In late January, California Governor Gavin Newsom announced that he and the legislature had reached an agreement on a framework to revive COVID-19 supplemental paid sick leave (SPSL), which expired in September 2021. However, there was no bill and only speculation on what coverage would look like.

On February 2, 2022, Assembly Bill 84, which details the newest version of SPSL, was released. Though still pending in the state legislature, there has been a promise by the state to move quickly to pass this bill.  As a budget bill, once signed by the governor, the bill will take effect immediately. A mirror version, Senate Bill 114, is anticipated to be released in the California Senate.  It is common for budget-related bills to have mirror bills in both the Assembly and the Senate to allow them to move more quickly through the legislature. Whichever bill moves more quickly is likely to be final.

Here are the details that employers need to know to date:

Retroactive Application

As with SPSL passed in 2021, this new SPSL benefit will apply retroactively to January 1, 2022.

Covered Employers

As with the 2021 version, employers with more than 25 employees will be required to comply with SPSL.

Covered Employees

Full and part-time employees are entitled to SPSL if the employee is unable to work or telework for any of the reasons detailed in the legislation. There is no length of service requirement for the leave entitlement.

Covered Reasons for Leave

Covered employees are entitled to SPSL for the following reasons:

  1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
  2. The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
  4. The covered employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The covered employee is caring for a child, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Amount of Covered Leave

A full-time covered employee is entitled to 40 hours of SPSL for the reasons detailed above. A part-time covered employee is entitled to a proportionate number of hours of SPSL based on the type of schedule the employee maintains for the reasons detailed above.

Both full and part-time employees are entitled to an additional amount of time, equal to their allotment for the reasons detailed above, if the employee or family member for whom the employee is caring for tests positive for COVID-19, e.g., full-time employees are entitled to an additional 40 hours. Employers are permitted to require documentation of the positive test to provide leave for this reason.

The maximum amount of SPSL a full-time employee can take during the period from January 1, 2022, to September 30, 2022, is 80 hours.  If an employee is eligible for exclusion pay under the Cal/OSHA Emergency Temporary Standard, SPSL hours cannot be used to offset any exclusion pay obligation.

Notice Requirement

The employer shall provide an employee with written notice that sets forth the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period in which it was due to be paid on either the employee’s itemized wage statement described in Labor Code section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages.

The employer shall list zero hours used if a worker has not used any COVID-19 supplemental paid sick leave.

Employers are required to post a notice to be developed by the Labor Commissioner about this new SPSL benefit. If an employer’s covered employees do not frequent a workplace, the employer may satisfy this requirement by disseminating the notice through electronic means, such as e-mail.

Jackson Lewis is closely monitoring this bill as it proceeds through the legislature. If you have questions about SPSL or related issues, contact a Jackson Lewis attorney to discuss.

In Espinoza v. Hepta Run, Inc., the California Court of Appeal reiterated that federal law preempts California meal and rest period requirements for motor carriers and confirmed such preemption also applies to short-haul drivers.

A truck driver filed a complaint against his employer alleging various wage and hour violations, including failure to provide meal and rest periods. In 2019, the employer filed a motion for summary adjudication as a matter of law to dispose of the meal and rest period claim, arguing that California’s statutes governing meal and rest periods were preempted by federal regulations concerning commercial motor vehicle safety. The trial court denied the motion and the matter proceeded to a bench trial. At the bench trial, the employer was found liable for California Labor Code violations.

The employer appealed. The California Court of Appeal then considered whether the trial court erred in denying the dispositive motion pertaining to the alleged failure to provide meal and rest periods.

In 2021, the U.S. Court of Appeals for the 9th Circuit had held that the Federal Motor Carrier Safety Administration (FMCSA) is responsible for regulating commercial motor carrier safety and that federal law preempts California’s meal and rest break rules. In this appeal, the plaintiff-truck driver argued that the preemption did not apply to him as a short-haul driver because short-haul drivers are exempted from the 30-minute rule break under federal regulations.

