At the end of April, the Cal/OSHA Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). The revised version of the ETS took effect on May 6, 2022.

As promised when passed, Cal/OSHA has released updated guidance to assist with this version of the ETS that expires January 1, 2023.

Cal/OSHA posted an update to the Revisions to the ETS FAQ. This FAQ details the changes in the May 6th version of the ETS and requirements from prior ETS that remain. There is a separate General COVID-19 ETS FAQ that responds more to the application of the ETS and has been updated to conform to the recent changes in the ETS.

The Cal/OSHA Isolation and Quarantine Fact Sheet has also been updated to reflect changes in the revised ETS. The Fact Sheet includes an easy reference table that explains when employees must be excluded from the workplace, depending on whether they test positive for COVID-19 or have close contact with positive cases.

Finally, the Cal/OSHA Fact Sheet on “What Employers Need to Know” has been updated for the amendments to the ETS that went into effect May 6th. The following is a summary:

  • Face Coverings – Face covering requirements are the same for all employees regardless of vaccination status and are no longer required in all indoor locations. The guidance now also defers to California Department of Public Health (CDPH) masking requirements.
  • Respirators – Employers must provide respirators to employees who request them for voluntary use regardless of vaccination status.
  • Cleaning and Disinfecting – The ETS no longer includes any cleaning and disinfecting requirements.
  • Testing and Exclusion
    • Employers are now required to make COVID-19 testing available at no cost and during paid time to employees with COVID-19 symptoms regardless of vaccination status and regardless of whether there is a known exposure. COVID-19 testing must also be made available to employees who had a close contact in the workplace, during outbreaks, and during major outbreaks.
    • The detailed prescriptive requirements for exclusion of employees after close contact have been deleted. Instead, employers must review CPDH guidelines for individuals who had close contact and implement quarantine and other measures in the workplace to prevent COVID-19 transmission in the workplace.
    • The requirements for employees who test positive for COVID-19 have been updated to reflect the most recent CDPH isolation and quarantine guidelines. Regardless of vaccination status, positive employees can return to work after 5 days if the employee has a negative test, symptoms are improving, and they wear a face covering at work for an additional 5 days. Otherwise, most employees can return after 10 days.
  • Definitions
    • “Close contact” and “infectious period” are now defined so that their meaning will change if CDPH changes its definition of the term in a regulation or order. This will allow more flexibility and consistency with CDPH.
    • “COVID-19 test” was simplified to make it easier to use self-administered and self-read tests. A video or observation of the entire test process is no longer necessary; just a date/timestamped photo of the test result will now be sufficient.
    • “Fully vaccinated” was deleted as this term is no longer used in the regulations. All protections now apply regardless of vaccination status and requirements do not vary based on an employee’s vaccination status.

If you have questions about the Cal/OSHA ETS 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.

Under California law, employees normally accrue daily overtime for hours worked over 8 hours in a day. Alternative workweek schedules (AWS) permit workplaces to adopt different schedules longer than 8 hours without accruing overtime. This may be needed due to health and safety concerns or industry practices that mandate longer shifts. It may also be desired to provide employees with greater flexibility by shortening the overall workweek.

However, the process is not as easy as the company unilaterally deciding to have an AWS. California requires specific steps to be followed for a valid AWS.

Is an AWS right for your workplace?

An initial consideration is whether the business needs flexibility in scheduling its workers. An AWS may not work for employers who need to vary employees’ work hours or days worked.      An AWS must be a fixed schedule of days of the week and start and end times, which can be rotational shift schedules or seasonal shift schedules as long as they are “regularly recurring.”

Does the AWS process apply to your business?   

The business must determine if the work unit seeking an alternative workweek arrangement is permitted to elect an AWS. Only employees whose work falls under Wage Orders 1 through 13, 16, and 17 are permitted to have AWS. Even if the work falls under a wage order that allows for AWS, there are differences within the orders in the types of schedules that may be adopted and in the election procedures. A business must determine the appropriate procedures for the business unit seeking the AWS.

What steps does a business need to take to have an AWS? 

The following is a general overview of the AWS process but does not provide comprehensive detail of all steps.

