Most of California is currently subject to the state’s Regional Stay at Home Order and  COVID-19 cases surging around the state. Meanwhile, federal and state supplemental paid sick leave benefits available to employees in California will soon expire.

The Families First Coronavirus Response Act (“FFCRA”), which includes paid sick leave obligations for employers with less than 500 employees, is set to expire on December 31, 2020. California’s recently enacted statewide supplemental paid sick leave law will also expire on  December 31. As of now, neither has been extended beyond the current expiration date.

Some local governments, however, have taken steps to continue their local supplemental sick leave ordinances into the coming year:

Other localities, such as the City of Los Angeles and the City of Long Beach, have ordinances that already continue into 2021.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

At the beginning of December, the CDC issued new guidance regarding the length of quarantine. Although the new CDC guidance was not definitive in shortening the quarantine period, it did provide options to local health departments to shorten the quarantine period, if they determined it appropriate.

On December 14th, the California Department of Public Health (CDPH) released its own COVID-19 Quarantine Guidance. The CDPH follows suggestions from the CDC in reducing the length of quarantine for asymptomatic individuals who have been in close contact with an infected person (within 6 feet for a cumulative total of 15 minutes or more). These individuals may discontinue quarantine after Day 10 with or without testing. Governor Newsom has also issued an Executive Order, N-84-20, which limits required quarantine periods under Cal OSHA’s COVID-19 Emergency Temporary Standard to either the CDPH guidance or local public health standards, whichever is longer.

Under the CDPH guidance, individuals who have been exposed must still wear face coverings at all times, maintain social distance of at least 6 feet from others, and practice other safety measures beyond the shortened quarantine period.

The CDPH guidance includes a special exception for healthcare, emergency response, and social service workers who work in child welfare or assisted living facilities in cases of “critical staffing shortages” – a term not defined in the guidance.  In those circumstances, asymptomatic employees who have tested negative after being tested on the fifth day after exposure may return to work after quarantining or seven days.  These employees should use surgical face masks at all times during work and continue to use face coverings when outside their home through Day 14 of the last exposure.

Although the state standards now allow for shorter quarantine periods, not all local jurisdictions have followed suit. While some, such as the County of Santa Clara, have also reduced the length of recommended quarantine periods, others continue to require 14 days of quarantine after exposure. In those jurisdictions, the longer quarantine requirement will apply for Cal OSHA purposes, as well.

The new CDPH guidelines do not change the travel advisory it issued in November. That advisory recommends that all persons, including California residents, who arrive in or return to California after out-of-state travel should quarantine for 14 days, whether or not they have been exposed to COVID-19.

Jackson Lewis continues to monitor issues pertaining to COVID-19 and employers. If you have questions about state or local guidance pertaining to COVID-19 contact a Jackson Lewis attorney to discuss.

While the California courts were relatively quiet during 2020, the California Supreme Court has a few heavy-hitting employment cases pending for 2021.

Here are the cases employers should be watching in the new year and why.

Donohue v. AMN Services, LLC

AMN Services (“AMN”) used a computer-based timekeeping system, which required employees such as Plaintiff to click on an icon to open the program each day and would “punch in and out” for the start of the day, meal periods, and end of the day. The timekeeping system recorded employee’s time in 10-minute increments. AMN then rounded this time to the nearest hundredth.

Plaintiff did not have predetermined meal and rest breaks, but AMN had a written policy that employees were to take meal and rest breaks under California law. The timekeeping software provided a drop-down question where employees explain why they did not record a compliant meal period, and if the employees indicated they voluntarily chose not to take a 30-minute meal period, no penalty was paid.

The trial court found there was no evidence of a uniform policy or practice to deny meal periods, and Plaintiff did not plead in the complaint that the rounding practice resulted in a meal period violation.

At the Court of Appeal level, Plaintiff argued that rounding may never be applied to meal period time punches. The Court of Appeal reasoned that the standard outlined in prior California court decisions about rounding also applies to meal periods, and the court need only consider how often a policy results in rounding up and down, not the number of meal-period violations that are assessed or avoided.

