As we wrap 2022, here a review of some of the changes to California employment law that will continue to affect employers in 2023.

Legislative Changes

New Year, New Minimum Wages for California

California Tightens Rules on Vehicle Tracking, Fleet Management

Cal/OSHA Mandated to Update Heat Illness and Wildfire Smoke Standard

California Revises Formula for Paid Family Leave and State Disability Insurance Benefits to Assist Lower Wage Earners

California Expands Who an Employee Can Care for Under the CFRA and California Paid Sick Leave Law

California Prohibits Retaliation Against Employees for Refusal to Report to Work During Emergency Conditions

Bereavement Leave Now Protected in California

California Passes New Requirements for Call Center Employers

COVID-19 Employee Notice Requirements Revamped and Extended Until 2024

Amendment to CMIA Regarding Mental Health and Mental Health Apps

California Expands Pay Transparency and Reporting Obligations

High Times Ahead for Employers in California

California Adopts Law that Seeks to Protect Children’s Online Privacy

FAST Recovery Act Signed by California’s Governor

California Passes Legislation to Expand Mandated Retirement Plans

California Governor Signs Bill Extending Provisions Related to Filing Work Share Plans Indefinitely

Case Law Changes

Federal Preemption of California’s Meal and Break Laws for Interstate Motor Carriers Applies Retroactively

Ninth Circuit Holds California’s ABC Test for Classifying Independent Contractors Does Not Violate First Amendment

California Court of Appeal Upholds Construction Industry CBA Exemption from PAGA

U.S. Supreme Court Deals Blow to California’s Private Attorneys General Act

9th Circuit Holds California Paid Sick Leave Does Not Apply to Rail Workers

California Supreme Court Holds No Privity Between Hospital and Staffing Agency to Allow Claim Preclusion

Pre-Employment Drug Testing Not Compensable Under California Law Holds Ninth Circuit

California Courts Have Found Two Statutes Requiring Diversity in the Makeup of Public Company Boards of Directors Unconstitutional

California Supreme Court Rules Additional Penalties May Be Recoverable for Meal & Rest Period Violations

Exclusive Concurrent Jurisdiction Applies to Overlapping PAGA Actions

9th Circuit Rejects PAGA Objector’s Appeal

California Court of Appeal Upholds Enforcement of Non-Solicitation Covenant Based on the Statutory Exception for Transferring Ownership of a Business Interest

California Court of Appeals Rules Short Haul Drivers’ Claims Preempted by Federal Motor Carrier Safety Administration Rules

California Supreme Court Resolves Confusion Regarding the Burden Shifting Standard for Whistleblower Retaliation Claims

California Court of Appeal Reiterates Support of Rounding of Employee Time, Affirms Denial of Class Certification

Administrative Changes

Non-Emergency COVID-19 Standard Passed by Cal/OSHA

Jackson Lewis will continue to track changes that affect California employers in 2023. If you have questions about California workplace law compliance, contact a Jackson Lewis attorney to discuss.

As the year wraps up, we review some of the highlights of the California Workplace Law Blog with the top 10 most popular blog posts of 2022:

  1. Reminders Regarding Remote Employees in California
  2. High Times Ahead for Employers in California
  3. U.S. Supreme Court Declines Review of AB 5
  4. Proposition to Repeal PAGA Approved for November 2024 Ballot
  5. California Supreme Court Accepts Invitation to Weigh In on Employment Arbitration Agreements & PAGA
  6. California Supreme Court Rules Additional Penalties May Be Recoverable for Meal & Rest Period Violations
  7. Governor Rolls Back California COVID-19 Executive Orders & Cal/OSHA Releases Draft Permanent COVID-19 Standard
  8. Ask A Litigator: What Do Employers Need to Know About PAGA?
  9. Reminder Regarding California Expense Reimbursement & IRS Increase of Its Mileage Rate
  10. California Expands Pay Transparency and Reporting Obligations

On December 13, 2022, the City of Berkeley passed the Fair Workweek Employment Standards Ordinance on the second reading. The ordinance will take effect in January 2023; however, it will not become operative until 2024 according to the terms of the ordinance.

