Only a month ago, Los Angeles and the Bay Area released criteria for lifting masking requirements that had been in place since the summer. However, with recent increases in COVID-19 cases, California’s Department of Public Health (CDPH) issued a new mandate requiring masks to be worn in all indoor public settings irrespective of vaccine status, effective December 15, 2021 through January 15, 2022.

The CDPH order is vague as to the meaning of “indoor public setting.” However, the CDPH Face Covering Q&A page, indicates certain exemptions to “universal masking” suggesting a broad definition of “indoor public setting” as has been the case with prior county and state orders.

The following are exemptions to indoor masking:

  • Masks may be removed while actively eating or drinking.
  • Persons who are working alone in a closed office or room.
  • Persons who are actively performing at indoor live or recorded settings or events such as music, acting, or singing. If performers do not wear a mask indoors while performing, CDPH strongly recommends that individuals undergo screening testing at least once weekly. An FDA-approved antigen test, PCR test, or pooled PCR test is acceptable for evaluation of an individual’s COVID-19 status.
  • Persons who are obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face-covering is necessary to perform the services.
  • Workers who wear respiratory protection, per Cal/OSHA requirements.
  • Persons who are specifically exempted from wearing masks by other CDPH guidance.

The CDPH also issued updated requirements for attending mega-events, like concerts and sporting events, mandating proof of vaccination or a negative antigen COVID-19 test.

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 in 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.

Under California’s Private Attorneys General Act (PAGA), an “aggrieved employee” may bring a representative action on behalf of him or herself and other “aggrieved employees” for civil penalties for various violations of the California Labor Code. (Labor Code §§2698, et seq.)  PAGA cases have become increasingly more frequent for various reasons, including the fact that PAGA claims cannot currently be compelled to arbitration.

Several business organizations joined together in October 2021 to file a proposed proposition with the California Attorney General entitled “Californians For Fair Pay and Employer Accountability Act”, which seeks to repeal PAGA.  California’s Secretary of State recently approved the circulation of the PAGA reform petition for signatures. Supporters of the initiative have until June 6, 2022, to collect at least 623, 212 valid signatures to qualify the measure for the November 2022 general election. Assuming all required signatures are valid, the Proposition would be voted upon by the general public in November 2022.

If approved by California voters, the Proposition would repeal PAGA and eliminate the Labor Commissioner’s authority to contract with private organizations or attorneys to assist with enforcement actions.  Instead, the proposition proposes that the California Legislature provide funding for the Labor Commissioner to enforce Labor Code violations. Moreover, the California Labor Commissioner would be required to provide pre-enforcement advice and allow employers to cure alleged violations without penalties. However, the petition also proposes increased penalties for willful violations of the Labor Code.

Jackson Lewis continues to track legislation and changes in California employment law affecting employers. If you have questions about the proposed reforms to PAGA or related issues, please contact a Jackson Lewis attorney to discuss.

The federal OSHA COVID-19 Emergency Temporary Standard (ETS) is currently paused while the Sixth Circuit decides its fate.  Similarly, Cal/OSHA had previously postponed its discussions of changes to the state’s COVID-19 ETS to see what would happen with OSHA.

However, time is starting to tick on the current Cal/OSHA ETS, which expires on January 14, 2022. As such, the readoption of the Cal/OSHA ETS is back on the agenda for the Standards Board meeting for December 16, 2021.

The Standards Board was previously scheduled to consider revision and readoption of the ETS in October and released the proposed changes at that time.

However, the proposal posted for the December meeting does include a few minor revisions to the definitions in the ETS including COVID-19 test and face coverings.

The definition of COVID-19 test under the requirements includes self-administered tests, but such tests must either be observed by the employer or an authorized telehealth proctor.

The definition of a face covering is also more detailed stating a face-covering includes:

  • surgical masks
  • medical procedure masks
  • respirators worn voluntarily
  • tightly woven fabric or non-woven material of at least two layers that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the heads.
  • gaiters that have two layers of fabric or are folded to make two layers.

Otherwise, the proposed changes to Cal/OSHA’s ETS are the same as proposed in October including revisions regarding exclusion from the worksite and return to work criteria.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 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.

Recently, the 9th Circuit applied, in an unpublished opinion, the U.S. Supreme Court’s broad definition of minister for purposes of the “ministerial exception.” Under the ministerial exception, religious institutions have a First Amendment right “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

The Supreme Court has broadly defined what employment positions are eligible for the application of the exception. In determining whether employees at religious schools are ministers, the Supreme Court has explained that the core consideration is their “role in conveying the Church’s message and carrying out its mission.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063 (2020) (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192 (2012)). “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Id., at 2064.

The 9th Circuit in Orr v. Christian Brothers High School, Inc. held the plaintiff qualified as a minister for purposes of the ministerial exception, focusing on the employee’s role in conveying the Church’s message and carrying out its mission. The court reasoned that the plaintiff participated in religious services and activities, aiding the school in developing a faith-based community and inculcating faith-based teachings. He had supervisory authority over aspects of religious instruction and programming. He also received religious education as part of his role. The court held that based on the U.S. Supreme Court’s formulation, the plaintiff qualified as a minister under the ministerial exception.