Why Employers Should Watch This Case

If the California Supreme Court agrees with the Court of Appeal it would further support that rounding policies in California are generally acceptable and could set forth better guidance on how employers can implement rounding policies, including for meal periods.

Grande v. Eisenhower Medical Center

FlexCare, LLC (“FlexCare”), a temporary staffing agency, assigned Plaintiff to work as a nurse at Eisenhower Medical Center (“Eisenhower”). According to Plaintiff, during her employment at Eisenhower, FlexCare and Eisenhower failed to ensure she received the required meal and rest periods, wages for certain periods she worked, and overtime wages.

Plaintiff filed a class-action lawsuit on behalf of FlexCare employees assigned to hospitals throughout California. Plaintiff’s claims were based solely on her work on an assignment at Eisenhower. FlexCare settled with the class, including the Plaintiff. Plaintiff executed a release of claims, and the trial court entered a judgment incorporating the settlement agreement.

About a year later, Plaintiff brought a second-class action alleging the same labor law violations, this time against Eisenhower, who was not a party to the previous lawsuit. FlexCare intervened in the action asserting Plaintiff could not bring the separate lawsuit against Eisenhower because she had settled her claims in the prior class action.

The trial court held a trial limited to questions as to the propriety of the lawsuit and ruled Eisenhower was not a released party under the settlement agreement and could not avail itself of the doctrine of res judicata because the hospital was neither a party to the prior litigation nor in privity with FlexCare.

The Court of Appeals agreed with the trial court.

Why Employers Should Watch This Case

In particular, this case would affect staffing agency employers who may want to consider how they settle claims if their “clients” are not also named to avoid duplicative litigation which they may also have to pay for through indemnity clauses.

Ferra v. Loews Hollywood

Plaintiff alleged Lowes improperly calculated her premium payment when Loews allegedly failed to provide her statutorily required meal and/or rest breaks, and underpaid Plaintiff by allegedly “shaving or rounding time from hours worked by” Plaintiff.

The parties stipulated that Plaintiff worked as a bartender, and Loews paid (and continued to pay) meal and rest period premiums at Plaintiff’s base rate of compensation (her hourly wage), without including an additional amount for incentive compensation, such as nondiscretionary bonuses.

The trial court concluded the terms “regular rate of compensation” and “regular rate of pay” are not interchangeable, and rest and meal period premiums under the California labor code need only be paid at an employee’s base hourly rate.

The Court of Appeal agreed with the trial court holding that when paying meal and rest period premiums, the employer properly calculated the regular rate of compensation as one hour at the employee’s base pay.

Why Employers Should Watch This Case

Should the Supreme Court disagree with the lower courts, the case would mean the complicated calculations required for determining the regular rate of pay for overtime would also be applied to meal and rest penalties and would increase the amount of such penalties based on other compensation, such as non-discretionary bonuses paid to employees.

Naranjo v. Spectrum Security Services

This case involves a class of security guards who alleged meal break violations and sought premium wages, waiting time penalties, inaccurate pay stub penalties, and attorney’s fees.

The Court of Appeal held that unpaid premium wages for meal period violations did not entitle employees to pay stub penalties or waiting time penalties.

Why Employers Should Watch This Case

This case will resolve a long-standing debate on whether waiting time penalties are recoverable for meal and rest period violations. If the California Supreme Court disagrees with the lower courts, it will increase potential penalties for California meal and rest period violations, as violations could be compounded by alleged pay stub penalties and waiting time penalties.

Vazquez v. Jan-Pro Franchising International

Jan-Pro International Franchising, Inc. (“Jan-Pro”) licenses a system for marketing cleaning services to “regional master franchisees,” in multiple countries, including the United States. Regional master franchisees purchase franchises for exclusive operations in a given regional area.

Regional master franchisees, in turn, are franchisors to “unit franchisees.” Jan-Pro is not a party to any contract with unit franchisees. Jan-Pro contracts with the master franchisors, who then contract with unit franchisees. Unit franchisees may hire their own employees and may act in individual or corporate capacities.

