In January the California Department of Public Health (CDPH) extended universal masking indoors through February 15, 2022, due to a continued COVID-19 surge. In advance of the expiration, Governor Newsom announced that universal masking would not be extended again. The CDPH also published mask guidance for after February 15th.

Effective February 16, 2022, universal indoor masking will end. However, all individuals regardless of vaccination status will still be required to wear masks in the following indoor settings:

  • On public transit
  • Indoors in K-12 schools and childcare
  • Emergency shelters and cooling and heating centers
  • Healthcare settings
  • State and local correction facilities and detention centers
  • Homeless shelters
  • Long term care settings and adult and senior care facilities

In addition, unvaccinated individuals will be required to wear masks in indoor public settings and businesses. Vaccinated individuals are recommended, but will not be required, to wear masks indoors when the risk may be high.

The CDPH guidance states that for businesses where only unvaccinated individuals must wear masks, the business may choose to:

  • Provide information to all patrons, guests, and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
  • Implement vaccine verification to determine whether individuals are required to wear a mask.
  • Require all patrons to wear masks.

Cal/OSHA’s Amended COVID-19 Emergency Temporary Standard (ETS) went into effect on January 14, 2022. Under the current ETS, unvaccinated individuals in the workplace must wear a mask. If an employer is not tracking vaccination status, then it must treat all employees as unvaccinated – meaning all employees would have to wear a mask. Employers should be mindful of other mask requirements under the ETS, including, but not limited to, screening, return to work, outbreak situations, and when required by the CDPH.

Finally, employers should check local health orders and ordinances regarding masking as some local public health departments have set plans to continue universal masking mandates despite the coming expiration of the state requirements.

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.

The Private Attorneys General Act (PAGA) has been in the news lately with a proposed state Proposition seeking to reform it, and the Supreme Court taking up a case regarding PAGA and arbitrations. Though recent developments give hope to employers that some limitations will be placed on PAGA claims, the filing of PAGA claims continues to rise, with over 6,000 PAGA notices filed in 2021.

While PAGA claims are often compared to class actions, many of the rules and regulations governing class actions are not present such as the certification process. PAGA provides employees with a private right of action against an employer in order to collect civil penalties for California Labor Code violations on behalf of the state’s Labor and Workforce Development Agency (LWDA) and other aggrieved employees.

Notice and Cure Period

PAGA requires that claim notices, responses, and certain court documents be filed with the LWDA. Notice Letters are submitted pursuant to PAGA, which authorizes current and former employees to file state-wide, representative actions on behalf of themselves and similarly situated employees.

Some alleged violations can be cured.  Under PAGA, a defendant company has 33 days from the postmarked date of the notice to cure these alleged violations of the Labor Code. If these violations can be cured within the 33-day period, the claims can be barred.  If these violations are not cured, the Plaintiff-employee may initiate a lawsuit under PAGA. Because of this limited cure period, companies need to be alert to receipt of the notices and contact employment counsel quickly.

Otherwise, as to other alleged violations of the Labor Code, a Plaintiff may initiate a lawsuit under PAGA once 65 days have elapsed from the filing of the notice with the LWDA.

Things Employers Should Do to Protect Themselves

  1. Conduct Wage and Hour Audits: Employers may be hesitant to conduct audits for a variety of reasons. However, with the threat of collective actions like PAGA, employers must discover problems before a claim is brought.
  2. Review company policies and procedures: Ensuring the company has compliant policies can potentially reduce claims but also assist in the defense of the company if claims are brought.
  3. Ensure wage statements and time-keeping systems are compliant: As relatively small issues could potentially cost the company millions of dollars when multiplied across all “aggrieved employees.”

If you have questions about PAGA or have received a PAGA notice, reach out to Jackson Lewis’ California Class and PAGA Action team or the Jackson Lewis attorney with whom you regularly work.

