As Summer starts to heat up, employers with outdoor worksites should review their Heat Illness Prevention Plan (HIPP) compliance under Cal/OSHA’s outdoor heat illness prevention standard.

Which Employers Are Covered?

The standard applies to any employee working outside. This may include positions that are not solely outside.

Obligations for Covered Employers

Covered employers must take the following steps to prevent heat illness in the workplace:

  1. Train employees and supervisors on heat illness prevention.
  2. Provide enough “fresh, pure, and suitably cool” water so that each employee can drink at least 1 quart per hour and encourage them to do so.
  3. Ensure timely access to shade when the temperature exceeds 80 degrees Fahrenheit and otherwise upon an employee’s request.
  4. Encourage employees to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating at all times.
  5. Implement effective emergency response procedures related to heat illness.
  6. Closely observe employees that have been newly assigned to a high-heat area for the first 14 days of employment, and all employees during heat waves.
  7. Develop and implement a written Heat Illness Prevention Plan.

Additional High Heat Procedures

Certain industries must comply with additional high-heat illness prevention procedures when the temperature equals or exceeds 95 degrees Fahrenheit. These industries include:

  • Agriculture
  • Construction
  • Landscaping
  • Oil and gas extraction
  • Transportation and delivery of agricultural products and construction or other heavy materials, except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading

High heat procedures include ensuring employees are observed regularly for signs of heat illness and establishing effective communication methods so workers can contact a supervisor when needed.

Written HIPP

All covered employers must have a written HIPP, which is generally recommended to be a stand-alone document. Cal/OSHA has an e-tool to assist with developing a HIPP on its website.  

Inside Heat

Summertime can also mean hotter temperatures inside and while the official Indoor Heat Standard is still in the works, employers should still evaluate and address heat hazards indoors as Cal/OSHA has begun citing employers for indoor heat under Section 3203.

If you have questions about heat injury prevention 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.

The COVID-19 State of Emergency may be over but many employers are still feeling the economic effects of the pandemic.  In 2022, when COVID-19 Supplemental Paid Sick Leave (SPSL) was extended for the final time, the legislation also provided for a grant program for certain businesses to offset the costs of providing SPSL.

The State of California has a website where eligible businesses may apply for the grant.

Who Is Eligible?

A “qualified small business or nonprofit” must satisfy the following criteria to be eligible to receive a grant award under the program:

  1. Must meet the definition of a qualified small business or nonprofit as confirmed by the California Office of Small Business Advocate (CalOSBA) or fiscal agent through review of revenue declines, other relief funds received, credit history, tax returns, and bank account validation.
    1. Must be one of the following:
      1. A “C” corporation, “S” corporation, cooperative, limited liability company, partnership, or limited partnership.
      2. A registered 501(c)(3), 501(c)(6), or 501(c)(19).
    2. Began operating before June 1, 2021.
    3. Is currently active and operating.
    4. Had 26 to 49 employees between January 1, 2021, and December 31, 2022, and must provide payroll data and an affidavit, signed under penalty of perjury, attesting to that fact.
    5. Has provided COVID-19 Supplemental Paid Sick Leave pursuant to the requirements of Sections 248.6 and 248.7 of the California Labor Code.
    6. Must provide organizing documents, including a 2020 or 2021 tax return or Form 990, and a copy of official filing with the Secretary of State or with the local municipality, as applicable, including, but not limited to, Articles of Incorporation, Certificate of Organization, Fictitious Name of Registration, or government-issued business license.
  2. Must have an owner – or in the case of a nonprofit, an officer – identified as the authorized signer on the application that is at least 18 years of age.
  3. Must be able to provide an acceptable form of identity verification through an acceptable government-issued photo ID.

What Can Funds Be Used For?

Eligible businesses may use the funds to reimburse for SPSL provided between January 1, 2022, and December 31, 2022.  Businesses will be required to provide proof of employee payroll records that verify all SPSL provided by the business was pursuant to the state requirements under Labor Code sections 248.6 and 247.7.

For additional information on the application process, eligible businesses should review the State’s application portal at caspsl.com.

If you have additional questions about California SPSL or related issues contact a Jackson Lewis attorney to discuss.  

Soap Operas are known for drama.  Nothing has caused more drama in the last two years than vaccine mandates.  Last week, a California court determined that a plaintiff’s request for religious accommodation at General Hospital could not be accommodated.  The court concluded defendant had advanced sufficient evidence that unvaccinated employees threatened the health and safety of others during the relevant period and that “testing by itself was not sufficient to address the health and safety concerns associated with the global pandemic during the relevant time period.” Rademacher v. American Broadcasting Companies, Inc.

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

There are several posting requirements in California for employers and it is important to ensure the appropriate posters are displayed in an area frequented by employees where they may be easily read during the workday.

