As the temperatures rise, many employers, including those in the retail industry, may be fielding applications from minors looking for summer work.  Before hiring applicants under the age of 18, it’s important to understand the requirements that apply to that segment of the workforce. 

Minimum Age to Work

For most employers, a minor must be at least 14 years of age to work.

Work Permits

In California, most minors under the age of 18 must have a permit to work. After an employer agrees to hire a minor – and before the minor may begin working – the minor must obtain a Statement of Intent to Employ Minor and Request for Work from their school.  The minor and the employer complete the form, and the form must be signed by the minor’s guardian and the employer.  After the minor returns the form to the school, school officials may issue the Permit to Employ and Work. The permit will state the maximum number of hours the minor may work per day and week, the range of hours during the day that the minor may work, any limitations, and any additional restrictions imposed at the school’s discretion.

A permit that is issued during the school year will expire five days after the start of the next school year. During the summer, minors may obtain work permits from the superintendent of the school district where the minor lives.  Permits are required even when school is not in session; i.e. during summer break.

High school graduates and minors who have received a certificate of proficiency are exempt from permit requirements.

Hours of Work

California law places limits on the number of hours per day and week that a minor may work.  The limitations vary depending on the age of the minor and whether school is in session. 

The following is a general summary of some of the key limitations:

 16 & 17-Year-Olds14 and 15-Year-Olds
When school is in session4 hours per day on a school day 8 hours on a non-school day Limited to 48 hours per week3 hours per school day outside of school hours8 hours on a non-school dayLimited to 18 hours per week
When school is not in session8 hours per dayLimited to 48 hours per week8 hours per day Limited to 40 hours per week

There are also limitations on the time of day that a minor may work based on their age and whether school is in session.

Type of Work to be Performed

Employers should be aware that California and federal law dictate the type of work that minors may perform.  For example, 14- and 15-year-old employees may perform the following types of work in the retail and food service industries:

  • Office and clerical work
  • Cashiering, selling, modeling, art work, work in advertising departments, window trimming, and comparative shopping
  • Price marking and tagging by hand or by machine, assembling orders, packing and shelving
  • Bagging and carrying out customers’ orders
  • Errand and delivery work by foot, bicycle, or public transportation
  • Certain types of clean-up work and kitchen work

Employers should ensure that they are not assigning work to minor employees that run afoul of any state or federal restrictions.

Recordkeeping

Employers must have a valid work permit on file for all minors and make the permits available for inspection by the school and officers of the Division of Labor Standards Enforcement at all times.  Employers must also keep a record, for three years, of minor employees’ names, dates of birth, and addresses, and maintain for minor employees the same payroll and timekeeping records required for all employees.

Mandated Reporter

In 2020, California passed a bill that expanded the definition of a mandated reporter. Under the law, a California employer with five or more employees that employ minors must provide training on identification and reporting of child abuse and neglect to the following two classes of mandated reporters: (1) all human resources employees; and (2) all adults whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace.

If you have questions about the employment of minors or related issues, contact a Jackson Lewis attorney to discuss.

The “cannabis industry” in California is not monolithic but is actually composed of employers in various industries. Agricultural employers cultivate cannabis, manufacturing employers process cannabis and package it, and retail employers sell the cannabis. For all these employers, Cal/OSHA imposes several workplace safety requirements that can pose compliance challenges.

Currently, Cal/OSHA does not have a specific regulation for employers involved in the cannabis industry. In 2018, Cal/OSHA issued advisory findings and recommendations on the industry-specific regulations for cannabis establishments. The findings concluded that there was a need for industry-specific regulations, particularly as it applies to employee exposure to secondhand smoke from on-site consumption of marijuana. To date, however, no such regulation has been proposed.

Despite the lack of industry-specific regulation, cannabis industry employers should be aware of many general requirements under Cal/OSHA which are detailed on a Cal/OSHA industry page.

Injury and Illness Prevention Program (IIPP)

All California employers are obligated to have an effective written IIPP, which should include procedures to identify and correct health and safety hazards and detailed training plans for employees among other components.

