California employers take note: the non-emergency version of the Cal/OSHA COVID-19 Prevention regulations are now in effect.

At the end of 2022, the Cal/OSHA Standards Board voted to adopt the COVID-19 Prevention non-emergency regulations to replace the Emergency Temporary Standard(ETS).

On February 3, 2023, the California Office of Administrative Law approved the non-emergency standard. Though not titled a temporary standard, the non-emergency standard is set to sunset two years from its effective date, with the exception of the recordkeeping requirements which will expire in three years.

In conjunction with the approval, Cal/OSHA published both a Frequently Asked Question Page (FAQ) and a COVID-19 Model Prevention Program.

The FAQ covers the following:

  • Scope of Coverage
  • COVID-19 Prevention Addressed in the Injury and Illness Prevention Program
  • Determining Measures to Prevent COVID-19 Transmission; Identifying and Correcting COVID-19 Hazards
  • Face Coverings and Personal Protective Equipment
  • Ventilation
  • Vaccines
  • Training
  • Addressing COVID-19 Cases in the Workplace
  • Testing
  • Outbreaks
  • Recordkeeping and Reporting
  • CDPH Isolation and Quarantine

The FAQs provide some useful information as employers pivot from the ETS requirements.

Hybrid/Remote Employees

The non-emergency regulations apply only when employees work at the workplace or are exposed at work, and not when they work from home. The regulations do not apply to employees who are assigned to telework and who choose to work somewhere other than their home e.g. a hotel or a rental property unless arranged by the employer as employer-provided housing. Additionally, these regulations do not apply to employees who are covered by the Aerosol Transmissible Diseases regulation.

Close Contact Definition

The non-emergency regulations continue to use the revised definition of “close contact” set forth by the California Department of Public Health (CDPH) in October 2022.

  1. In indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during a COVID-19 case’s infectious period.
  2. In large indoor spaces greater than 400,000 cubic feet per floor, a close contact is defined as being within 6 feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period.
  3. Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor airspaces.

The FAQs also provide a formula for determining the cubic feet of an indoor space.

Face Coverings and Personal Protective Equipment

Under the non-emergency regulations, employers must provide face coverings and ensure they are worn when required by CDPH.

Additionally, all employers must provide and ensure face coverings are worn during outbreaks at the workplace, as well as ensure the use of face coverings when employees return to work after having COVID-19 or after a close contact.

Testing Requirements

Under the non-emergency regulation, employers must offer testing at no cost and during paid time:

  • To employees who had a close contact at work, with an exception for symptom-free employees who recently recovered from COVID-19.
  • During an outbreak, to all employees within an exposed group, at least once a week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19.
  • During a major outbreak, twice per week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19 (returned cases).

Benefits to Excluded Workers

The non-emergency regulation no longer includes an exclusion pay requirement. Though the Standards Board discussed in December holding a vote to amend the regulations to include exclusion pay, that has not proceeded to date and was not indicated for the Board’s upcoming meeting on February 16th. The FAQs indicate that employees who test positive may be eligible for other benefits such as state disability.

Jackson Lewis will continue to track COVID-19 regulations and requirements into the endemic phase. If you have questions about the Cal/OSHA COVID-19 Standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

On January 20, 2023, San Francisco approved the Military Leave Pay Protection Act, which mandates that certain employers must provide paid leave for employees taking leave for military duty.

The ordinance takes effect 30 days after passage on February 19, 2023.

Covered Employers

The ordinance applies to employers who employ 100 or more employees, regardless of location, but excludes the City of San Francisco as well as other governmental employers.

Covered Employees

The ordinance applies to any employee of a covered employer who (1) works within the geographic boundaries of San Francisco, including part-time and temporary employees; and (2) is a member of the reserve corps of the United States Armed Forces, National Guard, or other uniformed service organization of the United States.

Supplemental Compensation

Under the ordinance, while on covered military leave, employers must pay covered employees the difference between the amount of the employee’s gross military pay and the gross pay the employer would have paid the employee had the employee worked their regular work schedule. When calculating the employee’s gross pay, covered employers are not required to include overtime unless the overtime is scheduled as part of the employee’s regular work schedule.

Covered employees may take the leave in daily increments for one or more days at a time, for up to 30 days in any calendar year.

Limits on Supplemental Compensation

The ordinance does include limits on the leave taken, including the following:

  1. The supplemental compensation the employer is required to pay the employee can be offset by amounts paid under any other law or employer military leave policy so that the employee does not receive excessive payments for the leave time taken.
  2. If an employee is able to return to work but does not do so within 60 days of release from military duty, the employer may treat any supplemental compensation paid to the employee during the employee’s military leave as a loan to the employee to be repaid, with interest, to the employer under the terms of the ordinance.