Two of California’s main administrative agencies that regulate workplace requirements, the Department of Industrial Relations and the California Civil Rights Department (formerly known as the Department of Fair Employment and Housing), have websites that list the required posters and link to copies of the posters.

Some of the important posters that all employers are required to display include:

  • Industrial Welfare Commission (IWC) wage orders
  • Pay Day Notice
  • California Minimum Wage Notice
  • Paid Sick Leave Notice
  • Safety and health protection on the job

Other posters are required for employers of different sizes as well as for specific industries. Certain localities may also have their posting requirements such as the local minimum wage or related local ordinance requirements. Please check the administrative agencies’ websites for more details.

Employers should also ensure that fillable posters, such as the Pay Day Notice, are appropriately filled out and updated timely should the business make changes.

Since 2022, California allows employers to also distribute the posters to employees by email with the relevant document(s) attached. While this does not remove an employer’s obligation to physically display posters as required and detailed above, the measure is intended to clarify the employer’s ability to communicate required information more effectively.

If you have questions about required postings for California or related issues contact a Jackson Lewis attorney to discuss.

Recently the State of Washington passed a law pertaining to warehouse quotas, which was similar to a law California passed in 2021.

California’s law took effect January 1, 2022, and shortly after the effective date the Labor Commissioner published Frequently Asked Questions on the law.

Since the California law is a little over a year old, here are some reminders about compliance under the law.

Covered Employers

The law covers employers who directly or indirectly control 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in California. Employees provided by outside staffing agencies may also be included where the employer controls the terms and conditions of employment for those employees.

Warehouse distribution centers are defined under the law by referring to the North American Industry Classification (NAICS) codes, including General Warehousing and Storage, Durable Goods Merchant Wholesales, Nondurable Goods Merchant Wholesalers, and Electronic Shopping and Mail-Order Houses. Farm Product Warehousing and Storage are exempt from the law.

Required Notices to Employees

Covered employers upon hire of an employee must provide a written notice that describes the quota requirements. This includes the number of tasks to be performed or materials that must be produced or handled within a time period, and any potential adverse employment action that could result from failing to meet the quota. 

Covered employers are also required to respond to requests from former employees about quotas and their work speed, though former employees are limited to only one request.

If you have questions about compliance with California’s Warehouse Quota or related issues, contact a Jackson Lewis attorney to discuss.

On January 1, 2023, California’s statewide minimum wage increased to $15.50 for all employers.  Depending on where their employees are located within the state, California employers may be facing another minimum wage increase on July 1st.

Several localities in California have minimum wage ordinances that require employers to pay employees working in those localities a minimum wage that is higher than the state minimum wage. While many local minimum wages increase every January 1st, as does the state minimum wage, a number increase every July 1st.  

The following localities will raise their minimum wage on July 1, 2023:

LocalityCurrent Minimum WageNew
Minimum Wage
Alameda$15.75$16.52
Berkeley$16.99$18.07
Emeryville$17.68$18.67
Fremont$16.00$16.80
City of Los Angeles$16.04$16.78
County of Los Angeles (unincorporated areas only)$15.96$16.90
Malibu$15.96$16.90
Milpitas$16.40$17.20
Pasadena$16.11$16.93
San Francisco$16.99$18.07
Santa Monica$15.96$16.90
West Hollywood$17.00 (fewer than 50 employees)
$17.50 (50 or more employees)
$18.35 (hotel employees)		$19.08 (all employees)

Employers must also ensure that minimum wage postings in the workplace are updated appropriately to reflect state and local increases.  

These changes to local minimum wage requirements do not affect the minimum salary requirement for certain exempt employees in California; that salary requirement is based on the state minimum wage and does not increase based on changes in local law. 

To ensure your company has up-to-date minimum wage information, subscribe to Jackson Lewis’ Minimum Wage Watch, which provides alerts on changes in the minimum wage in California and around the country.

If you have questions about minimum wage compliance, contact a Jackson Lewis attorney to discuss.

On May 9, 2023, the California Supreme Court heard oral arguments in Adolph v. Uber to decide “[w]hether an aggrieved employee who has been compelled to arbitrate [their individual] claims under the [California Labor Code] Private Attorneys General Act (PAGA) . . . maintains statutory standing to pursue PAGA claims arising out of events involving other employees . . . in court or in any other forum the parties agree is suitable.” 

The Court’s answer to the question is of critical importance to employers who utilize (or are considering utilizing) arbitration agreements.  Last year, the U.S. Supreme Court held in Viking River Cruises v. Moriana that an employee who has been compelled to arbitrate their individual PAGA claim(s) lacks standing to pursue PAGA claims involving other employees in court.  The decision made employment arbitration agreements increasingly attractive to employers because it potentially allowed arbitration agreements to dispose of most, if not all, of a PAGA action.  But the U.S. Supreme Court’s decision also left open the possibility that the California Supreme Court might disagree with its conclusion and, because the issue is a matter of pure state law, the California Supreme Court’s decision would control at the end of the day.

