension takes effect, employers should consider reviewing and revising leave policies, procedures and practices, and their parental or other paid leave benefits to ensure compliance.

California First State to Clarify Definition of Race Discrimination to Include Hair Style. Proactive California Employers Should Review Their Policies and Practices

By Jonathan A. Siegel on July 22, 2019

In an important step for California, Governor Gavin Newsom signed SB 188 into law on July 3, 2019. SB 188 or also known as, the CROWN ACT, “Create a Respectful and Open Workplace for Natural Hair,” clarifies the definition of race for the workplace and educational institutions to include, but not limited to, hair texture and protective hairstyles, and defines protective hairstyles. While certain states have proposed legislation, California is likely the first state to protect employees from racial discrimination based on hairstyle. New York City banned hair discrimination earlier this year.

SB 188 is focused on addressing workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, which could potentially have a disparate impact on Black individuals. Section 1(d) of the law states that workplace dress and grooming policies that prohibit natural hair “are more likely to deter Black applicants” than any other group.

Employers can still generally maintain dress and grooming policies which require employees to secure their hair for safety and hygienic reasons in accordance with the law. SB 188 also makes it clear that employers can maintain dress and grooming policies, so long as they are “valid and non-discriminatory,” and do not have a “disparate impact.” See Governor Newsom Press Release.

California employers should review their dress and grooming policies for issues that might relate to the CROWN Act or other compliance issues. If you have any questions regarding the scope or impact of SB 188, please contact Jonathan A. Siegel or the Jackson Lewis attorney you normally work with.

California Pay Data Reporting Advances: EEOC May Not Be Alone for Long

By Christopher T. Patrick and Susan E. Groff on July 2, 2019

The recent focus on the EEOC’s new Component 2 to its EEO-1 Report has been undeniable. It requires employers report on the race, ethnicity, sex, job type, pay, and hours worked data of its employees.

OMB approved this data collection during the Obama Administration. Then, under President Donald Trump, the OMB reversed course, staying the obligation. Please find the rest of this article on our pay equity advisor blog here.

What’s Left of the De Minimis Doctrine in California? Ninth Circuit Court of Appeals May Soon Decide

By Scott C. Lacunza and David T. Wiley on June 25, 2019

Last year, the California Supreme Court held the federal “de minimis” doctrine does not apply to California state law claims for unpaid wages for off-the-clock work allegedly performed on a regularly occurring basis in store closing and related activities. Troester v. Starbucks Corp., 5 Cal. 5th 829. However, the California Supreme Court also noted that it was “leaving open whether there are wage claims involving employee activities that are so irregular or brief in duration that employers may not be reasonably required to compensate employees for the time spent on them.” So, what circumstances may qualify for the exception left open in Troester? The U.S. Court of Appeals for the Ninth Circuit may soon answer the question left open by the California court.

Please find the rest of this Jackson Lewis legal update here.

Will They or Won’t They: A Look at Some Significant Proposed California Legislation Relating to Leaves, Disability, and Other Protected Time Off

By Ariel Beverly and Susan E. Groff on June 3, 2019

With May 31st 2019, marking the deadline for bills to be passed by their California house of origin, the following are some key pieces of employment legislation that may find their way to Governor Gavin Newsom’s desk in October. Here is a round-up of potential 2020 legislation worth watching:

Please find the rest of this article on our Disability, Leave & Health Management Blog here.

Cal/OSHA Relaxes Proposed Wildfire Smoke Emergency Regulation

By Trever L. Neuroth on May 31, 2019

After receiving over 40 public comments and holding a public meeting on its proposed wildfire smoke emergency regulation, California’s Department of Industrial Relations, Division of Occupational Safety and Health (“DOSH”), has eased some requirements of the proposed rule. (If you would like more information on the proposed regulation, you can check out this previous OSHA Law Blog post). Yet, much of the rule has remained the same.

Please find the rest of this article on our OSHA Law Blog here.

Looking Back and Looking Forward: Retroactivity and Expansion of the California Independent Contractor Test

By Joelle A. Mervin and Hazel U. Poei on May 28, 2019

In April 2018, the California Supreme Court issued its ruling in Dynamex Operations West v. Superior Court (2018) 4 Cal. 5th 903, 916-17 and set forth the standards for determining independent contractor status for purposes of the California Industrial Welfare Commission Wage Orders. The Court presumed that a worker is an employee unless he or she meets the requirements of the “ABC Test.”

To satisfy the ABC Test and thus be legally considered an independent contractor, the worker must: (a) be “free from control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;” (b) perform work outside the “usual course of the hiring entity’s business;” and (c) be “customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” Dynamex, 4 Cal. 5th at 916-17.