Covered Employers

The ordinance applies to any employer in the City of Berkeley with 10 or more employees in the city that is:

  • primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and employs 56 or more employees globally; or
  • primarily engaged in the restaurant industry, and employs 100 or more employees globally; or
  • a franchisee primarily engaged in the retail or restaurant industries and is associated with a network of franchises with franchisees employing in the aggregate 100 or more employees globally; or
  •  a not-for-profit corporation organized under Section 501 of the United States Internal Revenue Code in the industries specified under subsection (a)(1), (2), and (3) and employs 100 or more employees globally.

Covered Employee

Under the ordinance covered employee is defined as a person in a calendar week who performs at least two hours of work within the geographic boundaries of the city for a covered employer and is entitled to payment of minimum wage from any employer under the state requirements and is not exempt from payment of an overtime rate of compensation.

Obligations of Covered Employers

The ordinance includes several obligations for employers pertaining to scheduling, including the following:

  • Provide each employee with a good faith estimate in writing of the employee’s work schedule. The employee may submit a written request to modify the estimated work schedule, and the covered employer in its sole discretion may accept or reject the request and shall notify the employee of the covered employer’s determination in writing prior to or on the commencement of employment.
  • Provide its employees with at least two weeks’ notice of their work schedules by doing one of the following:

(1) posting the work schedule in a conspicuous place at the workplace that is readily accessible and visible to all employees; or

(2) transmitting the work schedule by electronic means, so long as all employees are given access to the electronic schedule at the workplace.

For new employees, a covered employer shall provide the new employee prior to or on their first day of employment with an initial work schedule. Thereafter, the covered employer shall include the new employee in an existing schedule with other employees.

  • Provide an employee written notice of any change to the employee’s posted or transmitted work schedule within 24 hours of a schedule change. This notice requirement shall not apply to any schedule changes the employee initiates.

Covered Employee Rights

Pursuant to the ordinance covered employees are provided certain rights pertaining to their schedule including the following:

  • Subject to certain exceptions, an employee has the right to decline any previously unscheduled hours that the covered employer adds to the employee’s schedule, and for which the employee has been provided advance notice of less than 14 days before the first day of any schedule.
  • Subject to certain limitations, before hiring new employees, including through temporary services or staffing agencies, a covered employer shall first offer additional hours of work to existing part-time employees.
  • Covered employees have the right to decline work hours that occur less than 11 hours after the end of the previous shift. An employee who agrees in writing to work hours less than 11 hours from the end of the previous shift shall be compensated at one and one-half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.
  • An employee has the right to request a modified work schedule, including but not limited to additional shifts or hours; changes in days of work or start and/or end times for the shift; permission to exchange shifts with other employees; limitations on availability; part-time employment; job sharing arrangements; reduction or change in work duties; or part-year employment.

Predictability Pay for Schedule Changes

Subject to certain exceptions, a covered employer shall provide an employee with the following compensation per shift for a previously scheduled shift that the covered employer adds or subtracts hours, moves to another date or time, cancels, or each previously unscheduled shift that the covered employer adds to the employee’s schedule:

(1) with less than 14 days notice, but 24 hours or more notice to the employee: one hour of predictability pay;

(2) with less than 24 hours notice to the employee, (i) When hours are canceled or reduced, four hours or the number of canceled or reduced hours in the employee’s scheduled shift, whichever is less; (ii) For additions and all other changes, one hour of predictability pay. The compensation required by this subsection shall be in addition to the employee’s regular pay for working such a shift.

Waiver through CBA

The requirements of the ordinance may be waived through a bona fide collective bargaining agreement but only if the waiver is set forth explicitly in such agreement in clear and unambiguous terms.

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

2022 brought several significant decisions from the California Supreme Court, from decisions about meal and rest period penalties to burden shifting for whistleblower retaliation claims.

Here are some of the cases currently pending before the state’s high court that employers should be watching and what they mean for employment law in the Golden State.

PAGA & Arbitration

Estrada v. Royalty Carpet Mills

In the underlying case, plaintiffs brought a Private Attorneys General Act (PAGA) claim and class claims primarily based on purported meal and rest period violations. The trial court dismissed the PAGA claim as “unmanageable” due to the number of individualized issues.

