California’s Department of Fair Employment and Housing (DFEH), the agency charged with administering California’s employment discrimination statute and regulations, has updated its COVID-19 guidance for employers. The updates cover many issues that employers had been struggling with during the pandemic, including:

  • COVID-19 Inquiries and Protective Equipment
  • Employees with COVID-19 Symptoms or Infection
  • Job-Protected Leave
  • Reasonable Accommodations for Employees with Disability/Vulnerable Populations
  • Vaccination

Read the full article on Jackson Lewis Disability, Leave & Health Management Blog.

State legislatures continue to pass laws designed to enhance pay equity and transparency, with the laws of California and Colorado effective in 2021. The California law requires employee pay data reporting by race and gender, and the Colorado law requires robust pay and promotional transparency.

California

Under California’s pay data reporting law (SB 973), most employers with employees in California must file a report of employee pay data by March 31, 2021.

Please find the rest of this article on the Jackson Lewis publications page.

The California Legislature is well into its 2021 Legislative session and February 19 was the last day to introduce new bills. Below is a sampling of some wage and hour bills that employers should have on their radar.

Assembly Bill 1003 – Wage Theft as Grand Theft

AB 1003 would make an employer’s intentional theft of wages, in an aggregate amount greater than $950 punishable as grand theft. AB 1003 would prevent intentional theft of wages that is punished as grand theft from being punished under any other criminal provisions but would authorize wages, benefits, or other compensation to be recovered in a civil action by the employee or the Labor Commissioner.

Assembly Bill 436 – Inspection and copying of wage records

AB 436 would make the deadline to provide the itemized pay statements the same as personnel records to a current or former employee (e.g. thirty calendar days) if both are requested, providing employers additional time than currently permitted to provide wage records under the Labor Code.

Assembly Bill 1028 – Telework Flexibility Act

AB 1028 would allow more flexibility for workers who are teleworking. If passed, AB 1028 would permit remote employees to work longer work hours and not incur overtime, without going through an alternative workweek election. It would also allow employees working from home to opt-out of California’s meal and rest periods’ strict timing requirements.

Assembly Bill 230 – Flexible Work Schedules

Similar to AB 1028, AB 230 would permit nonexempt employees to request an employee-selected flexible work schedule providing a longer workday without incurring overtime similar to an alternative workweek.

The Legislature has also proposed several bills about independent contractors, seeking to exempt classes of workers from the ABC test, first codified in AB 5 in 2019. It is likely if further exemptions are passed, as in 2020, they will be in the form of a consolidated bill like AB 2257.

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Jackson Lewis tracks state and local legislation relevant to employers. If you have questions about these pending bills or other employment law legislation, contact a Jackson Lewis attorney to discuss.

 

Though employers may feel like California just wrapped up its legislative session for 2020, the 2021 legislative session is already in full swing. February 19 was the last day for the proposal of new bills. However, Assembly members and Senators have until September to revise and amend proposed bills before submitting them to the Governor.

It is hard to predict which bills will make their way to Governor Gavin Newsom’s desk in the Fall, however here are bills relating to leave that employers should be watching.

Assembly Bill 85 and Senate Bill 95 – COVID-19 Supplemental Paid Sick Leave

While Statewide supplemental paid sick leave that was passed last year for food sector and other workers expired on December 31, 2020, the legislature has bills pending to resurrect this leave.

These bills would extend the COVID-19 food sector supplemental paid sick leave for food sector workers as well as the COVID-19 supplemental paid sick leave for other covered workers, if those workers are unable to work or telework due to certain reasons related to COVID-19 and meet specified conditions.

Assembly Bill 95 – Bereavement Leave

This bill would require an employer with 25 or more employees to grant an employee up to 10 business days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or registered domestic partner. AB 95 also would require an employer with fewer than 25 employees to grant up to 3 business days of unpaid bereavement leave.

Assembly Bill 995 – Paid Sick Day Accrual and Use

For employers that grant paid sick leave and avoid California state sick leave accrual and carryover requirements, this bill would increase the annual grant allotment from 3 days or 24 hours to 5 days or 40 hours.

Employers that accrue paid sick leave under state law would be required to increase the accrual cap, from 6 days or 48 hours to 10 days or 80 hours. In addition, the bill would raise the employer’s authorized limitation on the employee’s use of carryover sick leave from three days or 24 hours to 5 days or 40 hours.