 Cal/OSHA also suggests that cannabis industry employers review the Injury and Illness Prevention Model Program for Workplace Security due to the nature of the industry. The model program walks through communication with employers, hazard assessment for workplace security issues, and related issues.

Relevant Health and Safety Regulations

Cal/OSHA has identified other general industry standards as having potential application to cannabis industry employers, including the following:

If you are a cannabis industry employer and have questions about workplace safety compliance in California, please reach out to the authors, the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

In 2022, the California legislature passed Senate Bill (SB) 1162, which expanded the state’s existing pay data reporting requirements for “payroll employees” to include a new pay data report for employers with 100 or more “labor contractor employees.”  Under SB 1162, the pay data reporting deadline was moved to May. This year these reports are due May 10th.

But—according to a new FAQ from the California Civil Rights Department—beginning April 18, employers may seek “enforcement deferral” on their “labor contractor employee reports.”  This delayed enforcement may come as a pleasant surprise to employers still grappling with the expanded scope of the labor contractor reporting. 

The key takeaways from the April 14th FAQ Update include:

  • The CRD will only accept requests for enforcement deferral through its pay data reporting portal. As such, employers interested in taking advantage of this reprieve must first register for the portal.
  • Request for enforcement deferral must be made by May 10, 2023.
  • The enforcement deferral will be through July 10, 2023.
  • The CRD will not consider requests made by a third party on behalf of an employer, such as a Professional Employer Organization (PEO).
  • The enforcement deferral request will only apply to “labor contractor employees” reports. Reports covering “payroll employees” will still be due on May 10th.

Under applicable pay data reporting requirements, the CRD may seek a court order requiring the employer to comply with reporting requirements if they do not submit timely, as well as civil penalties of up to $100 per employee for initial violations. Employers with concerns over the May 10th “labor contractor employee” reporting deadline may benefit from seeking taking advantage of this procedure to seek enforcement deferral.

If you have questions about obtaining an enforcement deferral or related issues pertaining to California pay data reporting, contact a Jackson Lewis attorney to discuss.

On April 1, 2023, the City of Los Angeles’ Retail Fair Workweek Ordinance took effect, but the City had only issued a Frequently Asked Questions page as guidance. More recently, the City published rules and regulations as required in the ordinance.

The Rules and Regulations cover the following topics:

  • Determining who is a covered employee
  • Determining who is a covered employer
  • Good faith estimates
  • Advance notice of work schedules and changes to work schedules
  • Predictability pay and exemptions to predictability pay
  • Rest between shifts requirement
  • Offering additional work hours to employees
  • Notice and posting requirements
  • Record retention requirements
  • Notices to cure
  • Enforcement

Most of the rules and regulations restate what is in the ordinance but also include illustrative examples for determining if an employer is a retail business and calculating the total number of employees globally for purposes of coverage under the ordinance.

Two items of note in the regulations are the definition of when a schedule has substantially deviated from the good faith estimate of hours and how offers of additional hours should be provided.

When Estimated Hours Substantially Deviate

The regulations set forth when a good faith estimate of hours is deemed to “substantially deviate” for the purposes of the statute. Under the regulations a good faith estimate substantially deviates when any of the following occurs:

  • Six work weeks out of twelve consecutive work weeks in which the number of actual hours worked differs by 20% or more from the expected hours in the Good Faith Estimate, and the differences are not due to documented employee-initiated or employee-approved changes
  • Six work weeks out of twelve consecutive work weeks in which the actual days of work differ from what was indicated in the Good Faith Estimate at least once per week, and the differences are not due to documented employee-initiated or employee-approved changes
  • Six work weeks out of twelve consecutive work weeks in which the actual location of the Shift differs from what was indicated in the Good Faith Estimate at least once per week, and the differences are not due to documented employee-initiated changes or employee-approved changes; or
  • Six work weeks out of twelve consecutive work weeks in which at least one actual Shift per week is outside of the potential Shifts indicated in the Good Faith Estimate; and the differences are not due to documented employee-initiated or employee-approved changes.

If actual work hours substantially deviate from the hours’ estimate, employers must have a legitimate, documented business reason that was unknown at the time of the estimate to substantiate the deviation. If the employee requests a revised good faith estimate, the employer must provide a current estimate within ten calendar days of the employee’s request.