The Court of Appeal found courts do not have the discretion to strike a PAGA claim based on manageability. The Court of Appeal held doing so would also interfere with PAGA’s purpose as a law enforcement mechanism by placing an extra hurdle on PAGA plaintiffs that are not placed on the state.

Estrada was decided after another district in the California Court of Appeal held that trial courts do have inherent authority to narrow or strike PAGA claims based on manageability. The California Supreme Court’s decision will remedy the split between districts. If the Court overturns Estrada, it will provide employer-defendants with a powerful tool in PAGA actions.

Quach v. California Commerce Club, Inc.

At the trial level, the defendant, California Commerce Club, Inc., filed a petition to compel arbitration after 13 months of discovery.

Quach argued that Commerce Club had waived its right to arbitrate by waiting 13 months to move to compel arbitration, and by engaging in extensive discovery during that period. Quach claimed the delay prejudiced him by forcing him to expend time and money preparing for litigation.

The trial court agreed, finding Commerce Club had waived the right to arbitrate by propounding a “large amount of written discovery,” taking Quach’s deposition, and expending “significant time meeting and conferring.”

The Court of Appeal disagreed with the trial court, stating that the California Supreme Court has made clear that participation in litigation alone cannot support a finding of waiver, and fees and costs incurred in litigation alone will not establish prejudice on the part of the party resisting arbitration.

The California Supreme Court granted review on the question and is expected to resolve California’s test for waiver of the right to compel arbitration in light of the United States Supreme Court’s decision in Morgan v. Sundance, Inc., which held a party is not required to show prejudice to establish an opposing party’s waiver of its right to arbitrate.

The decision in Quach will provide clarity on the waiver issue and on the application of Morgan in the state courts.

Ramirez v. Charter Communications, Inc.

In this matter, Ramirez and Charter Communications, Inc. (Charter) were parties to an arbitration agreement. After Charter terminated Ramirez’s employment, Ramirez filed suit alleging claims under the Fair Employment and Housing Act. Charter moved to compel arbitration. Finding the arbitration agreement unconscionable, the trial court denied Charter’s motion and Charter appealed.

On appeal, Charter contended the trial court erred in concluding the arbitration agreement was unconscionable and in refusing to sever any provisions the court considered unconscionable.

The Court of Appeal affirmed the trial court’s order denying the motion to compel arbitration due to unconscionability, taking particular issue with the agreement’s provision for an award of attorney’s fees to the prevailing party on a motion to compel arbitration.

The California Supreme Court granted review on the question: did the Court of Appeal err in holding that a provision of an arbitration agreement allowing for recovery of interim attorney’s fees after a successful motion to compel arbitration was so substantively unconscionable that it rendered the arbitration agreement unenforceable?

The decision by the California Supreme Court will affect future enforcement of employment arbitration agreements, especially where the agreement’s terms include fee-shifting provisions. Regardless of the decision’s outcome, employers will need to review their agreements to ensure the terms cannot be interpreted as unfairly one-sided. Arbitration agreements should also contain severability clauses compliant with existing law.

Turrieta v. Lyft

In 2018, Plaintiffs Olson, Seifu, and Turrieta each filed a representative action against Lyft under PAGA. They alleged that Lyft misclassified its California drivers as independent contractors rather than employees in violation of multiple provisions of the Labor Code. Following mediation in 2019, Turrieta and Lyft reached a settlement.

After Turrieta moved for court approval of the settlement, Olson and Seifu sought to intervene in the matter and object to the settlement. They argued that Lyft had engaged in a “reverse auction” by settling with Turrieta for an unreasonably low amount and that the settlement contained other provisions that were unlawful and inconsistent with PAGA’s purpose. By settling Turrieta’s PAGA claims, encompassing all employees similarly aggrieved by Lyft’s alleged misclassification, Lyft foreclosed Olson and Seifu from pursuing their own PAGA suits on the same grounds.

The trial court rejected the appellants’ requests to intervene, finding that the appellants lacked standing.

The Court of Appeal agreed with the trial court that Olson and Seifu’s status as PAGA plaintiffs in separate actions does not confer standing to move to vacate the judgment or challenge the judgment on appeal.

The Supreme Court limited review to the following issue: do plaintiffs who brought representative actions under PAGA have the right to intervene, object, or move to vacate a judgment in a separate PAGA case that would effectively terminate their own actions?