The Court of Appeal found for the employer, holding “[i]t is undisputed that certain [federal] hours of service rules apply to short-haul drivers, such as the daily limits on driving time and the daily and weekly limits on on-duty time. Thus the [hours of service] rules, as a general matter, apply to short-haul drivers. The fact that such drivers are exempted from one rule does not remove them from the universe of drivers subject to the hours of service rules, and it is not reasonable to read the language of the [FMCSA] order to suggest they are.” Based on its finding that preemption by federal regulations applied to the plaintiff’s claim, the Court of Appeal reversed the denial of the employer’s motion for summary judgment.  In so doing, the trial court’s later judgment for the driver was overturned, as well.

This ruling provides more clarity to motor carriers in the state as to the application of the federal preemption to California’s meal and rest break requirements.

If you have questions about meal and rest break compliance or related issues, please contact a Jackson Lewis attorney to discuss.

Last year the California Supreme Court agreed to take up a question from the 9th Circuit regarding the evidentiary standard for whistleblower retaliation claims brought under California Labor Code section 1102.5. The California Supreme Court in Lawson v. PPG Architectural Finishes, Inc, held that Labor Code section 1102.6 “provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5.” And plaintiff-employees are not required to meet the McDonnell Douglas test, set forth in McDonnell Douglas Corp. v. Green, which pertained to a claim under Title VII, the federal statute for workplace discrimination.

Under Labor Code section 1102.6, the plaintiff-employee has the burden to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. Once the plaintiff-employee has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for a legitimate, independent reason even had the plaintiff not engaged in protected activity.

The McDonnell- Douglas test swaps those burdens of proof, once the plaintiff shows that retaliation occurred, the employer could escape liability if it stated a non-retaliatory reason for its action unless the plaintiff could show, by substantial evidence, that the non-retaliatory reason was a pretext for illegal retaliation. This test is more employer-friendly than the section 1102.6 standard.

The underlying case in Lawson involved a manufacturer of paint, stains, caulks, and other products. Mr. Lawson was a territory manager whose duties included merchandising products to home improvement stores and ensuring that the company’s displays were stocked and in good condition. Mr. Lawson was allegedly directed by his supervisor to handle a product in a way that fraudulently removed a slow-selling product from its inventory. Mr. Lawson told his supervisor he would not do this and reported the issue to the company’s ethics hotline on two separate occasions. The second report to the ethics hotline resulted in an investigation. At the same time, Mr. Lawson received poor ratings for his work, was put on a performance improvement plan, and eventually terminated.

Mr. Lawson alleged in his United States District Court lawsuit against the company that he was retaliated against as a whistleblower.

The trial court in Lawson applied the McDonnell Douglas test and concluded that the plaintiff failed to carry his burden to raise triable issues of fact regarding pretext and granted the employer’s motion for summary judgment. However, in light of the decision by the California Supreme Court, the case is very likely to be directed back to the trial court with directions to apply the Labor Code burden-shifting standard. This could result in a denial of the motion for summary judgment.

If you need assistance with the defense of a whistleblower claim or have questions about handling employees’ discrimination claims, contact a Jackson Lewis attorney to discuss.

California employers are required to post their annual summary of work-related injuries and illnesses, including COVID-19 illness, in a visible and easily accessible area at every worksite from February 1st through April 30th. Employers are required to use Cal/OSHA’s Form 300A for this posting.

Employers can find an overview regarding completing both the log (Form 300) and the annual summary (Form 300A) on Cal/OSHA’s Recording Keeping Overview page.

Cal/OSHA requires employers to record work-related fatalities, injuries, and illnesses. To be recordable under Cal/OSHA’s regulations, an injury or illness must be work-related and result in one of the following:

  • Death
  • Days away from work
  • Restricted work or transfer to another job
  • Medical treatment beyond first aid
  • Loss of consciousness
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

As with other recordable injuries and illnesses, a work-related COVID-19 case must meet one of the above-referenced requirements to be recordable.

Certain employers are required to annually electronically submit Form 300A data to Cal/OSHA by March 2nd. Covered employers are those that meet one of the following requirements:

  • Has 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations.
  • Has 20 to 249 employees in the specified industries listed including Agriculture, Manufacturing, and Grocery Stores. For a full list of covered industries, employers can review Appendix H.

Information on how to make the electronic submission is available on the federal OSHA’s Injury Tracking Application website.

