While April has meant the return to the office for many employees across the state, many are remaining remote despite the lifting of statewide COVID-19 restrictions.

Employers with remote employees in California need to ensure they are complying with the state’s employment laws when it comes to those working from home. For purposes of the state’s wage and hour laws, the home office is generally treated the same as the regular office.

California Labor Code Section 2802 requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” For remote employees, what an employer may need to reimburse could include internet and cell phone services. Prior California court decisions have concluded employers must reimburse for reasonable portions of an employee’s cell phone use when the employee uses their cell phone for work. However, reimbursement may not be required when an employer provides devices to employees, even if the employee ultimately elects to use their own personal device.  Certain reimbursements may also not be required for those employees who have the option to work in the office and voluntarily choose to work from home.

Tracking time for employees who are not exempt from overtime becomes even more important for remote employees. California’s wage orders define hours worked as “the time during which the employee is subject to control of the employer” regardless of whether work is being performed.  Moreover, the Wage Orders require employers to track all time worked, specifically when the employee “begins and ends each work period” and all meal periods.

California’s meal and rest period requirements also apply to employees who are working remotely. “Non-exempt employees are entitled to a 10-minute paid rest period for every 4 hours worked (or major fraction thereof).” Employees must also receive a 30-minute unpaid meal break for every five hours worked. Though meal and rest periods may be hard to track for a remote employee, it is important that employers communicate with the employees the company’s policy and check in with employees to ensure compliance.

If you have questions about compliance with California employment law and remote employees contact a Jackson Lewis attorney to discuss.

On April 21, 2022, Cal/OSHA’s Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS).

The third adoption makes some changes to the ETS previously in effect. Some of the more significant changes include:

  • Elimination of the requirement that face coverings pass the “light test” (g.does not let light pass through when held up to a light source).
  • Removal of cleaning and disinfection requirements.
  • Addition of a new term, “returned case,” which means an individual who returns to work after testing positive for COVID-19 and did not develop any COVID-19 symptoms after a return.
  • Employers are not required to make COVID-19 testing available to returned cases.
  • Removal of some of the cleaning and disinfection requirements previously required.
  • Deferment to California Department of Public Health guidance for exclusion and return to work criteria.

The amended ETS will take effect on May 6, 2022. Per the Governor’s prior Executive Order this version of the ETS will remain in effect until December 31, 2022.

Cal/OSHA intends to post new Frequently Asked Questions to support the revised ETS shortly.

If you have questions about the Cal/OSHA emergency temporary 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.

It is important that employers in California not only know the multitude of statewide employment regulations but also familiarize themselves with local ordinances in the California cities where employees work.

The following are some of the important ordinances employers with operations in the City of San Jose should be aware of.

Minimum Wage

Effective January 1, 2022, the minimum wage for employers within the geographic boundaries of San Jose or who are subject to the San Jose Business License Tax, is $16.20, regardless of the size of the business. Employers are required to post official notice of the minimum wage in a place where employees can read easily.

Opportunity to Work Ordinance

This law took effect in 2017 and requires employers to offer additional hours of work to current part-time employees who are capable of performing additional work prior to hiring more employees, including subcontractors or the use of temporary staffing services.

The ordinance covers employers of 36 or more employees. The number of employees includes both full and part-time employees within the city of San Jose.

Employers are recommended to take the following steps to ensure compliance:

  1. Identify the need for additional hours of work to be performed.
  2. Determine how to communicate an offer of additional hours, timeline, and process for response to qualified existing part-time employees.
  3. Based on employees’ response to the offer of additional hours, the employer determines how best to disperse additional hours to existing employees.
  4. If not all hours can be dispersed to existing part-time employees, the employer can hire a new employee or employees.

Covered employers are required to post the official notice informing employees of their rights under the ordinance.

The City of San Jose has also published a Frequently Asked Questions page for the ordinance.

If you have questions about compliance with San Jose’s local ordinances or related issues, please contact the Jackson Lewis attorney with whom you often work.

“The EEOC is keenly aware that [artificial intelligence and algorithmic decision-making] tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.”

Statement from EEOC Chair Charlotte A. Burrows in late October 2021 announcing the employment agency’s launching an initiative to ensure artificial intelligence (AI) and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws.

The EEOC is not alone in its concerns about the use of AI, machine learning, and related technologies in employment decision-making activities. On March 25, 2022, California’s Fair Employment and Housing Council discussed draft regulations regarding automated-decision systems. The draft regulations were informed by testimony at a hearing last year the Department of Fair Employment and Housing (DFEH) held on Algorithms & Bias.