The decision will greatly affect the future handling of competing or overlapping PAGA actions and the strategies defendants may employ to efficiently resolve them.

Discrimination, Harassment & Retaliation

People ex rel. Garcia-Brower v. Kolla’s Inc.

In this case, a complainant filed a timely retaliation complaint with the Division of Labor Standards Enforcement (“DLSE”) alleging that when she complained to her employer about non-payment of wages, her employer threatened to call immigration authorities and fired her. The DLSE determined that respondents had violated several Labor Code sections, including section 1102.5, which prohibits retaliation for “disclosure” of a violation of law to a governmental agency, to “a person with authority over the employee,” or to “another employee who has the authority to investigate …” the alleged violation of law.  The DLSE ordered the respondents to pay lost wages and civil penalties for violation of sections 1102.5 and 98.6. The respondents did not comply.

On October 17, 2017, the Labor Commissioner filed an enforcement action against the respondents under Labor Code section 98.7(c)(1). Respondents did not file an answer, and the Labor Commissioner sought to take a default judgment.

The trial court ruled that the Labor Commissioner had not stated a claim under section 1102.5 because the complainant had not approached a governmental agency until after her termination.

The Court of Appeal disagreed with the trial court’s reasoning, but nevertheless affirmed the denial of the section 1102.5 claim on the basis that the DLSE did not properly allege “disclosure” to her supervisor. The court reasoned that it was obvious from the context that the employer already knew about the violation, and thus no “disclosure” was made.

The question before the California Supreme Court is limited to whether section 1102.5(b) protects employees from retaliation for disclosing unlawful activity when the information is already known to that person or agency.

Depending on the direction the California Supreme Court takes, its holding will affect the type of complaints that can serve as grounds for a whistleblower action and the defenses available to employers.

Bailey v. San Francisco District Attorney’s Office, et al.

In the underlying case, an employee with the San Francisco District Attorney’s Office alleged discrimination, harassment, and derivative claims based upon a single incident in which a co-worker allegedly used a highly offensive racial slur. At the trial level, the District Attorney’s office was awarded summary judgment. The court ruled this single incident by a non-supervisor was not severe or pervasive enough to permit the plaintiff’s claims to proceed to a trial. The California Court of Appeal affirmed the decision.

In a rare less-than-unanimous vote, the California Supreme Court granted review on whether the Court of Appeal properly affirmed summary judgment in the defendant’s favor on the plaintiff’s claims.

Employers should watch this case for how the decision will affect the standards for hostile work environment claims and the level of severity required to establish a hostile work environment.  

Wage and Hour

Iloff v. LaPaille

In this case, the plaintiffs filed wage claims with the Division of Labor Standards Enforcement (DLSE) against defendants Cynthia LaPaille and Bridgeville Properties, Inc. (BPI) for unpaid wages in violation of the Labor Code. The plaintiffs received a favorable order from the Labor Commissioner, and BPI appealed to the superior court. In the subsequent superior court action, the plaintiffs were represented by the Labor Commissioner’s office.

Following a de novo trial on the wage claims, the court found plaintiffs were entitled to unpaid wages and certain penalties but rejected the plaintiffs’ unfair competition law claims under Business and Professions Code § 17200 (the UCL). The court declined to award the plaintiffs liquidated damages, penalties for violations of sick leave notice requirements, and did not impose personal liability on BPI’s CEO, Cynthia LaPaille.

On review, the Court of Appeal reversed the trial court, holding that LaPaille may be held personally liable due to her managerial role with BPI under Labor Code § 558.1(a), which expressly permits personal liability for individuals “acting on behalf of an employer.” 

The Court of Appeal affirmed, however, the denial of liquidated damages for failure to pay minimum wages under Labor Code § 1194.2(a). This statute allows the court to reduce or eliminate such damages where the employer can show it acted in “good faith” with “reasonable grounds” for believing it did not violate the law. Here, because the plaintiffs initiated the idea of working in exchange for rent, rather than wages, as an independent contractor, and the unsettled status of the law on this subject at the time, the trial court acted within its discretion in finding the defendants acted in good faith.