Plaintiffs are former unit franchisees who alleged Jan-Pro developed the three-tier model in order to misclassify janitors as independent contractors.

The question before the California Supreme Court is whether Dynamex v. Superior Court (Dynamex), which set forth the ABC test for classification of independent contractors, can be applied retroactively.

Why Employers Should Watch This Case

If Dynamex is found to apply retroactively, misclassification claims could potentially be reopened and reach back to before the holding of Dynamex in 2018.

Ducksworth v. Tri-Modal Distribution Services

Plaintiffs in this action were long-time customer service representatives at Tri-Modal Distribution Services (“Tri-Modal”). Neither plaintiff was promoted, though other customer service representatives were promoted. Plaintiffs alleged their lack of promotion was due to discrimination against African Americans and filed suit against Tri-Modal as well as two staffing agencies, Scotts Labor Leasing Company and Pacific Leasing for discrimination.

The staffing agencies were granted summary judgment because they were not involved in Tri-Modal’s decision making about whom to promote.

The Court of Appeal upheld summary judgment finding that the staffing agencies were entirely uninvolved with the promotion decisions, and therefore had no liability for discrimination claims for failure to promote.

Why Employers Should Watch This Case

Should the California Supreme Court disagree with the lower courts, the result could expand liability for discrimination claims. In particular, potential joint employers, such as staffing agencies, who are typically uninvolved in the day-to-day employment decisions, could encounter increased claims and alleged damages.

Jackson Lewis will continue to track these and other employment law court matters. If you have questions about how these cases may affect your business, contact a Jackson Lewis attorney to discuss.

On December 3, 2020, the state issued a new regional stay-at-home order which requires additional industries to close or scale back operations based on intensive care unit (ICU) capacity in the region. The order separates the state into five separate regions, as opposed to the county-by-county approach used in previous regulations. The Bay Area region elected to preemptively issue orders prior to reaching the state threshold for ICU capacity. The Southern California and San Joaquin Valley regions encompassing 11 counties fell below the state-mandated threshold of less than 15% capacity in ICU beds shortly after the enactment of the state order. More regions are on the cusp.

With industries having to close or reduce capacity, here are some considerations employers should keep in mind.

Supplemental Paid Leaves

Statewide supplemental paid sick leave remains in effect until December 31, 2020. Employers should note that the requirements do not cover all situations that may arise from the current shutdown, including potential childcare and school shutdowns. However, many of the local ordinances providing supplemental paid sick leave do provide paid leave for childcare-related issues. As such, employers should ensure they know which state and local ordinances apply to their employees.

Right of Reemployment Requirements

Unfortunately, many employers may need to lay off employees due to the newest shelter in place orders without knowing how or when they can bring employees back. However, local reemployment ordinances require the employer to comply with additional requirements, including recently enacted record retention requirements applicable to some layoffs. For example, San Francisco’s ordinance requires employers to provide notice to the City within 30 days after laying off 10 or more employees within the City or County of San Francisco. Moreover, some of the ordinances require employers to provide laid-off employees with notice of their right of reemployment.

Remote Worker Obligations

As some employees may be returning to remote work, employers should ensure they are familiar with business reimbursement requirements under California law. Employers who have brought employees back to the worksite since the start of the Covid-19 pandemic should review their remote work and telework policies, especially if there were issues during previous temporary remote work periods. Employers should also attempt to accommodate reasonable requests to work remotely to ensure they do not discriminate against employees directly affected by the virus or with a “family care hardship,” as called for in San Francisco’s Paid Sick Leave Ordinance.

For additional considerations, review Jackson Lewis’s post from July, What Businesses Can Do to Prepare for Further Closure Orders, or contact a Jackson Lewis attorney to discuss your questions or concerns.

The deadline for employers to comply with California’s pay data reporting requirement (Senate Bill 973) and submit pay data to the Department of Fair Employment and Housing (DFEH) is March 31, 2021.