Offer of Additional Hours

The regulations also set forth a process for offering additional hours to employees in lieu of hiring additional employees. The regulations state that the notice communicating the offer should contain the following:

  1. Shifts or days and times the employee must be available to work;
  2. Length of time the employer anticipates requiring coverage of the additional hours;
  3. Description of the position;
  4. Required qualifications for the position and that training, if any, will be provided;
  5. The process by which the employee may accept the hours; and
  6. Date and time by which the employee must accept or decline the offer

Posting

All employers covered by the ordinance are required to post a notice of the ordinance. The City has published the notice on its website for employers in several languages. Covered employers are also required to provide this notice to all new employees at the time of hiring.

If you have questions about the Los Angeles Retail Fair Workweek Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

California has had a handful of bills in recent years that discuss the process for hiring employees when there is a change in ownership or control.  There is another bill pending pertaining specifically to grocery stores that experience a change in control. Assembly Bill (AB) 647 would amend certain requirements upon a change in control of a grocery establishment.

The California Chamber of Commerce, the California Grocers Association, and the California Retailers Association have submitted opposition to the bill, stating, “In 2015, AB 359 was signed into law, which added protections for grocery workers from being laid off for 90 days after a store changes ownership through consolidation, merger, or reorganization. AB 647 seeks to extend the timelines in AB 359 by 40 days and include distribution centers, with no supporting data to show this change is needed for the transfer of information or the protection of employees. The most recent amendments to AB 647 create a rebuttable presumption in favor of an employee, sets arbitrary standards for the reinstatement of employees, and create significant litigation risks for the grocery industry, including the addition of punitive damages.”

Under the current law, upon change of control of a grocery store, the incumbent employer has 15 days after the execution of the agreement affecting the change in control to provide the successor employer with a list of eligible grocery workers.  The successor employer is required to maintain a preferential hiring list of eligible workers and to hire from that list for 90 days after the grocery store is fully operational and open to the public. The successor grocery employer must retain each eligible worker for at least 90 days after the commencement date.  

To be an eligible worker, the worker must have been primarily employed by the incumbent employer for at least 6 months prior to execution of the agreement affecting the change in control unless the worker is a “separated employee.”  Separated employees must have been separated from employment for certain non-disciplinary reasons prior to the change in control and satisfy other requirements.  Eligible workers do not include managerial, supervisory, or confidential employees.

AB 647 would extend the timeline for hiring from the list of eligible workers to 120 days after the grocery store is fully operational and require the successor employer to retain each eligible worker it hires for at least 120 days after each worker’s commencement date unless the successor employer determines during the 120-day period that it requires fewer eligible grocery workers.

The bill also would require an incumbent grocery employer to provide the list of eligible grocery workers to any collective bargaining representatives and would require the incumbent grocery employer to add the eligible workers’ cellular telephone numbers and email addresses, if known, to the list of information already required to be provided to the successor grocery employer.

The bill would authorize a successor grocery store employer to obtain the list of eligible grocery workers from a collective bargaining representative if the incumbent grocery employer does not provide the information within 15 days.

The bill would grant a worker who is offered a position that is more than 15 miles from their place of residence the right to refuse an offer without a loss of seniority and would grant a separated employee a right to recall based on seniority before hiring any new employees for one year.

This bill is still in the early stages and it is likely it will not be  know until the end of the legislative session in September whether it will be sent to the Governor for consideration.

Jackson Lewis will continue to track legislation that impacts California employers. If you have a question about this bill or related issues, please contact a Jackson Lewis attorney with whom you regularly work.  

Since the passage of California Assembly Bill (AB) 5 in 2019, there have been subsequent legal challenges and revised legislation that continues to shape the status of independent contractors and related employment law issues in California.  Keeping track of all the cases and exemptions related to AB 5 is almost as difficult as determining who can be an independent contractor.

AB 5, which became effective in January 2020, codified and broadened the California Supreme Court 2018 decision Dynamex Operations West, Inc v. Superior Court, in which it set forth the “ABC” test for determining whether a worker should be classified as an independent contractor. Under the test a worker may be classified as an independent contractor if the employer can satisfy the following criteria:

  •  (a) the worker is free from control and direction in the performance of services; and
  • (b) the worker is performing work outside the usual course of the business of the hiring company; and
  • (c) the worker is customarily engaged in an independently established trade, occupation, or business.