The Court similarly affirmed the denial of awards under the UCL. Because the UCL provides only for equitable relief, the trial court had discretion as to whether such an award would be in the interest of justice, even where Labor Code violations exist. Because the parties appeared to lack understanding as to the plaintiff’s entitlement to wages for the services they performed for BPI, the Court of Appeal found the trial court properly exercised its discretion.

The Court of Appeal also held Plaintiffs do not have a private right of action for sick leave penalties, which require independent action by the Labor Commissioner or Attorney General’s office. Even though the plaintiffs were represented by the Labor Commissioner in their superior court action, this did not suffice to permit their pursuit of sick leave penalties.

 The California Supreme Court granted review limited to the following issues:

(1) Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish its “good faith” defense to liquidated damages?

(2) May a wage claimant prosecute a paid sick leave claim in a de novo wage claim trial conducted pursuant to Labor Code section 98.2?

Employers should watch this matter for not only how it may affect potential damages in wage and hour litigation for seemingly innocent violations, but also the effect it could have on appeals from Labor Commissioner decisions.

Workplace Safety

Kuciemba v. Victory Woodworks

In the matter of Corby and Robert Kuciemba vs. Victory Woodworks, Inc., Mr. and Mrs. Kuciemba both tested positive and were hospitalized with COVID-19. Though Mr. Kuciemba was no longer an employee of Victory Woodworks at the time he tested positive, he claimed that he contracted the virus from his former worksite and filed a claim for workers’ compensation. Mrs. Kuciemba also filed a lawsuit against Victory Woodworks on various negligence theories.

The district court rejected Mrs. Kuciemba’s argument, finding that she failed to plead a plausible claim. Specifically, the Court found the employer’s duty was only to provide a safe workplace to its employees.  The Court found this duty did not extend to nonemployees who are later found to have contracted a viral infection away from the workplace.

The Kuciembas appealed to the 9th Circuit of the U.S. Court of Appeals. The 9th Circuit asked the California Supreme Court to weigh in on two questions:

1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer?

2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19?

Employers should watch this case, as the California Court of Appeal recently decided in a separate but similar case that an employer may be sued for an employee’s exposure to COVID-19. The decision by the California Supreme Court will clarify employers’ potential liability to not only employees but their households for exposure to COVID-19 in the workplace.

Jackson Lewis continues to track California case law affecting employers. If you have questions about any of the cases pending before the California Supreme Court or related issues, contact a Jackson Lewis attorney to discuss.

On December 15, 2022, the Cal/OSHA Standards Board held its final meeting of 2022 and adopted the COVID-19 Prevention Non-Emergency Regulations. The COVID-19 Emergency Temporary Standards (ETS)will continue to remain in effect while the Office of Administrative Law (OAL) reviews the non-emergency standard.

Once approved by OAL, the non-emergency standard will remain in effect for two years.

Changes from ETS

  • Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. For example, the definition of an “exposed group” still contains a “momentary pass-through” exception. Previously, this exception required that all individuals be masked to take advantage of this exception.  Now, it has been broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating.
  • Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.

Continuation from ETS

  • Testing and Notice Requirements Remain. Under the new permanent standard, employers will still be required to provide testing and employee notices after exposure. This is in line with recent legislation extending certain COVID-19 exposure requirements until 2024.
  • Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.
  • Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.

Exclusion Pay

As currently drafted, the new standards do not require employers to provide exclusion pay.  During the December 15th hearing to adopt the new standards, the Standards Board members expressed dissatisfaction with this change.  The Board indicated that it would add exclusion pay to the Board’s January 2023 agenda. Employers will have to wait to see if this provision is added back to the new non-emergency standard.

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.

Over the summer, several cities considered and even passed a $25.00 minimum wage for healthcare workers.

The Cities of Inglewood and Duarte sent the ordinances for consideration to voters. Only the City of Inglewood measure was successful.

The new $25.00 minimum wage applies to private-sector healthcare workers who work in hospitals, integrated health systems, and dialysis clinics in Inglewood.

The new minimum wage will apply to clinicians, nurses, certified nursing assistants, aides, technicians, maintenance workers, janitorial or housekeeping staff, groundskeepers, guards, food services workers, laundry workers, and pharmacists but does not include managers or supervisors.

The ordinance will then have to go through the process of being affirmed by the City Council and will take effect 30 days after approval by the Council.