Collective Bargaining Waiver

The ordinance does not apply to employees covered by a bona fide collective bargaining agreement if the collective bargaining agreement expressly waives the ordinance’s requirements.

If you have questions regarding the San Francisco Military Leave Pay Protection Act or related issues, contact a Jackson Lewis attorney to discuss.

On January 24, 2023, the California Secretary of State completed its verification process and qualified a referendum challenging Assembly Bill (AB) 257, also known as the FAST Recovery Act for the November 2024 ballot. In the meantime, the law will not take effect unless it is approved by voters in the November 2024 election.

Governor Newsom signed AB 257 into law in September 2022. If it ultimately goes into effect, it will establish a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials within the Department of Industrial Relations that will set industry-wide standards for wages, working hours, and other working conditions related to the health, and safety of fast food workers.

At the end of 2022, a coalition of California small business owners, restaurateurs, franchisees, and related entities filed suit to block enforcement of the law pending the Secretary of State’s determination on whether the referendum attempt would qualify. Earlier this month, the coalition was successful in obtaining a preliminary injunction against enforcement.  

The FAST Recovery Act referendum will join other employment-related ballot measures in 2024, including one seeking to reform California’s Private Attorney General Act (PAGA) and another seeking to increase the state minimum wage.

Jackson Lewis will continue to track changes in state legislation affecting employers. If you have questions about the FAST Recovery Act or related issues contact a Jackson Lewis attorney to discuss.

California employers are required to post their annual summary of work-related injuries and illnesses, in a visible and easily accessible area at every worksite from February 1st through April 30th. Cal/OSHA’s Form 300A must be used for this posting.

Employers can find an overview regarding completing both the log (Form 300) and the annual summary (Form 300A) on Cal/OSHA’s Recordkeeping Overview page.

Cal/OSHA requires employers to record work-related fatalities, injuries, and illnesses. To be recordable under Cal/OSHA’s regulations, an injury or illness must be work-related and result in one of the following:

  • Death;
  • Days away from work;
  • Restricted work or transfer to another job;
  • Medical treatment beyond first aid;
  • Loss of consciousness; or
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

While Cal/OSHA will soon be moving to a slightly less restrictive Non-Emergency COVID-19 Standard for workplace health and safety requirements, any work-related COVID-19 fatality or illness that falls under the above criteria must be recorded on an employer’s Form 300, 300A, and 301, or equivalent forms.

Certain employers are required to annually electronically submit Form 300A data to Cal/OSHA by March 2nd. Covered employers are those that meet one of the following requirements:

  • Has 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations; or
  • Has 20 to 249 employees in the specified industries listed including Agriculture, Manufacturing, and Grocery Stores. For a full list of covered industries, employers can review Appendix H.

Information on how to make the electronic submission is available on the federal OSHA’s Injury Tracking Application website.

If you have questions about preparing your annual summary or need assistance with compliance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Among the many challenges employers face in enforcing employment arbitration agreements in California are employees arguing that they are not bound by the agreement because they do not recall signing it, even when the agreement contains their signature.  A California Court of Appeal decision recently shot down this argument, holding that an employee cannot evade an arbitration agreement with a handwritten signature by simply saying, “I don’t recall.”       

The Case

In Iyere v. Wise Auto Group, the plaintiffs were two sales consultants and a sales manager.  After the plaintiffs filed suit against their former employer, Wise Auto Group (Wise) filed a motion to compel arbitration that included copies of the arbitration agreement with handwritten signatures of each plaintiff.

To oppose the motion, the plaintiffs submitted declarations stating that they received a large stack of documents on their first day of work, they were told to sign the documents quickly, and they signed the documents as instructed without ever receiving a copy of the signed documents back.  The plaintiffs also specifically asserted in their declarations that they “do not recall ever reading or signing any document entitled Binding Arbitration Agreement or Employment Acknowledgment, [they] do not know how [their] signature was placed on [either document],” and they would not have signed either document had they understood that the documents waived their right to sue Wise in court.

The Court of Appeal did not let the plaintiffs off the hook.  The Court of Appeal found that the plaintiffs had not submitted admissible evidence creating a dispute as to the authenticity of their signatures on the arbitration agreements. The Court noted that while the plaintiffs declared they did not “recall” reading or signing the arbitration agreement, this was still consistent with the rest of their declarations where they acknowledged that they quickly signed a large stack of documents on their first day of work.  The Court concluded that absent evidence that their signatures were forged or otherwise inauthentic, the plaintiffs failed to show that the arbitration agreements were not authentic and unenforceable.