The Oral Arguments

Unsurprisingly, the parties spent time during oral arguments discussing the import of a prior California Supreme Court decision, Kim v. Reins International California, Inc. In Kim, the California Supreme Court held that an employee who settles their individual (non-PAGA) Labor Code claims still maintains standing to pursue a PAGA action in court. In reaching its conclusion, the Court explained that “[a] PAGA claim is legally and conceptually different from an employee’s own suit for damages and statutory penalties [because] [a]n employee suing under PAGA does so as the proxy or agent of the state’s labor law enforcement agencies and may recover civil penalties that are distinct from the relief available to employees suing for their own individual Labor Code violations. The Court also explained that to have standing under PAGA an individual must be an “aggrieved employee” – defined by PAGA as “any person who was employed by the alleged [Labor Code] violator and against whom one or more of the alleged violations was committed,” and an individual does not necessarily lose status as an “aggrieved employee” by virtue of settling their individual (non-PAGA) Labor Code claims.

Both parties argued Kim supported their respective positions. For his part, Adolph argued that Kim supports his bid for standing despite his individual PAGA claims being compelled to arbitration because, in his view, unless and until there is an adjudication of his status as an “aggrieved employee,” nothing under PAGA precludes his pursuing PAGA penalties for other employees in a separate court action. Meanwhile, Uber argued that Kim supports its argument that Adolph lacks standing to pursue PAGA claims on behalf of other employees in court while he is arbitrating his individual PAGA claims. Uber argued that, unlike the employee in Kim, Adolph has no “skin in the game” when it comes to the separate court action for PAGA penalties for other employees and therefore lacks standing to prosecute that case. Although there was disagreement on the application of Kim (among other things), both sides did appear to agree that if the California Supreme Court concluded that an employee compelled to individual arbitration maintains standing to pursue PAGA claims involving other employees in court, it would still be appropriate to require trial courts to stay the action pending completion of the individual arbitration.

What’s Next

The California Supreme Court files its written opinions within 90 days of oral arguments and the decision becomes final 30 days after filing. As such, the resolution of the questions posed in Adolph should be out by August 7, 2023.

Jackson Lewis will continue to monitor this case.  If you have questions about PAGA claims, arbitration, or related issues, please contact a Jackson Lewis attorney.  

Governor Newsom signed Assembly Bill (AB) 113 which enacts changes to the collective bargaining process for agricultural workers.

In September 2022 Newsom signed Assembly Bill (AB) 2183  which established new ways for farmworkers to vote in a union election under the Agricultural Labor Relations Act (ALRA), including options for mail-in ballots, and authorization cards submitted to the California Agricultural Labor Relations Board (the Board), in addition to the existing in-person voting process.

AB 2183 also imposes civil penalties on agricultural employers that are found to have committed unfair labor practices of up to $10,000 for each violation and up to $25,000 for cases where the employee suffers “serious economic harm.” Significantly, the legislation allows the Board to impose personal liability on directors and officers of the employer.  In addition, AB 2183 requires employers to post an appeal bond in cases where an employer seeks to appeal an order of the Board involving monetary awards or economic benefits to employees or unions.

At the time of signing AB 2183 Newsom, the United Farm Workers, and the California Labor Federation agreed on clarifying language to be made to the enacted law. AB 113 implements the provisions of that agreement.  

AB 113 makes the following changes to the collective bargaining process:

  • Eliminates the option to conduct union elections using mail-in ballots.
  • Retains the option to conduct union elections via “card-check” system, also referred to as the “the Majority Support Petition.”
  • Limits the number of card-check elections that result in the certification of labor organizations to 75 certifications.

Under the bill, these changes would sunset on January 1, 2028, and at that time the card-check elections will no longer be an available option for union elections.

AB 113 takes effect immediately as a Budget Bill.

Jackson Lewis will continue to track legislation in California relevant to employers. If you have questions about the application of AB 2183/ AB113 or related labor issues, contact a Jackson Lewis attorney to discuss.

In November 2022, the City of Irvine was the first city in Orange County to pass a Hotel Worker Protection Ordinance. The ordinance generally took effect on December 22, 2022. However, the fair compensation for workload section of the ordinance takes effect on May 21, 2023.

Under that section of the ordinance, hotel employers are required to limit workloads for room attendants based on square footage. The ordinance also imposes a maximum room cleaning quota, dependent on the size of the hotel. Moreover, there are limits on the number of hours employees can work without written consent from the employee.  