Since the summer, Los Angeles and Long Beach’s health worker minimum wage have been suspended pending ballot measures in 2024.

Jackson Lewis will continue to track changes in state and local regulations affecting employers. If you have questions about the healthcare minimum wage ordinances or related issues, contact a Jackson Lewis attorney to discuss.

At the start of 2022, a new version of California’s COVID-19 Supplemental Paid Sick Leave (SPSL) was passed and initially planned to expire on September 31, 2022. But before it could expire, the legislature extended SPSL with some minor changes to continue through the end of 2022.  

The question many employers have as the year runs out is, will SPSL be extended further?

The answer at this point is no. The California legislature did head back early for a special session, but thus far, no legislation has been proposed to extend the statewide SPSL. And in October, Governor Newsom announced a plan to end the COVID-19 State of Emergency on February 28, 2023, highlighting the state’s view of plan to move out of a crisis stage.

While it appears that the state SPSL will expire, there are still local COVID-19 supplemental paid sick leave ordinances in effect in the Cities of Oakland, Long Beach, Los Angeles, and the County of Los Angeles.

All of the ordinances except Long Beach specify they will expire 2 weeks after the “COVID-19 local emergency” expires, which is separate from the state of emergency. The Long Beach City Council will determine the sunset date based on quarterly reports from the City Manager. The City of Los Angeles has announced it will lift its state of emergency on February 1, 2023, which would mean the City of Los Angeles’ supplemental paid sick leave would expire on February 15, 2023. No other cities have indicated when they will lift their local emergency.

In addition to local SPSL, in October San Francisco voters passed a new Public Health Emergency Leave Ordinance (PHELO), which provides leave for employees of employers with 100 or more employees worldwide related to public health emergencies. Currently, COVID-19 continues to qualify as a public health emergency for purposes of the PHELO.

Jackson Lewis will continue to track leave laws that affect California employers. If you have questions about COVID-19 SPSL or related leave issues, contact a Jackson Lewis attorney to discuss.

As defined by Labor Code section 350, a “tip” or “gratuity” includes any money that has been paid, given to, or left for an employee by a patron of a business over and above the actual amount due to the business for services rendered. Tips or gratuities are distinguishable from “service charges,” which are amounts a patron is required to pay based on a contractual agreement or a specified required service amount.

Labor Code section 351 provides that employers may not take or receive an employee’s tips. Unlike federal law, California law also prohibits employers from using tips as a “credit” towards the obligation to pay minimum wage.  Federal regulations relating to “tip credits” do not apply in California.

Because tips and gratuities are additional amounts left by customers and not payments for services rendered, they are not included in the calculation of an employee’s regular rate of pay used in overtime pay and meal or rest period premiums.

While employers may not take or receive tips, the California Labor Commissioner and California courts have opined that mandatory tip-pooling policies are permissible.  The tip pool may not be used to compensate owners, managers, or supervisors of the business.   There is no per se rule regarding the percentage of tips that an employer can mandate be contributed to a pool.  Issues such as which employees may participate in the tip pool are fact-specific and generally dependent on things like the chain of service and industry norms.  In general, employees who have no customer or client interaction and are not “in the chain of service” should not be included in the tip pool.

If you have questions about handling employee tips and tip pooling, contact a Jackson Lewis attorney to discuss.

On December 31, 2022, Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) finally sunset. However, the Standards Board has been working to pass a permanent standard to ensure it is in place before the expiration of the ETS. The Board has announced it will be voting on the permanent standard at its upcoming meeting on December 15th.

Of note, while it is called a permanent standard, the proposed standard includes a two-year sunset, consistent with the recognition that COVID-19 is now moving into its endemic phase.

As employers prepare for a permanent standard here are some of the highlights of what will stay the same and change from the ETS.

Changes from ETS

  • End of Exclusion Pay.  One of the biggest changes in the permanent standard is that exclusion pay will no longer be required to compensate employees who miss work due to an employer-caused COVID-19 exposure.
  • Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. The definition of an “exposed group” still contains a “momentary pass-through” exception. This exception is being broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating, provided that it is not a work location, working area, or a common area at work.
  • Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.

Continuation from ETS

  • Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.
  • Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.

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.