The business must identify employees eligible for the AWS. The Labor Code defines a “work unit” as a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision. A work unit may even consist of an individual employee as long as the criteria for an identifiable work unit are met.

The business will then proceed with an AWS election. This is a multistep process that allows employees to vote on whether to adopt an AWS.

In this process the employer provides the affected work unit or units with a proposal of the AWS in writing, designating the number of days in the workweek and the number of hours in the work shift.

Then the employer must hold a pre-election meeting with the affected business unit a minimum of 14 days prior to the election to discuss the effects of the proposed AWS. If any affected employees do not attend the meeting, the proposal must be mailed to those employees.

After the 14 days have elapsed from the initial pre-election meeting, the employer must hold a secret ballot election. The election must be held during regular working hours at the employees’ work site and cost paid by the employer.  At least two-thirds of the affected work unit must vote in favor of the AWS in order for it to be adopted.

If two-thirds of the work unit vote in favor of the AWS, the results must be reported to the California Department of Industrial Relations (DIR) within 30 days of finalizing the results.

The company must also give notice to the affected workers and provide a specific date on which the AWS will be implemented. The implementation date must be at least 30 days after the announcement of the final results of the secret ballot.

What Kind of Records Must Be Kept?

An employer implementing an AWS should maintain all copies of the proposals, employee meeting communications, and election results. The employer should also keep other supporting information and documentation.

Other Considerations

It is important to keep in mind that the implementation of an AWS has no impact on California meal or rest break requirements.  Employers must still adhere to the same meal and rest period timing and provisions.

Further, an AWS does not completely eliminate the employer’s obligations to pay overtime.  For example, if the employee on an AWS works beyond or less than the scheduled hours of the agreed-upon AWS, the employee may be entitled to overtime or double-time pay.

If you have questions about implementing an AWS or related issues with overtime in California, contact a Jackson Lewis attorney to discuss.

Early in the 2022 Legislative Session, Assembly Bill (AB) 2932 was introduced and was known as the four-day workweek bill.  It sought to change when an employee would be paid one and one-half times their regular rate of pay by redefining the workweek.

Under current California law, overtime may be earned at one- and one-half times the employee’s regular rate of pay for: (1) any work in excess of 8 hours in a workday; (2) any work in excess of 40 hours in any one workweek; and (3) the first 8 hours worked on the 7th day of work. In addition, all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek are paid at double the regular rate of pay.

AB 2932 proposed that employees would be paid one- and one-half times their regular rate of pay for work in excess of 32 hours in a workweek instead of 40 hours. The bill would have allowed employers with less than 500 employees to continue paying overtime rates after 40 hours in a workweek.

AB 2932 received lots of attention for the drastic change from both California and federal law as to when overtime accrues. However, the bill is now on hold as it failed to meet committee deadlines for consideration.

While the bill won’t proceed this year, employers should watch as it could be amended or reintroduced in 2023.

Jackson Lewis continues to track legislation that affects employers in California and across the nation. If you have questions about compliance with overtime requirements and related issues, contact a Jackson Lewis attorney to discuss.

In 2020, the California legislature considered a bill in which employers would be required to provide employees with bereavement leave, but the legislation didn’t make it to the Governor’s desk.

Assembly Bill (AB) 1949 reintroduces the idea of mandatory bereavement leave and expands the allowance from the 2020 proposal. AB 1949 would make it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave upon the death of a family member, including a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. AB 1949 would require that leave be completed within 3 months of the date of death. The bill would also require the employer to maintain employee confidentiality relating to bereavement leave.

The bill would require that leave be taken pursuant to any existing bereavement leave policy of the employer. Under the bill, in the absence of an existing policy, the bereavement leave would be unpaid, however, the bill would authorize an employee to use certain other leave balances available to the employee, including accrued and unused paid sick leave. If an employer’s existing leave policy provides for less than 5 days of bereavement leave, the bill would require the employer to provide a total of at least 5 days of bereavement leave to employees.

AB 1949 would not apply to employees who are covered by a valid collective bargaining agreement that provides for prescribed bereavement leave and other specified working conditions.

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

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.