Last week, the Cal/OSHA Standards Board approved an emergency temporary standard regarding respirable crystalline silica (RCS). The standard will take effect December 29, 2023.

The emergency temporary standard (ETS)comes after the California Department of Public Health issued an alert in November of worker deaths due to silicosis, which is caused by silica dust entering the lungs.  

The ETS includes revisions intended to protect workers engaged in high-exposure tasks such as cutting, grinding, and polishing artificial stone and natural stone containing more than 10% crystalline silica.

The ETS includes additional exposure control precautions employers should undertake such as suppression of dust by ensuring water coverage, protecting workers from airborne exposure during housekeeping, and using warning signage.

Covered Employees

The ETS applies to California workers exposed to RCS except:

  • Construction work covered under section 1532.3, which covers exposures to RCS
  • Agricultural operations covered under section 3436, which covers machinery and equipment.
  • Exposures that result from the processing of sorptive clays

Exposure Control Plan and Training

Under the ETS, the written exposure plan is expanded to include:

  • Air monitoring records showing that engineering controls are effective.
  • Procedures for the proper use of personal protective equipment.
  • Documentation of proper report of carcinogen use to Cal/OSHA as required by section 5203.
  • Training procedures to ensure employees can prevent RCS exposures.

The training for employees must include the use of required dust control methods and health hazards and symptoms of RCS exposure.

Cal/OSHA has a Model Exposure Control Plan available on its website.

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

In October, California passed Senate Bill (SB) 616, which increases the amount of paid sick leave employers are required to provide to California employees.

The Labor Commissioner recently published an updated Frequently Asked Questions page to cover changes made by SB 616. The following is some information of note from the FAQs.

Notice to Employees / Updated Posting

An employer who previously provided less than 5 days or 40 hours of paid sick leave should provide employees with a new copy of the Notice to Employees required under California’s Wage Theft Protection Act.

Employers must also post the updated paid sick leave poster available on the Labor Commissioner’s website.

Transitioning Plans to Comply

The Labor Commissioner also details how employers can transition plans appropriately to the new requirements under SB 616.

Accrual Method:

For accrual plans that previously provided 3 days/24 hours, if an employer uses an annual start date other than January 1 and implements a 12-month use cap, that cap must change to 40 hours or 5 days on January 1, 2024. The Labor Commissioner provides the following example: if an employer uses the 12-month period of May 1 – April 30 and implements a cap and an employee used 24 hours or three days before January 1, 2024, the employer must allow the employee to use an additional 2 days or 16 hours before April 30 if the employee has accrued that additional leave.

Up-Front Method:

For up-front plans that previously provided 3 days/24 hours, the employer has the choice to frontload the two additional days on January 1, 2024, or move the measurement of the yearly period to January 1, 2024, and frontload five days. 

The FAQs also review issues unrelated to the updates to the state paid sick leave such as when employees are eligible for paid sick leave and reasons paid sick leave may be taken.

If you have questions about compliance with California Paid Sick Leave requirements, or related issues, contact a Jackson Lewis attorney to discuss.

Under the California Wage Theft Protection Act (Cal. Labor Code section 2810.5), all employers are required to provide each employee with a written notice containing specified information at the time of hire, including wage and paid sick leave information. The notice must be in the language the employer normally uses to communicate employment-related information to the employee.

This year California’s legislature passed Senate Bill (SB) 616 and Assembly Bill (AB) 636, which affect the employee notice requirement and therefore, the state’s earlier model notice.  SB 616 increases the amount of paid sick leave employers are required to provide. AB 636 requires an employer to include in the notice information regarding the existence of a federal or state disaster declaration applicable to the county or counties in which the employee will be employed and that was issued within 30 days before the employee’s first day of employment. These revisions to California law take effect January 1, 2024.

In advance of the changes in the law, the Labor Commissioner has published an updated Notice to Employee template that specifies the new required amount of paid sick leave as well as a section for employers to provide notice of disaster declarations, as needed.

As of the publishing of this article, the Labor Commissioner has only published an English-language version of the notice. Employers can go to the Labor Commissioner’s Wage Theft Protection Act page to check for updates to other versions of the template which should be available soon.  

If you have questions about compliance with Labor Code section 2810.5 or related issues, contact a Jackson Lewis attorney to discuss.

The Anaheim Hotel Worker Protection Ordinance takes effect January 1, 2024, though it had a rocky path to passage.

It started with a more expansive ordinance proposed in May, which was sent to the voters in October and failed.

Meanwhile, the City Council passed an ordinance focused on the safety of hotel workers over the summer that will take effect next year. The following is an overview.

Covered Employers

The ordinance covers hotel employers defined as any person who owns, controls, or operates a hotel in the City of Anaheim, and includes any person or contractor who, in a managerial, supervisory, or confidential capacity, employs hotel workers to provide services at a hotel in conjunction with the hotel’s purpose.

Personal Security Devices

As with many of the hotel employee protection ordinances, Anaheim’s ordinance requires covered employers to provide a personal security device commonly referred to as a “panic button” whenever a worker works in a guest room or restroom facility where other workers are not assigned to be present.

Covered employers must also provide training to workers regarding how to use and maintain the personal security device, the hotel’s protocol for responding to activation, and the employee’s rights.

Employers must retain records of incidents where personal security devices were activated for three years from the incident.

Employee Reporting

If a hotel worker brings attention to violent or threatening conduct occurring on hotel property or in the workplace the employee must be afforded the following rights:

  • sufficient paid time off up to 3 hours on the date of the incident to report violent or threatening conduct to a law enforcement agency and to consult with a counselor or advisor of the hotel worker’s choice.
  • Upon request by a hotel worker, a hotel employer shall provide reasonable accommodations to a hotel worker who has been subjected to violent or threatening conduct. Reasonable accommodations may include, but are not limited to, a modified work schedule, reassignment to a vacant position, or other reasonable adjustment to job structure, workplace facility, or work requirements.