Algorithms are increasingly making significant impacts on people’s lives, including in connection with important employment decisions, such as job applicant screening. Depending on the design of these newer technologies and the data used, AI and similar tools risk perpetrating biases that are hard to detect. Of course, the AI conundrum is not limited to employment. Research in the US and China, for example, suggests AI biases can lead to disparities in healthcare.

Under the draft regulations, the DFEH attempts to update its regulations to include newer technologies such as algorithms it refers to as an “automated decision system” (ADS). The draft regulation defines ADS as: a computational process, including one derived from machine-learning, statistics, or other data processing or artificial intelligence techniques, that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision making that impacts employees or applicants.

Examples of ADS include:

  • Algorithms that screen resumes for particular terms or patterns
  • Algorithms that employ face and/or voice recognition to analyze facial expressions, word choices, and voices
  • Algorithms that employ gamified testing that include questions, puzzles, or other challenges are used to make predictive assessments about an employee or applicant to measure characteristics including but not limited to dexterity, reaction time, or other physical or mental abilities or characteristics
  • Algorithms that employ online tests meant to measure personality traits, aptitudes, cognitive abilities, and/or cultural fit

The draft regulations would make it unlawful for an employer or covered entity to use qualification standards, employment tests, ADS, or other selection criteria that screen out or tend to screen out an applicant or employee or a class of applicants or employees based on characteristics protected by the Fair Employment and Housing Act (FEHA), unless the standards, tests, or other selection criteria, are shown to be job-related for the position in question and are consistent with business necessity.

The draft regulations include rules for both the applicant selection and interview processes. Specifically, the use of and reliance upon ADS that limit or screen out or tend to limit or screen out applicants based on protected characteristics may constitute a violation of the FEHA.

The draft regulations would expand employers’ record-keeping requirements by requiring them to include machine-learning data as part of the record-keeping requirement, and by extending the retention period for covered records under the current regulations from two to four years. Additionally, the draft regulations would add a record retention requirement for any person “who engages in the advertisement, sale, provision, or use of a selection tool, including but not limited to an automated-decision system, to an employer or other covered entity.” These persons, who might include third-party vendors supporting employers’ use of such technologies, would be required to retain records of the assessment criteria used by the ADS for each employer or covered entity.

During the March 25th meeting, it was stressed that the regulations are intended to show how current law applies to new technology and not intended to propose new liabilities. This remains to be seen as the effect of these new regulations, if adopted, could expand exposure to liability or at least more challenges to employers leveraging these technologies.

The regulations are currently in the pre-rule-making phase and the DFEH is accepting public comment on the regulations. Comments about the regulations can be submitted to the Fair Employment and Housing Council at FEHCouncil@dfeh.ca.gov.

Jackson Lewis will continue to track regulations affecting employers. If you have questions about the use of automated decision-making in the workplace or related issues, contact the Jackson Lewis attorney with whom you regularly work.

Though California has mostly lifted COVID-19 requirements statewide, the Cal/OSHA Standards Board is not planning to let the COVID-19 Emergency Temporary Standard (ETS) expire. Per Governor Newsom’s executive order, the expiration of the second readoption of the ETS was extended to May 6, 2022, but the Cal/OSHA’s Standards Board has posted a notice that it plans to readopt a third version of the ETS at its upcoming meeting on April 21, 2022.

The proposed third adoption makes some changes to the ETS previously in effect. Some of the more significant changes include:

  • Elimination of the requirement that face coverings pass the “light test” (e., does not let light pass through when held up to a light source).
  • Addition of a new term, “returned case,” which means an individual who returns to work after testing positive for COVID-19 and did not develop any COVID-19 symptoms after a return.
  • Employers are not required to make COVID-19 testing available to returned cases.
  • Removal of some of the cleaning and disinfection requirements previously required.
  • Deferment to California Department of Public Health guidance for exclusion and return to work criteria.

If passed, the third readoption would be the final version of the ETS and per the Governor’s Executive Order may not remain in effect beyond December 31, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

On September 30, 2020, Governor Newsom signed Assembly Bill (AB) 979, which required publicly held corporations headquartered in California to diversify their boards of directors with directors from “underrepresented communities” by December 31, 2021. AB 979 followed similar legislation in Senate Bill (SB) 826, which required gender diversity on boards of directors.

SB 826 and AB 979 have faced significant legal challenges. However, until recently, none of the litigation challenging the two laws has resulted in a court determination.