The DFEH has launched an information page that provides needed clarity on certain obligations and has issued additional guidance on the pay data report’s contents — largely confirming certain assumptions and clarifying other requirements.

Read the full article on Jackson Lewis Pay Equity Advisor Blog.

Shortly before Thanksgiving, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that creates an emergency temporary standard specific to potential workplace COVID-19 exposures (“Rule”). The Rule was quietly approved by the Office of Administrative Law without detailed analysis on November 30th and went into effect upon approval. While this gave little time for employers to come into compliance with the new requirements, the Division of Occupational Safety & Health (“Cal OSHA”) has maintained that many of the requirements are not entirely new and align with guidance previously issued on measures to address COVID-19 hazards in connection with employers’ Injury Illness and Prevention Program. Cal OSHA has also informally conveyed that the agency will work with employers to achieve compliance with the Rule, particularly in situations where employers are making a diligent effort to comply.

At a high level, the Rule imposes certain minimum requirements on covered California workplaces:

  1. Implementation of written COVID-19 Prevention Program
  2. Implementation of COVID-19 Preventive Measures
  3. Reporting and Recordkeeping Requirements
  4. Worker exclusion when employees have COVID-19 or have been exposed
  5. Management of COVID-19 infections and outbreaks
  6. Investigation of COVID-19 cases and outbreaks

Note that some workplaces, such as those subject to Cal OSHA’s Aerosol Transmissible Disease Standard (e.g., healthcare facilities), are exempt from the Rule’s requirements.

To help employers comply with the Rule, Cal OSHA released a Frequently Asked Questions page on December 1st that details their expectations for how employers can comply with the new regulations. The page provides insight into many of the new requirements, including components of a written COVID-19 Prevention Program, systems to communicate with employees on COVID-19 matters, dealing with COVID-19 hazards in the workplace, and measures for managing a COVID-19 case.

Several areas of note in the FAQs, are Cal OSHA’s guidance on new requirements for testing, notifications, and employee training. For testing, Cal OSHA specifically states that employers should “offer testing to potentially exposed employees at no cost and during working hours” as well as inform employees of testing resources. In addition, employers must “provide periodic” COVID-19 testing for employees in an “exposed workplace” during an outbreak or major outbreak. To comply with these requirements, employers may need to vet and line up a third party testing resource. Cal OSHA’s FAQ also indicates that employers must notify “employees of any potential exposures within one business day,” creating a notification obligation that is distinct from the notification required following the passage of Assembly Bill 685.

In addition to the FAQ, Cal OSHA also released a fact sheet summarizing the new requirements for employers, a Model COVID-19 Prevention Plan, and guidance communicating the agency will release further resources for employers to use to comply with the Rule, such as training resources. While the Model Plan provides substantial detail, employers should be aware that the Rule provides a “performance-based” requirement, so the Plan needs to be carefully tailored to address business, industry, and operational needs. Because of the layers of regulatory requirements applicable to COVID-19 issues, employers should also ensure their plan adheres to all federal and state laws, including relevant state and local health department orders and requirements.

If you have questions, would like additional information, or need assistance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

On December 1, Judge Jeffrey S. White granted the plaintiffs’ request to set aside two separate rules issued by the Trump Administration that would have drastically undermined the ability of employers to utilize both the H-1B and PERM visa programs. In Chamber of Commerce of the United States v. United States Department of Homeland Security, Judge White held that the Administration violated the Administrative Procedures Act (APA) when it enacted two rules: the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Rule (the “Wage Rule”) and the Strengthening of the H-1B Nonimmigrant Visa Classification Rule (the “H-1B Visa Classification Rule”). Both were issued as Interim Final Rules and without the usual Notice and Comment required by the APA.

Read the full article on Jackson Lewis Immigration Blog.