If you have questions about preparing your annual summary or need assistance with compliance please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

At the start of their January 20th meeting, the Cal/OSHA Standards Board announced they would not consider the proposal to adopt the federal ETS, also known as a Horcher proposal.  This comes shortly after the U.S. Supreme Court upheld a stay on the federal Emergency Temporary Standard.

If this feels like déjà vu, you are not alone.  The Cal/OSHA Standards Board previously was considering adopting the federal ETS at its November 18, 2021 meeting.  The Board delayed that proposal when the Fifth Circuit Court of Appeal reaffirmed its initial stay of the federal ETS.

While the adoption of the federal ETS is on the back burner for now, employers still need to be familiar with the amendments to the Cal/OSHA COVID-19 Emergency Temporary Standard (Cal/OSHA ETS) which went into effect on January 14, 2022, and expires on April 14, 2022.

To assist employers in complying with the amended Cal/OSHA ETS, Cal/OSHA has updated their guidance, which is linked below:

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. 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.

The California Court of Appeal, in Cirrincione v. American Scissor Lift, Inc. recently upheld a trial court order denying class certification in a wage and hour class action. Since class certification is so often granted, this decision warrants further attention.

The underlying case involved an employee bringing multiple wage and hour claims, including allegations that the employer engaged in unlawful rounding of employee’s hours worked because it did not have any rounding policy. The trial court denied the plaintiff’s motion for class certification concluding that plaintiff had failed to establish that common questions of fact and law would predominate over individual questions, or that plaintiff’s claims were typical of those of the proposed subclass. The trial court focused on the predominance of common questions requirement.

The Court of Appeal affirmed the trial court, also focusing on predominance of common questions, citing prior case law that “one valid reason for denying certification is sufficient.”

The Court of Appeal, like the trial court, did an extensive review of the allegations related to rounding finding that the trial court had correctly observed that an employer in California is entitled to round its employees’ work time if the rounding is done in a “fair and neutral” manner that does not result, over a period of time, in a failure to properly compensate an employee for all the time they have actually worked. Moreover, the court noted, there is nothing in California case law indicating that the “absence of a written rounding policy constitutes a violation of California law where an employer has a practice of rounding its employees’ worktime.” Thus, the plaintiff’s theory of liability is not a recognized theory of legal responsibility.

This decision builds further supports that rounding procedures, so long as conducted in a fair and neutral manner that does not undercompensate employees over a period of time, are still permitted under California law. Although employers should remember that last year the California Supreme Court ruled that employers were not permitted to round time for meal breaks.

The decision also indicates how even in wage and hour matters, class action certification is not necessarily a foregone conclusion if the employer can show that individual questions predominate.

If you have questions about wage and hour compliance or need assistance in the defense of an employment class action, contact a Jackson Lewis attorney to discuss.

In September 2021, California’s Governor signed Senate Bill (SB) 62 which expands the definition of the garment manufacturing industry for purposes of wage claim enforcement to include brand guarantors.  A brand guarantor is a person who contracts for the performance of garment manufacturing.  Brand guarantors include persons who license a brand or name for garment manufacturing.

SB 62 also prohibits any employee engaged in the performance of garment manufacturing to be paid by the piece or unit, or by piece rate, except for workplaces covered by a collective bargaining agreement.  The collective bargaining agreement must expressly include: (1) employees’ wages, hours of work, and working conditions; (2) premium wage rates for all overtime hours worked and a regular hourly rate for those employees of not less than 30 percent more than the state minimum wage; and (3) stewards or monitors, and a process to resolve disputes concerning nonpayment of wages.  Employers may still offer incentive-based bonuses to employees.

SB 62 went into effect on January 1, 2022. California’s Labor Commissioner, who is charged with enforcement of the law, has published FAQs regarding SB 62.

The FAQs provide some of the following clarity to the application of SB 62.

Definition of Garment Manufacturing Operations

Per Labor Code Section 2671(c), garment manufacturing operations refer to the preparation of any garment or any article of apparel or accessories designed or intended to be worn by another person, and includes sewing, cutting, making, processing, repairing, finishing, assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, or affixing a label on a garment. Garments include but are not limited to clothing, hats, gloves, handbags, hosiery, ties, scarfs, or belts.