Assembly Bill 1041 – Expansion of the Definition of Family Member

This bill seeks to expand the definition of “family member” for purposes of leave under the California Family Rights Act and the Healthy Workplaces, Healthy Families Act (paid sick leave) to include other individuals related by blood or whose “close association with the employee is equivalent to a family relationship.”

Assembly Bill 1179 – Employer-Provided Backup Childcare

This bill would require an employer to provide an employee with up to 60 hours of paid backup childcare benefits, to be accrued and used under certain conditions. “Backup childcare” is defined as childcare provided by a qualified backup childcare provider to the employee’s child when the employee’s regular childcare provider cannot be utilized.

This bill would apply to employers with 1,000 or more employees, the state, political subdivisions of the state, and municipalities, including charter cities.

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Jackson Lewis tracks state and local legislation relevant to employers. If you have questions about these pending bills or other employment law legislation, contact a Jackson Lewis attorney to discuss.

It has been three months since California approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). The rushed implementation of Cal OSHA’s ETS, which imposed new and confusing obligations on employers, left many scratching their heads and resulted in several legal challenges to the ETS. For example, some agricultural employers challenged the ETS on grounds that it was ambiguous, imposed overwhelming compliance obligations on employers, and did not consider costs or feasibility.  Other employers continued to raise concerns over requirements in the ETS in public forums, through written questions to Cal OSHA, and directly with their representatives.

Read the full article at Jackson Lewis OSHA Law Blog.

Despite the California Grocers Association lawsuits pending against four cities over hero pay ordinances, more cities and counties have passed or are considering premium pay ordinances for grocery store and similar workers. The laws all vary in both scope and applicability so affected employers with locations throughout California should be mindful of the distinctions. Of the laws passed, some are effective immediately, others are effective after 30 days and in South San Francisco it is retroactive.

Thus far the following localities have passed premium pay ordinances in response to the ongoing COVID-19 pandemic:

Location Covered Employers Amount
Berkeley

Grocery stores that employ 300 or more employees in the state of California

 

$5.00
Coachella

Agricultural operations, grocery stores, restaurants, and retail pharmacy that employee 300 or more employees nationally and 5 employees per location in the city of Coachella

 

$4.00
Irvine

Retail establishments including grocery stores, drug stores, or certain large retail stores that employ 20 or more employees at the location and who employ 500 or more employees nationally.

 

$4.00
Long Beach

Grocery stores that employ 300 or more employees nationally and employ more than 15 employees per location in the City

 

$4.00

County of Los Angeles

(applies to unincorporated areas only)

Grocery stores and employ 300 or more employees nationally and employ more than 10 employees per location.

 

$5.00
Montebello

Grocery stores and drug stores that employee over 300 employees or more nationally and 15 employees per store within the City

 

$4.00
Oakland

Grocery stores that employ 500 or more employees nationally.

 

$5.00
San Jose

Grocery stores that employ 300 or more employees nationally.

 

$3.00
San Leandro

Retail food establishments that employ 300 or more employees nationally.

 

$5.00

County of Santa Clara

(applies to unincorporated areas only)

Grocery and drugstores that either (a) employs 300 or more employees nationally and 15 or more employees in the unincorporated areas of the county, or (b) is a franchise that is associated with a Franchisor that employees more than 300 employees nationally and operates at least 10 locations in California

 

$5.00
South San Francisco

Large Grocery Store or Large Drugstore that employs 500 or more employees nationwide

 

$5.00*

 

*Notably this increase is retroactive

West Hollywood

Grocery stores that employ 300 or more employees nationally and 15 employees per location in the City.

 

$5.00

 

While the ordinances proceed forward, so too do the lawsuits against some of the cities that were the early adopters. On February 25, 2021, the judge presiding over the lawsuit against the City of Long Beach denied the California Grocers Association’s (“CGA”) request for a preliminary injunction against the city’s ordinance. CGA has appealed the decision. If reversed on appeal, it would mean that covered employers would not be required to comply with the ordinance until a final decision was made in the case.

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

As the state of California approaches one year of being under various shelter-in-place orders, the Labor & Workforce Development Agency and the Department of Industrial Relations have consolidated resources for employers into a new website. The site provides information on how to ensure a safer and healthier workplace. It also has information on handling employees who may be sick or exposed to COVID-19 in the form of an FAQ.