The following are some of the recent developments relating to AB 5 and independent contractors in the Golden State.

AB 5 and Its Retroactive Application

In January 2021, the California Supreme Court held in Vazquez v. Jan-Pro Franchising International, that its Dynamex decision applies retroactively to independent contractor classification claims and decisions/conduct pre-dating Dynamex.

AB 5 and Federal Preemption

Soon after the passage of AB 5, motor carriers challenged its application to their work. Initially, a preliminary injunction preventing AB 5’s application to motor carriers was granted by the federal district court.  That decision was short-lived, however, when in April 2021, the 9th Circuit panel held that the application of California Assembly Bill 5 (AB 5) to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA).

That 9th Circuit Court decision became final when in 2022 the U.S. Supreme Court declined to review that decision. At this juncture, AB 5 requirements apply to motor carriers in the state.

AB 5 and First Amendment

In 2022, the U.S. Court of Appeals for the 9th Circuit held that AB 5’s requirements pertaining to independent contractors did not violate the First Amendment. A company that handled signature collection for political issues, argued that applying AB 5 to individuals knocking on doors and gathering signatures discriminated against them based on their free speech rights. The 9th Circuit disagreed and upheld a denial of a preliminary injunction against the enforcement of AB 5.

AB 5 and Proposition 22

In 2020, California voters approved Proposition 22, also known as the “Protect- App-Based Drivers and Services Act,” which allows app-based ride-share and delivery driver companies to hire drivers as independent contractors if certain conditions were met. 

This year, the California Court of Appeal upheld Proposition 22, despite challenges.

AB 5 and Exemption Legislation

And since the passage of AB 5, several legislative bills have passed, that exempt certain professions from the “ABC” test, including newspaper distributors, manicurists, and construction trucking subcontractors.

Recent legislative and judicial history both demonstrate that the employment issues arising from AB 5 and its application in the workplace remain challenging and ever-changing.

If you have questions about AB 5 or independent contractor classification, contact a Jackson Lewis attorney to discuss.

Cal/OSHA has been working on a proposed Indoor Heat Illness Prevention Standard since 2017. Now, nearly 5 years later, the Cal/OSHA Standards Board published a draft standard and announced a public hearing on Heat Illness Prevention in Indoor Places of Employment. This comes after Cal/OSHA had stepped up enforcement of indoor heat hazards despite no formal standard in place.

While the draft standard released will apply to all indoor work areas where the temperature equals or exceeds 82 degrees, the trigger for employers to initiate additional preventative measures for heat illness protections (including the use of instruments to measure heat index) will be 87 degrees. These proposed measures include the following:

  • Opening cool-down areas, which are defined as an indoor or outdoor area that is blocked from direct sunlight and shielded from other high radiant heat sources and is either open to the air or provided with ventilation or cooling.
  • Providing each employee with one quart of drinking water per hour.
  • Allow employees to take breaks whenever a worker feels the need to rest to protect from overheating.

Similar to the existing outdoor heat illness and injury prevention standard, employers would be required to establish emergency response procedures to treat employees who become ill as well as monitoring new employees for signs of heat stress during their first 14 days of work in hot conditions.

The proposed standard would require both employees and supervisors to be trained on indoor heat illness prevention and safety.

Under the proposed standard, employers would be required to monitor the temperature and heat index inside buildings and keep records of the readings for twelve months or until the next measurements are taken, whichever is later.

The public hearing on the proposed standard is scheduled for May 18, 2023, and written comments may also be submitted until that date.

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

Most likely, yes. Employers covered by San Francisco’s Fair Chance Ordinance or Health Care Security Ordinance are required to submit the Employer Annual Report Form to the San Francisco Office of Labor Standards Enforcement (OLSE) by May 1, 2023. The purpose of the Annual Report Form is to provide OLSE with a snapshot of the employer’s compliance with either of these two San Francisco ordinances. Covered employers who fail to submit the form by the deadline may be subject to a penalty of $500 per quarter.