On May 2, 2019, the Ninth Circuit Court of Appeals issued a decision that took the Dynamex decision one step further. In Vazquez v. Jan-Pro Franchising Int’l, Inc., 2019 U.S. App. LEXIS 13237, the Ninth Circuit determined that Dynamex should apply retroactively. The Court in Dynamex had presumed that the ABC Test would apply retroactively, reasoning that it was merely clarifying the state of established California law and not creating new law.

Shortly thereafter, on May 3, 2019, the Division of Labor Standards Enforcement (“DLSE”) issued a letter opining the ABC Test applies to both the Wage Orders and any Labor Code provisions that enforce requirements set forth in the Wage Orders, including Labor Code §§ 226 (itemized wage statements); 226.7 (meal and rest periods ); 510 (overtime); 512 (meal and rest periods); 1182.12 (minimum wage); 1194 (overtime); 1194.2 (liquidated damages); 1197 (minimum wage); and 2802 (reimbursement of expenses).

In light of Dynamex, Vazquez, and the May 3, 2019 DLSE opinion letter, claims brought regarding potential employee misclassifications (even if the claims pre-date Dynamex) could be reviewed under the ABC Test by California courts. If you have any questions regarding these developments, please contact Joelle A. Mervin, Hazel U. Poei, or the Jackson Lewis attorney with whom you regularly work.

Federal Law Preempts California’s Meal and Rest Break Laws for Commercial Drivers

By Sehreen Ladak and Hazel U. Poei on May 22, 2019

Judge George H. Wu of the United States District Court for the Central District of California recently dismissed meal and rest break claims brought under the California Labor Code in a class action against motor carrier U.S. Xpress.

In Anthony Ayala v. U.S. Xpress Enterprises, Inc. et al, Judge Wu granted U.S. Xpress’ motion for partial summary judgment, stating that he did not possess the authority to review the merits of the case since the Federal Motor Carrier Safety Administration (“FMCSA”) determined that California’s meal and rest break rules are preempted by federal law.

By way of background, on December 28, 2018, the FMCSA published a Notice Granting Petition for Determination of Preemption in the Federal Register stating:

[T]he FMCSA concludes…(3) the MRB [California meal and rest break] [r]ules have no safety benefit; (4) the MRB Rules are incompatible with the FMCSA’s HOS [Hours of Service] Rules; and (5) enforcement of the MRB Rules would cause an unreasonable burden on interstate commerce. Accordingly, the FMCSA grants the petition for preemption…California may no longer enforce the MRB Rules with respect to drivers of property-carrying CMVs [commercial motor vehicles] subject to FMCSA’s HOS rules (emphasis supplied).

The Ayala case represents the first challenge to the FMCSA Preemption Determination before a California district court.

Currently, several petitions challenging the FMCSA’s preemption determination are working their way through the Ninth Circuit. These petitions are expected to briefed within the next few months. However, as of now, federal district courts are bound by the FMCSA order unless it is invalidated by the Ninth Circuit.

If you have any questions about this case or about compliance with California wage and hour laws, please contact Sehreen Ladak, Hazel U. Poei, or the Jackson Lewis attorney with whom you regularly work.

Employers, Politics, and Free Speech

By Shaina L. Kinsberg and Hazel U. Poei on May 21, 2019

With political campaigns well underway, the protection of “free speech” and concerns that regular political discourse could create potential liability are mounting. Notably, within the last year, California’s Fair Employment and Housing Commission expanded upon a number of definitions and specific employment practices prohibited under the Fair Employment and Housing Act (“FEHA”). Not listed among them is any specifically identified protection applicable to political speech or beliefs. (See Government Code § 12940(a)[“It is an unlawful employment practice…[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person…”] and definitions per Government Code § 12926).

California’s laws addressing political discourse to this end are vague. California Labor Code § 1101 prohibits employers from implementing “any rule, regulation, or policy” (1) “forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office” or (2) “controlling or directing, or tending to control or direct the political activities or affiliations of employees.” California Labor Code § 1102 provides “[n]o employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” To this end, employers cannot enact policies limiting employees’ political activities or affiliations or in essence “force” employees to follow the employer’s political leanings.

On the contrary, political “beliefs” or “views” are not a specifically protected category under California’s discrimination laws. Nothing in either of the two Labor Code provisions above directly addresses discrimination or retaliation on the basis of expressed political views. Nor does the First Amendment serve to provide any further guidance. With limited exceptions, the U.S. Constitution’s guarantee of “freedom of speech” applies only to government action and not private employers/employees. The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees only.

Based upon the narrow scope of protected categories and the vague and uncertain guidelines provided by the applicable California statutes, we would recommend California employers seek counsel in advance of crafting any such handbook policy. Please contact Shaina L. Kinsberg, Hazel U. Poei, or the Jackson Lewis attorney you regularly work with for further guidance.