The site has training resources for employees and employers to learn more about preventing the spread of COVID-19 in the workplace.

The new state website further includes a “road map” section in which employers can select their county and industry and receive information about regulations and requirements relevant to their workforce. The guidance includes required safety protocols such as social distancing, as well as potential employee benefits that the employer may be required to comply with. It additionally provides information on the steps to take following a COVID-19 case in the workplace, including local health department contact information.

The guidance, while purporting to be “customized” by the state, is essentially pulling from state and county guidances already available. Employers will still need to sift through the information to determine how to best implement requirements and ensure compliance.

Jackson Lewis continues to track state and local developments related to COVID-19. If you have questions about how to comply with state and local requirements or have other questions about COVID-19 and the workplace, contact a Jackson Lewis attorney to discuss.

On January 1, 2021, the California Family Rights Act (CFRA) expanded in several ways, including that small employers (those with 5 or more employees) must now provide up to 12 workweeks of CFRA leave within a 12-month period to eligible employees. With the expanded applicability of CFRA, it’s important for California employers to be aware of the sometimes-confusing interplay of CFRA with other state and federal leave laws when it comes to an employee’s pregnancy.

The Laws Employers Need to Know

Aside from CFRA, California’s Pregnancy Disability Leave law (PDL) and the federal Family Medical Leave Act (FMLA) may also come into play when an employee is pregnant, gives birth, and/or seeks leave to bond with a baby.

PDL provides eligible employees with up to 4 months (or 17 1/3 weeks) of unpaid, job-protected leave, per pregnancy, while the employee is disabled due to pregnancy, childbirth, or a related medical condition. Employers with five or more employees must comply with PDL.

Next is the Family Medical Leave Act (FMLA) which provides eligible pregnant employees with up to 12 workweeks of unpaid, job-protected leave within a 12-month period for the employee’s serious health condition (including pregnancy, childbirth, or related medical conditions) or baby bonding purposes. Employers are not required to provide FMLA leave if, among other reasons, the employee seeking leave works at a worksite with fewer than 50 employees in a 75-mile radius.

Meanwhile, CFRA authorizes eligible employees to take up to 12 workweeks of unpaid job-protected leave within a 12-month period for baby bonding purposes. Unlike FMLA, CFRA leave does not get used during an employee’s leave because of pregnancy, childbirth, or related medical conditions (though CFRA leave may be available for other serious health conditions of the employee).

In addition, FMLA and CFRA both provide certain leave entitlements for employees who need leave to care for specified family members with a serious health condition.

How the Laws Work Together

The overlap between FMLA, CFRA, and PDL may seem confusing – how do they work when an employee becomes pregnant?

The first thing employers should know is that FMLA runs “concurrently” with both PDL and CFRA. This means that FMLA does not provide any additional leave entitlement beyond the allowances provided under PDL and CFRA for the purposes of a pregnancy-related leave.

In practice, PDL is provided to a pregnant employee first, potentially before an employee has even given birth. Once an employee is no longer considered disabled by pregnancy, childbirth, or related medical conditions, an eligible employee could then take up to 12 workweeks of baby bonding leave under CFRA. If applicable, FMLA would run concurrently with and get used during, the employee’s PDL and CFRA leaves.

This means, between 17 1/3 weeks of PDL and 12 workweeks of CFRA, an eligible California employee may take up to 29 1/3 weeks off due to pregnancy, childbirth, and baby bonding. However, if an employee exhausts the PDL leave entitlement and remains disabled, other leaves and considerations may come into play such as disability accommodation.

If you have questions about CFRA or other issues related to pregnancy leave eligibility, contact a Jackson Lewis attorney to discuss.

Is the California Supreme Court about to make it more difficult to dispose of whistleblower retaliation claims?  That may well be the case. The Supreme Court has agreed to answer the 9th Circuit Court of Appeals’ question about California law and unlawful retaliation against an employee in Lawson v. PPG Architectural Finishes, Inc. In particular, the 9th Circuit asks the California Supreme Court to set the evidentiary standard for whistleblower retaliation claims brought under California Labor Code section 1102.5.