Piece Rate in Garment Manufacturing

As stated in the law, garment manufacturing employees must be paid an hourly rate not less than the minimum wage and cannot be paid a piece rate. However, employers may offer incentive-based bonuses.

Licensing and Registration Requirement

Every person who engages in the business of garment manufacturing must register with the Labor Commissioner.  Brand guarantors must also register if they engage in garment manufacturing per the definition above.

Record-Keeping Requirements

In addition to general recordkeeping requirements of an employer, contractors and manufacturers must keep for four years:

  • The names and addresses of all garment workers directly employed.
  • The hours worked daily by employees.
  • The daily production sheets.
  • The wage and rates paid each payroll period.
  • The contract worksheets indicating the price per unit agreed to between the contractor and manufacturer.
  • All contracts, invoices, purchase orders, work or job orders, and style or cut sheets. This documentation shall include:
    • The business names, addresses, and contact information of the contracting parties.
    • A copy of the garment license for every person engaged in garment manufacturing who is a party to the contract.
    • The ages of minor employees.
    • Any other conditions of employment.

Brand Guarantors must keep the following records for four years:

  • Contract worksheets indicating the price per unit agreed to between the brand guarantor and the contractor or manufacturer.
  • All contracts, invoices, purchase orders, work or job orders, and style or cut sheets. This documentation shall include the business names, addresses, and contact information of the contracting parties.
  • A copy of the garment license of every person engaged in garment manufacturing who is required to register with the Labor Commissioner under Section 2675, and with whom the employer has entered into a contract for the performance of garment manufacturing.

If you have questions regarding compliance with SB 62 or related issues, contact a Jackson Lewis attorney to discuss.

At the end of the year, California’s Department of Public Health (CDPH) issued updated guidance regarding Isolation and Quarantine, which applied to workplaces per the Governor’s prior Executive Order. The timing of this guidance was rather awkward, as the Cal/OSHA Standards Board had recently approved changes to the Cal/OSHA ETS set to go into effect on January 14, 2022.

Since then, Cal/OSHA has updated its FAQ pertaining to Isolation and Quarantine to reflect the CDPH guidance. Thus, while other amendments will go into effect for the ETS on January 14, Cal/OSHA’s FAQ makes clear that employers should follow CDPH’s exclusion and return-to-work requirements instead of the corresponding requirements in the ETS.  Specifically, the FAQ states that “the new isolation and quarantine recommendations from CDPH replace the exclusion periods and return to work criteria in sections 3205(c)(9) and 3205(c)(10) of the ETS….”

The following sets forth the exclusion and return to work requirements per the Cal/OSHA FAQ:

Exclusion Requirements for Employees Who Test Positive for COVID-19 (Isolation)

Requirements apply to all employees, regardless of vaccination status, previous infection, or lack of symptoms.
  • Employees who test positive for COVID-19 must be excluded from the workplace for at least 5 days.
  • Isolation can end and employees may return to the workplace after day 5 if symptoms are not present or are resolving, and a diagnostic specimen* collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and their symptoms are not present or are resolving, isolation can end and the employee may return to the workplace after day 10.
  • If an employee has a fever, isolation must continue and the employee may not return to work until the fever resolves.
  • If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
  • Employees must wear face coverings around others for a total of 10 days after the positive test, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face-covering requirements.

* Antigen test preferred.

 Employees Who Are Exposed to Someone with COVID-19 (Quarantine)

Requirements apply to employees who are:

  • Unvaccinated; OR
  • Vaccinated and booster-eligible+ but have not yet received their booster dose.++

+ Refer to CDC COVID-19 Booster Shots to determine who is booster eligible.
  • Employees must be excluded from the workplace for at least 5 days after their last close contact with a person who has COVID-19.
  • Exposed employees must test on day 5.
  • The quarantine can end and exposed employees may return to the workplace after day 5 if symptoms are not present and a diagnostic specimen* collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and does not have symptoms, quarantine can end and the employee may return to the workplace after day 10.
  • Employees must wear face coverings around others for a total of 10 days after exposure, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face-covering requirements.
  • If an exposed employee tests positive for COVID-19, they must follow the isolation requirements above in Table 1.
  • If an exposed employee develops symptoms, they must be excluded pending the results of a test.
  • Employees are strongly encouraged to get vaccinated or boosted.