Robin Crest, et al v. Alex Padilla, often referred to as Crest II, is a lawsuit filed by three California taxpayers in Los Angeles Superior Court against the California Secretary of State.  The suit sought to prevent the State of California from spending taxpayer funds or using taxpayer-financed resources, to enforce AB 979 and to declare the statute unlawful.

Both the State of California and the Plaintiffs filed motions for summary judgment, asking the court to issue a judgment in their favor as a matter of law.  In their motion, the Plaintiffs argued AB 979 violates California’s Constitution because the law requires subject corporations to have a specific number of directors based upon race, ethnicity, sexual preferences, and transgender status.  In its motion, the State of California challenged the Plaintiffs’ legal standing to challenge the law.  The State of California also argued AB 979 did not violate the California Constitution.

The Superior Court held a hearing on both motions on March 14, 2022 and issued a ruling on April 1, 2022. The court granted Plaintiffs’ motion and denied the State’s motion.  In its ruling, the court explained the statute violated the California Constitution’s Equal Protection Clause.  The court found the statute treated similarly situated individuals differently based upon their membership in certain racial, sexual orientation, and gender identity groups, and that the State failed to (1) identify a compelling state interest to justify the different treatment; and (2) establish that the statute reflected the least restrictive means for accomplishing the California Legislature’s goals in enacting the statute.

The ruling means that the State is precluded from enforcing AB 979 at this time.  It is unclear whether the State will appeal the Superior Court’s ruling. However, if it does so, the injunction against the State using taxpayer funds may remain in place until a further ruling.

If you have questions regarding compliance with AB 979 or SB 826 or related issues regarding corporate compliance, contact a Jackson Lewis attorney to discuss.

In December 2021, the U.S. Supreme Court agreed to hear arguments in Viking River Cruises v. Moriana (Viking). The question presented in Viking is whether the Federal Arbitration Act (FAA) requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including representative claims under California’s Private Attorneys General Act (PAGA).

This case arose out of an action in California state court in which an employee had previously signed an arbitration agreement with her employer, Viking River Cruises, that included a waiver to bring or participate in representative actions including under PAGA. Plaintiff filed suit in state court, and both the state court and the California Court of Appeal relied on the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles LLC, to decline to enforce the representative action waiver and deny compelling individual arbitration of the PAGA claim. The California Supreme Court declined to consider the case.

On March 30, 2022, the U.S. Supreme Court heard oral arguments in Viking.  Viking River Cruises’ arguments focused on U.S. Supreme Court precedent establishing the foundational principle that when parties agree to resolve their disputes by bilateral arbitration those agreements are fully enforceable under the FAA and preclude class or collective actions.  Viking River Cruises argued that PAGA actions have many of the same attributes as class actions and collective actions, particularly the notion that the plaintiff seeks to amass and adjudicate alleged violations of the California Labor Code of a large number of other employees.  Viking River Cruises argued that such actions are inconsistent with the parties’ agreement to arbitrate claims bilaterally on an individual basis, thereby triggering preemption under the FAA.

Viking River Cruises faced the most resistance from Justices Breyer, Kagan, and Sotomayor, who asked the bulk of the questions during arguments.  These Justices seemed troubled that by agreeing to bilateral arbitration a plaintiff would be excluded not only from arbitrating a PAGA claim but also from bringing it to court.  Justices Kagan and Sotomayor specifically inquired whether this would effectively eliminate the State of California’s chosen mechanism for enforcing compliance with its Labor Code.

Where the U.S. Supreme Court ultimately lands on this issue will have important consequences on employers in California.  As Viking River Cruises noted in its closing remarks during oral argument, an average of “17 PAGA complaints are filed every day.”  A decision is expected by July 2022.

Jackson Lewis will continue to track cases affecting employers in California and around the nation. If you have questions about PAGA or arbitration agreements, reach out to the Jackson Lewis attorney with whom you regularly work.

Employers should have a comprehensive plan regarding sexual harassment prevention in the workplace, which includes training for all employees. Under current California law, employers with five or more employees are required to provide two hours of sexual harassment prevention training to supervisors and managers and one hour of sexual harassment prevention training to non-supervisory employees. All training must take place in a classroom setting, through interactive E-learning, or a live webinar. If conducted through E-learning, the training must include instructions on how to contact a trainer who can answer questions within two business days.

What is Sexual Harassment

The California Department of Fair Employment and Housing (DFEH) defines sexual harassment as “unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature.” This encompasses many behaviors, including leering, making sexual gestures, using derogatory comments, touching, offering employment benefits in exchange for sexual favors, or threatening retaliatory action after receiving a negative response to sexual advances.

Time for Training

Sexual harassment prevention training must occur once every two years, either from the date of completion of the last training.