The Lawson case involves a manufacturer of paint, stains, caulks, and other products. Mr. Lawson was a territory manager whose duties included merchandising products to home improvement stores and ensuring that the company’s displays were stocked and in good condition. Mr. Lawson was allegedly directed by his supervisor to handle a product in a way that fraudulently removed a slow-selling product from its inventory. Mr. Lawson told his supervisor he would not do this and reported the directive to the company’s ethics hotline on two separate occasions. The second report to the ethics hotline resulted in an investigation. At the same time, Mr. Lawson received poor ratings for his work, was put on a performance improvement plan, and eventually terminated.

Mr. Lawson alleged in his complaint against the company, filed in the United States District Court, that he was retaliated against as a whistleblower.

The trial court in Lawson applied the McDonnell Douglas test which employs burden-shifting between the plaintiff and the employer.  The McDonnell Douglas test originated in the context of Title VII, the federal statute governing workplace discrimination, harassment, and retaliation.  The trial court concluded that the plaintiff failed to carry his burden to raise triable issues of fact regarding pretext and granted the employer’s motion for summary judgment.

Mr. Lawson argued in his appeal to the 9th Circuit that the trial court should have applied the evidentiary standard outlined in California Labor Code section 1102.6. That section states that once it has been demonstrated by a preponderance of the evidence that the whistleblower activity was a contributing factor in the retaliation against the employee, the employer’s burden of proof is to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons.

The 9th Circuit noted in its question to the California Supreme Court that application of the McDonnell Douglas test to whistleblower claims under Labor Code section 1102.5 “seems to ignore [a] critical intervening statutory amendment” by which the California legislature established the evidentiary burdens of the parties participating in a civil action or administrative hearing involving a violation of the statute. Though this statement by the Circuit seems like a decision, the 9th Circuit pointed out three published California appellate court decisions that expressly applied McDonnell Douglas after the amendment. This contradiction between California’s statute and the court rulings is the root of the 9th Circuit’s question.

Critically, if the California Supreme Court rules that the evidentiary requirement under Labor Code section 1102.6 applies, disposing of whistleblower retaliation claims prior to trial will become extremely difficult due to the high evidentiary standard applied to the employer.

Jackson Lewis will continue to track this case and others affecting California employment law litigation. If you have questions regarding this case or related issues, contact a Jackson Lewis attorney to discuss.

Current and former employees have a right to inspect their personnel file at reasonable times. So, when a current or former employee intends to bring or has brought a claim against their employer, they will likely request a copy of their personnel file. However, if the employer has failed to properly maintain their employee’s personnel files, there isn’t a rewind button to recreate that file. This is what litigators would like employers to know about employee personnel files.

Maintaining Employee Personnel Files

To comply with the requirements under California law to allow inspection of employee personnel files, an employer must maintain former employees’ personnel files for at least three years following the employee’s separation from the company.

What Should Be In the Personnel File

Under the California Labor Code, employers are required to give an employee a copy of any document that the employee signed to obtain and/or hold their employment.

  1. Recruiting and screening documents such as applications, resumes, and educational transcripts
  2. Job descriptions
  3. Handbook and policy acknowledgments
  4. Employment agreements, if applicable

Other records that are generally kept in personnel files are those used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action. This could include the following:

  1. Notices of commendation, warning, or discipline
  2. Notices of layoff, leave of absence, and vacation
  3. Education and training notices and records
  4. Performance reviews
  5. Attendance records
  6. Payroll authorization forms
  7. Termination notices and documentation

What Not to Keep In The Personnel File

The number one item that should not be kept in the employee’s personnel file is medical information. Under California regulations, medical information should be kept separate from the personnel file to protect the employee’s confidential information. Medical information could include records obtained as part of a workers’ compensation claim and/or the interactive process where doctor’s certifications are provided for a leave of absence or request for accommodations.

What is an Employee Not Entitled to Review

Under California law an employee does not have the right to review the following:

  1. Records relating to the investigation of a possible criminal offense
  2. Letters of reference
  3. Ratings, reports, or records that were:
    • Obtained from the employee’s prior employer
    • Prepared by identifiable examination committee members
    • Obtained in connection with a promotional examination

While having organized personnel files may not insulate an employer from a legal claim, having the appropriate documents retained for the appropriate amount of time and in the way required under California law will help streamline litigation for the employer and their attorney.

If you have questions about employee personnel files or related issues pertaining to employee records, contact a Jackson Lewis attorney to discuss.