Notably, in reaching its conclusion, the Court of Appeal disagreed with the comparison of the instant case with two cases involving electronic signatures, stating that “[w]hile handwritten and electronic signatures once authenticated have the same legal effect, there is a considerable difference between the evidence needed to authenticate the two.”  The Court explained that a party that is not able to confirm their handwritten signature is inauthentic or forged in an arbitration agreement cannot create a factual dispute regarding the authenticity of the signature by simply stating that they cannot recall signing the agreement.

Further, the Court of Appeal held that even if an employee’s assertion that they do not recall signing the arbitration agreement can shift the burden back to the employer to authenticate the agreement, Wise satisfied its burden by producing a declaration from its custodian of records identifying the agreement. The Court of Appeal rejected a common objection made by plaintiffs’ attorneys to such evidence based on the argument that a custodian of records lacks personal knowledge of the agreement since they were not personally present when the agreement was signed.  The Court succinctly explained that a “custodian of a document need not have been present or employed when the document was created or signed to authenticate a document in a company’s files.”

Key Takeaway

The Court of Appeals decision may aid employers seeking to enforce arbitration agreements by thwarting employees who attempt to dodge their arbitration agreements by submitting a declaration that merely states, “I do not recall signing,” especially where the arbitration agreement contains the employee’s handwritten signature.   

If you have questions about employment arbitration agreements or related issues, please contact a Jackson Lewis attorney to discuss.

When Senate Bill (SB) 1162 was signed in 2022, much of the focus was on the new pay transparency requirements. However, the bill also amended pay data reporting requirements in California. Under the amendments covered employers would need to submit separate pay data reports for employees hired through labor contractors. In addition, reporting would need to include the median and mean hourly rate for each combination of race, ethnicity, and sex for each job category for both traditional employees and those hired through labor contractors. But that was as much detail as the initial bill provided. 

At the end of 2022, the Labor Commissioner’s Office (DLSE) published FAQs for the pay transparency portion of SB 1162. The Civil Rights Department (CRD) has now published updated FAQs for Pay Data Reporting.

The updated Pay Data Reporting FAQs provide clarity that many employers were waiting for, including the following new information:

  •  Employers must submit a separate pay data report for workers hired through a labor contractor when the work performed is within the client employer’s usual course of business. This aligns with the reporting obligation to mirror the state’s “ABC test” to evaluate if a potential independent contractor is an employee under California law..
  • Confirmation of the Snapshot Period for “employees hired through labor contractors.” As with payroll employees, the “Snapshot Period” for labor contractor employees is a single pay period between October 1 and December 31 of the Reporting Year.  There was uncertainty about whether this period would be broader due to the often transitory nature of labor contractor employees. 
  • Mechanics of reporting “employees hired through labor contractors.”  Employers must list the number of labor contractor employees (and the aggregate number of hours they worked in 2022) by establishment, job category, race/ethnicity, sex, and pay band. 
  • Methods of calculating the median and mean hourly wages.  The calculation is based on the employee’s total hours worked and total pay received in 2022—it does not use the employee’s hourly wage in the employer’s Human Resource Information System (HRIS) data.
  • The pay data that labor contractors must provide to employers for “employees hired through labor contractors.”  Employers are expected to only report the portion of a labor contractor employee’s annual wages and hours worked attributable to work performed for that employer.  It is the labor contractors’ burden to divide this pay and hours worked information for the employer. 
  • Obligation to provide race/ethnicity and sex data for “employees hired through labor contractors.”  While the legislation clearly provides that labor contractors must provide employers with the necessary pay data for the labor contractor employee report, there was ambiguity on whether this would include demographic information.  According to the Pay Data FAQs, the obligation to collect and report on labor contractor employee race/ethnicity and sex data seems to fall on the employer.  Although, the FAQs make clear that the Civil Rights Division is permitting employers to report unknown race/ethnicity or sex for labor contractor employees when that information is unknown and not reasonably obtainable before the filing deadline—but this leeway is not expected in future years. 

The FAQs also include other information related to employers covered by the pay data reporting requirements and respond to other questions related to how to report that was published prior to the amendments to the data reporting requirements.

In addition to the FAQs, the CRD’s pay data reporting page includes a user guide for the portal, excel templates, and related resources for employers, and additional pay data reporting resources are expected by February 1, 2023. 

If you need assistance with California Pay Data Reporting or related issues, contact a Jackson Lewis attorney to discuss.