Instructions and resources for employers who are required to report are on the OLSE’s website.

Fair Chance Ordinance

San Francisco’s Fair Chance Ordinance (FCO) applies to employers with five or more employees worldwide, as well as employers of any size who contract with the City and County of San Francisco. Similar to the State of California’s Fair Chance Act, the FCO prohibits covered employers from asking job applicants for positions that require at least eight hours of work per week in San Francisco about arrest or conviction records until after a conditional offer of employment is issued.  In addition, the FCO prohibits covered employers from considering certain facts during the application process, including whether a job applicant’s history includes an arrest that did not lead to a conviction.

The annual reporting requirements include disclosing the number of employees the employer hired to work in San Francisco in 2022, whether the employer conducted background checks of job applicants, and whether the employer hired anyone who had a conviction history.

Health Care Security Ordinance

The Health Care Security Ordinance (HCSO) applies to private and non-profit employers who employ any individual in San Francisco, and twenty or more workers, or in the case of non-profits, 50 or more workers, inside or outside of San Francisco.  Under the HCSO covered employers must spend a minimum amount set by law on healthcare for each employee who works eight or more hours each week in San Francisco.

The reporting requirement includes disclosing the number of individuals employed in each quarter of 2022, the number of employees covered by the HCSO in each of those quarters, the employer’s total spending on healthcare, and the types of healthcare coverage the employer offered to employees.

If you have questions about reporting requirements for or your organization’s compliance with, the FCO or HCSO, reach out to a Jackson Lewis attorney to discuss.

Existing law requires an employer to provide an employee with a meal period during a work period of more than five hours per day, except as prescribed. However, on March 23, 2023, Governor Newsom signed Senate Bill (SB) 41, which provides that California’s meal and rest period requirements do not apply to airline cabin crew employees if they are covered by a valid collective bargaining agreement under the Railway Labor Act.

Under the new law, state meal and rest period requirements shall not apply to airline cabin crew employees if the employees meet the following:

  • The employee is covered by a valid collective bargaining agreement under the Railway Labor Act and that agreement contains any provision addressing meal and rest periods for airline cabin crew employees.
  • The employee is part of a craft or class of employees that is represented by a labor organization pursuant to the Railway Labor Act (but is not yet covered by a valid collective bargaining agreement)

The second requirement shall apply for the first 12 months that the craft or class of employees is represented by a labor organization and may apply for longer than the first 12 months only if agreed upon in writing by the employer and the labor organization representing the employee’s craft or class.

The legislation is an urgency statute and states that it is effective immediately.

If you are in the airline industry and covered by a collective bargaining agreement, then it is imperative that you understand the application of SB41 to your business, as it pertains to meal and rest breaks.

Jackson Lewis will continue to track legislation that affects employers doing business in California. If you have questions about SB 41 or related issues, contact a Jackson Lewis attorney to discuss.

The COVID-19 State of Emergency for California ended on February 28, 2023. In its wake, the California Department of Public Health (CDPH) has announced impending updates to its remaining COVID-19 mandates, including those applicable to healthcare workers.

On March 3, 2023, the CDPH announced it would end vaccination requirements for healthcare workers, including those in direct care, adult care, correctional facilities, and detention centers effective April 3, 2023.

In addition to lifting the vaccination mandate, the CDPH will also remove masking requirements for high-risk settings effective April 3, 2023. Masks will no longer be required in health care, long-term care, and correctional facilities as well as homeless, emergency, and warming and cooling centers.

The CDPH indicated that the month between the announcement and the April 3rd effective date is intended to provide health departments and healthcare facilities with time to develop plans customized to their needs and local conditions.

In addition to these healthcare-related orders, the CDPH updated its Isolation and Quarantine Guidance to remove the recommendation that individuals test for COVID-19 in order to leave isolation before Day 10 under certain circumstances. Effective March 13, 2023, a COVID-19-positive person may end isolation after five days if they feel well, have improving symptoms, and are fever-free for 24 hours. The Guidance also amends masking requirements for individuals leaving isolation sooner than Day 10.

If you have questions about the changes in COVID-19 mandates or related issues, contact a Jackson Lewis attorney to discuss.