++Employers are not required to exclude asymptomatic employees in this category if:

  • A negative diagnostic test* is obtained within 3-5 days after last exposure to a case;
  • Employee wears a face-covering around others for a total of 10 days (please refer to the section in this FAQ on face coverings for additional face-covering requirements); and
  • Employee continues to have no symptoms.

Employees Who Are Exposed to Someone with COVID-19 (No Quarantine Required)

Requirements apply to employees who are:

  • Boosted; OR
  • Vaccinated, but not yet booster-eligible.×

× Refer to CDC COVID-19 Booster Shots to determine who is booster eligible.

 Employees do not need to quarantine if they:

  • Test on day 5 with a negative result.
  • Wear face coverings around others for 10 days after exposure, especially in indoor settings. Please refer to the section in this FAQ on face coverings for additional face-covering requirements.
  • If employees test positive, they must follow isolation recommendations above.
  • If employees develop symptoms, they must be excluded pending the results of a test.

 

This guidance is subject to change and may evolve over the coming weeks. 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.

The California Employment Development Department (EDD) has released the Voluntary Plan Employee Contribution and Benefit Rates for 2022.

Employers with employees located in California are generally required to withhold and send state disability contributions to the EDD. The 2022 rates are as follows:

“Employee Contribution Rate” 1.10%
“Taxable Wage Ceiling” (per employee per year) $145,600.00
“Maximum Contribution” (per employee per year) $1,601.60
“Maximum Weekly Benefit Amount” (WBA) $1,540.00
“Maximum Benefit Amount” (WBA X 52 weeks) $80,080.00
“Assessment Rate” (this figure is the product obtained by multiplying the worker contribution rate by 14% or 1.25 X 14%) 0.168%

The Employee Contribution Rate is the percentage withheld from the wages of employees who are covered by Disability Insurance (DI) and Paid Family Leave (PFL). For 2022, the EDD decreased the Employee Contribution Rate by 0.10% from the 2021 rate of 1.20%. The Taxable Wage Ceiling is the maximum yearly wage, per employee, that is subject to DI and PFL withholding. The Maximum Contribution is the maximum amount withheld from the yearly wages of an employee who is covered by state disability and who annually earns an amount equal to or exceeding the Taxable Wage Ceiling.

The change in contribution rates and the Maximum Weekly Benefit Amount are relevant to employers who must comply with San Francisco’s Paid Parental Leave Ordinance (PPLO).  The city of San Francisco requires most employers with 20 or more employees worldwide to supplement PFL benefits received by employees to bond with a new child.  During the PFL leave period, the PPLO supplemental compensation provided by an employer, added to the PFL wage replacement benefit received from the EDD, must equal 100% of the employee’s gross weekly wage, subject to a cap.  For 2022, the PPLO cap will be $2,567 per week.

The Assessment Rate is relevant to employers that maintain a state-approved voluntary plan (VP), which is a disability insurance plan that an employer can offer to its California employees as a legal alternative to mandatory DI and PFL.  The Assessment Rate is the amount that an employer pays to the EDD as an administrative expense for maintaining a voluntary plan.

The EDD also released an updated Overview of California’s Paid Family Leave Program.

Jackson Lewis continually monitors governmental changes affecting California employers. If you have questions regarding Paid Family Leave, the Paid Parental Leave Ordinance or other wage replacement requirements contact a Jackson Lewis attorney to discuss.

In mid-December, as COVID-19 cases began to rise, the California Department of Public Health (CDPH) reinstituted indoor masking requirements and Cal/OSHA confirmed that requirements applied in the workplace. When issued, the mandate was only supposed to remain in effect until January 15, 2022.

However, with COVID-19 cases still on an uptick, the CDPH has extended the requirement for universal masking indoors through February 15, 2022.  While not mandated under the state order, the guidance does encourage the use of surgical masks or higher-level respirators such as N95s.

Los Angeles County Department of Public Health has gone a step further than the state guidance and issued an updated order that requires employers to provide employees who work indoors and in close contact with other workers or the public, with medical-grade masks, surgical masks, or higher-level respirator such as N95, at all times while indoors or at the worksite, no later than January 17, 2022.

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates on workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.