If you have questions about the Anaheim Hotel Workers Protection Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

For an employee to be exempt from overtime regulations under California law, the employee must fit into a category of work that is deemed exempt.

The most common exemptions are the executive, administrative, and professional exemptions.  Workers who are employed in administrative, managerial, executive, or professional capacities generally fall under one of these exemptions. Each exemption has detailed requirements as to the amount and type of work performed and most exempt employees must meet a minimum salary threshold. The minimum salary threshold is typically no less than two times 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 Labor Code section 515.5, 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.

Under section 515.5, “employee[s] in the computer software field” who meet certain criteria will be exempt from overtime regulations. The exemption applies to those who are “primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment,” are “highly skilled,” and who perform work including programming, systems analysis, and software design. Effective January 1, 2024, the minimum hourly rate for computer software employees to meet this exemption will be $55.58, with a minimum monthly salary of $9649.96 (annually $115,763.35).

Similarly, under Labor Code section 515.6, certain licensed physicians and surgeons must be paid a minimum hourly rate. Effective January 1, 2024, that hourly rate is $101.22 to meet the exemption.

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

As the temperatures cool outside, the regulations for indoor heat illness prevention are heating up. Cal/OSHA has been working on a proposed Indoor Heat Illness Prevention Standard since 2017. In the spring Cal/OSHA Standards Board published a draft standard and announced a public hearing on Heat Illness Prevention in Indoor Places of Employment.

On November 9, 2023, the Board issued its Second Notice of Proposed Modifications. These revisions were the result of further comments from stakeholders and Board staff.

Here are some of the proposed modifications:

  • Clarifying that compliance is not required for incidental heat exposures where an employee is exposed to temperatures above 82 degrees for less than 15 minutes in any 60-minute period.
  • Adds a definition for “high radiant heat source,” which is “any object, surface, or other source of radiant heat that, if not shielded, would raise the globe temperature of the cool-down area five degrees Fahrenheit or greater than the dry bulb temperature of the cool-down area.”  
  • Adds detail that measuring temperature and heat index should be done where employees work and at times during the work shift when employee exposures are expected to be the greatest.  
  • Clarifying that Indoor Heat Illness Prevention may be added to training pertaining to heat illness prevention for outdoor employment where employees are affected by both.

The Board is accepting written comments on the modifications of the text and the changes to documents until 5:00 p.m. on November 28, 2023, at the Occupational Safety and Health Standards Board, 2520 Venture Oaks Way, Suite 350, Sacramento, California 95833 or e-mailed to oshsb@dir.ca.gov.

If you have questions about heat illness prevention in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

As we move into what many refer to as the holiday season, employers may have questions about handling wages and the holidays. Here are four things for employers to understand about holidays and pay for hourly (non-exempt) employees.

  1. Hours worked on a holiday, Saturdays or Sundays should be treated like hours worked on any other day. This means that employers do not have to pay a special premium for work performed on those days, other than the overtime premium required for work performed in excess of eight hours in a workday, 40 hours in a workweek, or for the first 8 hours worked on the seventh consecutive day. Depending on the number of hours worked each day of the workweek, a double-time premium for work performed may be required.
  2. Employers are not required to provide paid time off for holidays. An employer may be closed for the holidays and not pay employees or choose to operate even on days such as Thanksgiving.  
  3. Paid time off for holidays does not count toward the overtime requirement. If an employer elects to provide paid holidays off, the hours paid but not worked do not count toward overtime.
  4. If payday falls on a holiday, the employer may pay on the next business day after the holiday. Under California law, employers may pay on the next business day after the holiday. The California Government Code identifies the following holidays:
  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Abraham Lincoln’s Birthday
  • Third Monday in February — George Washington’s Birthday
  • March 31 – Cesar Chaves Day
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • September 9 – Admission Day
  • Fourth Friday in September – Indigenous Peoples’ Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • Fourth Thursday in November — Thanksgiving Day
  • December 25 — Christmas
  • Other days appointed by the governor for a public fast, thanksgiving, or holiday

If you have questions about handling employee holiday pay, or related issues contact a Jackson Lewis attorney to discuss.

In October, Governor Newsom signed Senate Bill (SB) 476, which requires food facility employers to pay an employee for any cost associated with the employee obtaining a food handler card, considering the time it takes for the employee to complete the training and certification program to be compensable as “hours worked.”

Under the Health and Safety Code, a food handler is required to obtain a food handler card within 30 days of their date of hire and maintain a valid card for the duration of their employment.  A food handler is defined as an individual who is involved in the preparation, storage, or service of food in a food facility, other than an individual holding a valid food safety certificate or an individual involved in the preparation, storage, or service of food in a temporary food facility.

To obtain a food handler card, an individual must complete a food handler training course and examination that meets certain requirements.

Under SB 476, employers are required to consider the time that it takes for an employee to complete the training and examination as compensable “hours worked.” Moreover, employers must reimburse for necessary expenditures.

SB 476 requires that employees are relieved of all other work duties while taking the training course and examination.

Finally, under the new legislation, an employer is prohibited from conditioning employment on the applicant or employee having an existing food handler card.

These changes take effect January 1, 2024.

If you have questions about SB 476 or related issues contact a Jackson Lewis attorney to discuss.

California’s 2023 legislative session ended on October 14, 2023, with a slew of new bills affecting employers. Governor Gavin Newsom signed more than 30 employment-related bills.

Highlights of the new laws affecting employers in California are summarized below. Most of the laws take effect January 1, 2024, unless otherwise indicated.

Read the Full Article on Jackson Lewis’ Legal Updates.