While the Secretary of State continued to count signatures to determine if a potential referendum challenging the FAST Recovery Act (AB 257) will make it on the ballot, the Sacramento Superior Court has issued a preliminary injunction prohibiting the implementation or enforcement of AB 257.  The injunction will remain in effect unless and until either: 1) county election officials and the Secretary of State determine that the referendum petition failed to qualify for the ballot; or 2) a majority of voters defeat the referendum and approve the FAST Recovery Act in the 2024 election.

The preliminary injunction, which followed a temporary restraining order granted on December 30, 2022, is a victory for Save Local Restaurants, a coalition of California small business owners, restaurateurs, franchisees, and related entities that brought the petition to enjoin enforcement of the FAST Recovery Act.  

Governor Newsom signed AB 257 into law in September 2022. If it ultimately goes into effect, it will establish a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials within the Department of Industrial Relations that will set industry-wide standards for wages, working hours, and other working conditions related to the health, and safety of fast food workers.

Jackson Lewis will continue to track developments related to the FAST Recovery Act. If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

The California Employment Development Department (EDD) has released the Voluntary Plan Employee Contribution and Benefit Rates for 2023.

Employers with employees located in California are generally required to withhold and send state disability contributions to the EDD.

The 2023 rates are as follows:

“Employee Contribution Rate”0.9%
“Taxable Wage Ceiling” (per employee per year)$153,164.00
“Maximum Contribution” (per employee per year)$1,378.48
“Maximum Weekly Benefit Amount” (WBA)$1,620.00
“Maximum Benefit Amount” (WBA X 52 weeks)$84,240.00
“Assessment Rate” (this figure is the product obtained by multiplying the worker contribution rate by 14% or 0.9 X 14%)0.126%

The Employee Contribution Rate is the percentage withheld from the wages of employees who are covered by Disability Insurance (DI) and Paid Family Leave (PFL). The Taxable Wage Ceiling is the maximum yearly wage, per employee, that is subject to DI and PFL withholding. The Maximum Contribution is the maximum amount withheld from the yearly wages of an employee who is covered by state disability and who annually earns an amount equal to or exceeding the Taxable Wage Ceiling.

The change in contribution rates and the Maximum Weekly Benefit Amount are relevant to employers who must comply with San Francisco’s Paid Parental Leave Ordinance (PPLO).  The city of San Francisco requires most employers with 20 or more employees worldwide to supplement PFL benefits received by employees to bond with a new child.  During the PFL leave period, the PPLO supplemental compensation provided by an employer, added to the PFL wage replacement benefit received from the EDD, must equal 100% of the employee’s gross weekly wage, subject to a cap.  For 2023, the PPLO cap will be $2,700 per week.

The Assessment Rate is relevant to employers that maintain a state-approved voluntary plan (VP), which is a disability insurance plan that an employer can offer to its California employees as a legal alternative to mandatory DI and PFL.  The Assessment Rate is the amount that an employer pays to the EDD as an administrative expense for maintaining a voluntary plan.

Jackson Lewis continually monitors governmental changes affecting California employers. If you have questions regarding Paid Family Leave, the Paid Parental Leave Ordinance or other wage replacement requirements contact a Jackson Lewis attorney to discuss.

While the Secretary of State continued to count signatures to determine if a  potential referendum on the FAST Recovery Act (the Act) will make it on the ballot, a lawsuit was filed by a coalition of California small business owners, restaurateurs, franchisees, and related entities seeking to enjoin the enforcement of the Act.  

In September 2022, Governor Newsom signed Assembly Bill (AB) 257, which created the Fast Food Accountability and Standards Recovery Act, or the “FAST Recovery Act.”  This Act establishes a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials within the Department of Industrial Relations that will set industry-wide standards for wages, working hours, and other working conditions related to the health, and safety of fast food workers. Almost immediately, a referendum campaign was launched by the restaurant industry to require the statute to be considered by the voters in the 2024 election.

The lawsuit filed was in response to statements from the state that despite the pending review of signatures to approve the referendum, it intended to enforce the law starting on January 1, 2023. In the Complaint, the coalition calling itself “Save Local Restaurants” stated that the temporary implementation of the Act would not only be unconstitutional based on the state referendum process “but also would create confusion and set a dangerous and absurd precedent.”

On the last court day of the year in 2022, the request for a writ of mandate was heard in Sacramento Superior Court and a temporary order was granted restraining the State from implementing, enforcing, or taking any other action to effectuate the Act. The Court set a further hearing for January 13, 2023, for a hearing on a preliminary injunction of the Act.

Jackson Lewis will continue to track developments related to the FAST Recovery Act. If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.