Under federal law, there is the Worker Adjustment and Retraining Notification Act (WARN) which sets forth certain requirements for businesses who are closing locations and/or proceeding with large-scale reductions in force. As is typical for the state, California has separate WARN regulations often referred to as Cal-WARN.

Here are some of the important differences between the federal and California WARN Acts:

  Federal WARN Cal-WARN
Covered Employers

Applicable only to employers with 100 or more full-time employees* who must have been employed for at least 6 months of the 12 months preceding the date of required notice in order to be counted.

 

* Or 100 or more employees (including part-time employees) who in the aggregate work at least 4,000 hours per week (exclusive of overtime)

Any industrial or commercial facility or part thereof that employs, or has employed within the preceding 12 months, 75 or more persons.

 
Plant Closing (Termination), Layoff, or Relocation Requiring Notice

Plant closings involving 50 or more employees (excluding part-time employees) during a 30-day period. Layoffs within a 30-day period involving 50 to 499 full-time employees constituting at least 33% of the full-time workforce at a single site of employment. Layoffs of 500 or more full-time employees are covered regardless of the percentage of the workforce.

Does not cover employees who may otherwise be affected by relocations or consolidations of parts or all of the business if there is no more than a six-month break in employment and the employer offers a transfer to the employee within a reasonable commuting distance, or the employee accepts the transfer regardless of distance within 30 days of the offer or the closing or layoff, whichever is later.

 Plant closure affecting any number of employees. Layoff of 50 or more employees within a 30-day period regardless of % of the workforce. Relocation of at least 100 miles affecting any number of employees.
Notice Requirement An employer must provide written notice 60-days prior to a plant closing or mass layoff to employees or their representative, the State dislocated worker unit (the Employment Development Department, Workforce Services Division in California), and the chief elected official of local government within which such closing or layoff is to occur. An employer must give notice 60-days prior to a plant closing, layoff, or relocation. In addition to the notifications required under federal WARN, notice must also be given to the Local Workforce Development Board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff occurs.

 

California’s Employment Development Department (EDD) also has an FAQ page that may be useful for employers.

If you need assistance with a mass layoff and related issues, contact a Jackson Lewis attorney to discuss.

January 31st was the last day for the California legislature to approve bills that had been initially introduced in 2021 before they are shelved for good. The FAST Recovery Act (Assembly Bill (AB 257) was such a bill.

AB 257 would create an 11 member Fast Food Sector Council appointed by the Governor and state legislators to review and create workplace standards for fast food employees – including standards on wages, working conditions, and training – and to issue, amend, and repeal rules and regulations pertaining to fast food employment as appropriate.  The Council would be required to hold public hearings every six months and to conduct a full review of the adequacy of minimum fast-food restaurant health, safety, and employment standards at least once every three years.  The bill would also permit a county, or a city with a population greater than 200,000, to establish a Local Fast Food Sector Council authorized to provide recommendations to the state Council and would prescribe requirements for the state Council in connection with these recommendations.

In addition, AB 257 would have significant implications for franchisers as it would require that fast food restaurant franchisers be responsible for ensuring that their franchisees comply with a variety of employment, worker, and public health and safety laws and orders, including those related to unfair business practices, employment discrimination, the California Retail Food Code, labor regulations, emergency orders, and standards issued by the Council.  If passed, the bill would make a franchiser jointly and severally liable for violations of its franchisees and would provide that specified laws may be enforced against a franchiser to the same extent that they may be enforced against a franchisee.  Further, AB 257 would make any agreement by a franchisee to indemnify its franchiser for liability void and unenforceable as contrary to public policy and would allow franchisees to file an action against their franchisers for monetary or injunctive relief in connection with the franchisee’s compliance with specific laws.

Last year, the author of AB 257 sent the bill to the inactive file, but it was pulled out this year, amended, and passed by the California State Assembly on January 31st. The bill now has to pass California’s Senate and be signed by the Governor to become law.

Jackson Lewis tracks legislation relevant to employers in California and across the nation. If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

 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.