For supervisory and managerial employees, training must be done within six months of assuming their position. Similarly, training for new nonsupervisory employees must occur within six months from their date of hire. Seasonal or temporary employees, who are hired for a duration of less than six months, are required to be trained within thirty (30) calendar days from the date of hire or within 100 hours worked, whichever occurs first.

Content of Training

Sexual harassment training programs are required to explain the following:

  • The definition of sexual harassment under the Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964 (Title VII);
  • The statutes and case-law prohibiting and preventing sexual harassment;
  • The types of conduct that can be sexual harassment;
  • The remedies available for victims of sexual harassment;
  • Strategies to prevent sexual harassment;
  • Supervisors’ obligations to report harassment;
  • Practical examples of harassment;
  • The limited confidentiality of the complaint process;
  • Resources for victims of sexual harassment, including to whom they should report it;
  • How employers must correct harassing behavior;
  • What to do if a supervisor is personally accused of harassment;
  • The elements of an effective anti-harassment policy and how to use it;
  • The definition of “abusive conduct” under Government Code section 12950.1, subdivision (g)(2); and
  • A discussion of harassment based on gender identity, gender expression, and sexual orientation, shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

Additionally, any training must also include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

Who May Provide Training

Sexual harassment prevention training must be conducted by a qualified trainer. The three types of qualified trainers are:

(1) attorneys, who have been licensed by the State Bar for at least two years and whose practice includes employment law;

(2) human resource professionals or harassment prevention consultants with at least two years of practical experience in designing or conducting training on discrimination, retaliation, and sexual harassment prevention, responding to sexual harassment or other discrimination complaints, investigating sexual harassment complaints, or advising employers or employees about discrimination, retaliation, and sexual harassment prevention; or,

(3) higher education instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the FEHA or Title VII.

California state agencies do not issue licenses or certificates validating a trainer’s qualifications. Therefore, it is important to utilize a qualified trainer from one of the approved categories who meet the DFEH’s standards.

Recordkeeping Requirements of Training

To track compliance, employers are required to keep documentation of the training it has provided its employees for a minimum of two years. The records should include: the names of the employees trained, the date of training, the sign-in sheet, a copy of all certificates of attendance or completion, the type of training, a copy of all written or recorded materials that comprise the training, and the name of the training provider.

If you need to provide your employees with sexual harassment prevention training or have issues related to harassment prevention, contact a Jackson Lewis attorney on how we can assist.

San Francisco’s Family Friendly Workplace Ordinance was enacted in 2014 and provides employees with the right to request flexible or predictable work arrangements to assist with caregiving responsibilities.  Initially, the ordinance applied to requests to care for a child or a parent over age 65.

The ordinance applies to employers with 20 or more employees, regardless of location.

Employees of covered employers are eligible if they are (1) employed in San Francisco, including those employees who telework from outside of San Francisco  (2) have been employed for six months or more by their current employer, and (3) work at least eight hours per week on a regular basis.

The amended ordinance provides that:

  • A covered employee shall be provided a flexible or predictable work arrangement upon notice of the employee’s need for such arrangement unless it would cause the employer undue hardship.
  • Require an employer that does not approve a flexible or predictable work arrangement to engage in an interactive process with the employee to attempt in good faith to determine a mutually acceptable arrangement.

Under the amendments, a covered employee will be allowed flexible or predictable work arrangements to care for any family member age 65 or older, rather than specifically a parent.

The amendments also increase some of the San Francisco’s Office of Labor Standards Enforcement’s ability to enforce the ordinance.

The amendments to the Family Friendly Workplace Ordinance will be operative on July 12, 2022.

If you need assistance with compliance with the Family Friendly Workplace Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

Recently the U.S. Equal Employment Opportunity Commission (EEOC) released new guidance regarding discrimination against employees with caregiving responsibilities for family members. California similarly has a pending bill, Assembly Bill (AB) 2182, which seeks to add “family responsibilities” as a protected class under the Fair Employment and Housing Act (FEHA).

If passed, the bill would prohibit employment discrimination on account of family responsibilities, defined as obligations of an employee or applicant to provide care for a minor child or care recipient. A care recipient includes a family member or household member of an employee who relies on the employee or applicant for medical care or assistance with activities of daily living.

Under the proposed bill, it would be unlawful for an employer to fail to make reasonable accommodations for the known family responsibilities of an applicant or employee related to specified obligations, or to retaliate or otherwise discriminate against a person for requesting an accommodation.

If you have questions about AB 2182, or issues related to reasonable accommodations in the workplace contact a Jackson Lewis attorney to discuss.