There is now an initiative for a similar ordinance in the city of Anaheim. The organization pushing for the ordinance has collected sufficient signatures to require the city council to either adopt the ordinance, ask for a fiscal report, or send it to the city voters for consideration in 2024. Like the Irvine ordinance, the proposed Anaheim ordinance would require hotels and event centers to:

  • Provide panic buttons with a security guard on call for employees.
  • Place certain limitations on workload and hours for employees.
  • Set a $25.00 minimum wage for hotel housekeepers and other hotel workers with an annual increase.
  • Provide protections ensuring workers are retained when new owners or operators take over a business.

The Anaheim City Council is scheduled to consider the ordinance on May 16, 2023, though the agenda for that meeting has not yet been released.

If you have questions about the proposed Anaheim ordinance or related issues pertaining to hotel worker protection ordinances, contact a Jackson Lewis attorney to discuss.

In a pair of cases decided by the Second Appellate District of the California Court of Appeal, the Court reiterated the difference between procedural and substantive unconscionability when it comes to invalidating arbitration agreements based on unconscionability: procedural unconscionability focuses on the fairness of the process leading to the formation of the agreement, whereas substantive unconscionability focuses on whether the terms of the agreement are so one-sided that it unfairly benefits one of the parties to the agreement. The Court repeated the well-established rule in California that both procedural and substantive unconscionability must be present to invalidate an arbitration agreement and cautioned that a court must not “double count” procedural unconscionability or otherwise “water down” substantive unconscionability in its analysis.

The Two Cases

The facts of the two cases were similar. In Basith v. Lithia Motors, Inc. and Fuentes v. Empire Nissan, Inc., the Court of Appeal reviewed similar arbitration agreements in two otherwise unrelated cases. Both cases involved employees who signed arbitration agreements before starting work at car dealerships. In Basith, the plaintiff signed an online arbitration agreement, which he had to sign if he wanted the job (i.e. it was presented as take-it-or-leave-it.) In Fuentes, the plaintiff signed a single one-page form that had tiny and seemingly blurred print that rendered it largely unreadable.

Both agreements were deemed to have procedural unconscionability because they were presented to the employees on a take-it-or-leave-it basis in connection with their employment. The key question, then, was whether any substantive unconscionability existed in addition to procedural unconscionability. While substantive and procedural unconscionability do not need to be present to the same degree because the two are evaluated on a sliding scale where the greater presence of one can compensate for a lesser showing of the other, both substantive and procedural unconscionability must be present to invalidate the arbitration agreement. 

The Court held that despite a number of arguments raised by the employees, the substance of the arbitration agreements was fair, and therefore no substantive unconscionability existed to invalidate the agreements:

  • Font Size and Readability – In Fuentes, the Court rejected the employee’s argument that the tiny font size and unreadability of the agreement made it difficult to understand and thus substantively unconscionable.  The Court explained that “font size and readability go to the “process of contract formation” and therefore are “logically pertinent to procedural unconscionability and not substantive unconscionability.
  • Mutuality and Multiple Documents – In Fuentes, the Court rejected the employee’s argument that the agreement did not apply fully to the employer and the agreement was confusing to a layperson because of the presence of multiple contracts. The Court explained that the arbitration agreement controlled over any other document and the agreement applied to the employer.
  • Instructions on How to Initiate Arbitration – In Fuentes, the Court rejected the employee’s argument that the agreement’s lack of instructions on how to initiate arbitration gave rise to substantive unconscionability. The Court explained that the agreement stated that the procedures for arbitration would be governed by California’s Arbitration Act, which is not unconscionable.
  • Employer’s Signature – In Fuentes, the Court rejected the employee’s argument that the agreement’s lack of the employer’s signature amounted to substantive unconscionability. The Court explained that this might create an issue of whether a contract exists at all – an issue that the employee did not raise, but it does not concern how fair the agreement was and thus does not concern substantive unconscionability.
  • Legalese – In Basith, the Court rejected the employee’s argument that a layperson would have been led to believe that they had waived the ability to file a complaint with the Equal Employment Opportunity Commission or California Department of Fair Employment and Housing (“DFEH”) (the DFEH is now known as the California Department of Civil Rights). The Court explained that prolix legalese may result in procedural unconscionability since it goes to the form of the arbitration agreement, but it does not concern substantive unconscionability since the agreement did not actually waive such rights.

 The Takeaway

Unconscionability is one of the few contractual defenses that may be used to invalidate an arbitration agreement. Basith and Fuentes are therefore important cases because they confirm the dividing line between procedural and substantive unconscionability and ensure that a party or court does not “double count” procedural unconscionability or otherwise “water down” substantive unconscionability in a misguided rush to invalidate an arbitration agreement.   

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