On November 19, 2020, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that, in effect, creates an emergency temporary standard specific to potential workplace coronavirus (“COVID-19”) exposures (“COVID-19 Prevention Rule” or “Rule”). While not the first state to adopt an emergency temporary standard (see our earlier posts on new requirements in MichiganOregon, and Virginia), California’s COVID-19 Prevention Rule is unique in that it is performance based and adds to the host of requirements imposed by the state’s public health departments. As a result, California employers need to ensure their efforts to manage COVID-19 heed both the new COVID-19 Prevention Rule and state and local public health department orders. The state’s Division of Occupational Safety & Health (“Cal OSHA”) will administer and enforce the COVID-19 Prevention Rule, which is codified in Section 3205 of California’s Code of Regulations, and goes into effect on January 1, 2021.

Read the full post on Jackson Lewis OSHA Law Blog.

Only a week ago Governor Newsom “pulled the brake” on California’s reopening, including issuing a travel advisory. However, as the number of COVID-19 cases continues to rise, the California Department of Public Health (“the Department”) has issued a limited stay-at-home order that will go into effect Saturday, November 21, 2020, at 10:00 p.m. PST. The Department also issued a Questions and Answers page regarding the limited stay-at-home order.

The order applies to counties in California’s Purple Tier, the designation for those areas with the most widespread transmission of COVID-19.  Many of the most populous counties including Los Angeles, San Diego, and Orange are currently included in the Purple Tier.

Under the order, individuals in these counties must stay home between the hours of 10 p.m. and 5 a.m. except for those activities associated with the operation, maintenance, or usage of critical infrastructure or required by law.  Members of the same household are permitted to leave their residence, lodging, or temporary accommodation, as long as they do not interact with anyone outside their household. A business that is not deemed essential must also close between the hours of 10 p.m. and 5 a.m.

If a county moves to the Purple Tier after November 21, 2020, the order will apply to that county at 10:00 p.m. PST of the second day following such move.  The order is set to expire December 21, 2020, but may be extended as deemed necessary.

Jackson Lewis is monitoring COVID-19 developments that affect employers. If you have questions about this or other COVID-19 related orders, contact a Jackson Lewis attorney to discuss.

California’s stair-step climb to a $15-dollar minimum wage continues. Effective January 1, 2021, the minimum wage for employers with 25 employees or less will increase to $13.00 per hour, and for employers with 26 or more employees, the minimum wage will increase to $14.00 per hour. Employers must remember this increase also affects minimum salary requirements for exempt employees.

While some local minimum wages increase mid-year, many others also increase on January 1 at the same time the State’s increases take effect.

For example, in the cities of Sonoma and Hayward, the minimum wage for employers with 25 employees or less will increase to $14.00 per hour, and for employers with 26 or more employees the minimum wage will increase to $15.00 per hour, effective January 1, 2021.

Likewise, the city of Novato’s minimum wage for employees with 25 employees or less will increase to $14.00 per hour, and for employers with 26 to 99 employees, the minimum wage will increase to $15.00 per hour as of January 1.  For employers with 100 employees or more, the minimum wage in the city of Novato will increase to $15.24 per hour, effective January 1, 2021.

The following local minimum wages go into effect on January 1, 2021, regardless of employer size:

City

Required Minimum Wage as of January 1, 2021, Irrespective of Employer Size

 

Belmont $15.90 per hour
Cupertino $15.65 per hour
Daly City $15.00 per hour
El Cerrito $15.61 per hour
Half Moon Bay $15.00 per hour
Los Altos $15.65 per hour
Menlo Park $15.25 per hour
Oakland $14.36 per hour
Petaluma $15.20 per hour
Palo Alto $15.65 per hour
Redwood City $15.62 per hour
Richmond $15.21 per hour
San Carlos $15.24 per hour
San Diego $14.00 per hour
San Jose $15.45 per hour
San Mateo $15.62 per hour
Santa Clara $15.65 per hour
Santa Rosa $15.20 per hour
South San Francisco $15.24 per hour
Sunnyvale $16.30 per hour

Employers must also ensure their minimum wage postings are updated appropriately to reflect state and local increases.

Jackson Lewis will continue to track minimum wage increases and changes in California and nationally. If you have questions about payment of wages, reach out to a Jackson Lewis attorney to discuss.