In this case, while the plaintiff made harassment claims that could be deemed to survive the ministerial exception, the 9th Circuit held that the allegations were “so intertwined with the employment decisions that the claims cannot be separated.”

The 9th Circuit also upheld the district court’s finding that the religious school did not waive its statutory exemption under the California Fair Employment and Housing Act (FEHA) for non-profit religious corporations. The court pointed out that the school’s employee handbook never explicitly referenced FEHA and makes no promises it is bound by FEHA.

The case is a good reminder for non-profit religious employers both in protections for employment decisions but also in reviewing employee handbooks to ensure statutory exemptions are appropriately protected.

If you have questions about the application of employment law regulations to religious employers or related issues, contact a Jackson Lewis attorney to discuss.

At the start of 2021, California’s family and medical leave law, the California Family Rights Act (CFRA), expanded its coverage to apply to smaller employers—from employers with 50 or more employees to those with just 5 or more employees.  More recently, during the 2021 legislative session, California’s governor signed legislation to add “parent-in-laws” under the coverage of care for a family member.

Due to the continued expansion of CFRA, employers with California employees should refresh themselves with the basics as there are significant differences from the federal Family Medical Leave Act (FMLA).

Read the full article at Jackson Lewis’ Disability, Leave & Health Management Blog.

Most employees in San Francisco (and throughout California)  receive one hour of paid sick leave for every 30 hours worked.  The San Francisco Board of Supervisors is now considering an ordinance that would broaden the availability of paid sick leave to domestic workers by establishing a “portable” paid sick leave system.

The “Domestic Workers’ Equal Access to Paid Sick Leave Through a Portable System” ordinance would require any employer of domestic workers, including individual households, to provide their workers with paid time off through a portable benefits system.

Under the current version of the proposed ordinance, a domestic worker includes an individual who provides labor or services in a residence caring for a child; serving as a companion, or providing other non-medical care or services for a sick, convalescing, disabled, or senior person; cleaning, cooking, providing food or butler service, gardening, personal organizing, or performing other in-home personal or domestic service. A domestic worker also includes an individual who as part of their employment or contract resides in the personal residence of the hiring entity.

A “hiring entity” is defined as any person who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency contracts with or hires a domestic worker.

Under the proposal, a hiring entity shall without regard to the employment classification of the domestic worker, provide paid sick leave funds. The domestic worker would then accrue a right to paid sick leave in a manner similar to other employees, i.e. not less than one hour of net pay, at the worker’s regular rate of pay, for every 30 hours of work for the hiring entities.

The right to paid sick leave would accrue in hour-unit increments, but the funds would not be transferred from the hiring entity to the domestic worker until the domestic worker requests the paid sick leave funds. The hiring entity would be responsible for any tax withholding or tax reporting obligations for the contribution at the time the paid sick leave funds are transferred. Hiring entities may not interfere with or deny the exercise of any right protected under this new ordinance, nor may they take any adverse action against any domestic worker who exercises their right protected under this new ordinance.

If passed, the San Francisco Office of Economic and Workforce Development would be tasked with developing and administering the portable paid sick leave system in an effort to minimize administrative burdens for the hiring entity and domestic worker. The system will track each covered worker’s hours worked for a hiring entity and net pay rates and calculate the accrued right to paid sick leave funds. The system will also coordinate the transfer of funds from one or more hiring entities from which the right to paid leave has accrued.

The ordinance would not be operative until sometime in 2022 if passed.

If you have questions about this proposed ordinance or issues related to paid sick leave requirements contact a Jackson Lewis attorney to discuss.

California’s drive toward a 15-dollar minimum wage for all employers continues. Effective January 1, 2022, the minimum wage for employers with 25 employees or less will increase to $14.00 per hour, and for employers with 26 or more employees, the minimum wage will increase to $15.00 per hour. Employers must remember this increase also affects minimum salary requirements for exempt employees.

While some local minimum wages increase mid-year, many others, like the City of West Hollywood,  increase on January 1 at the same time the State’s increases take effect.

Additionally, the following local minimum wage increases go into effect on January 1, 2022, and are differentiated by employer size:

Hayward

Employers with 25 or fewer employees:

 

$14.52 per hour

Employers with 26 or more employees:

 

$15.56 per hour
Novato

Employers with 1 to 25 employees:

 

$15.00 per hour

Employers with 26- 99 employees:

 

$15.53 per hour

Employers with 100 or more employees:

 

$15.77
Sonoma

Employers with 25 or fewer employees:

 

$15.00 per hour

Employers with 26 or more employees:

 

$16.00 per hour

The following local minimum wages go into effect on January 1, 2022, regardless of employer size:

City

Required Minimum Wage as of January 1, 2022, Irrespective of Employer Size

 
Belmont $16.20 per hour
Burlingame $15.60 per hour
Cupertino $16.40 per hour
Daly City $15.53 per hour
East Palo Alto $15.60 per hour
El Cerrito $16.37 per hour
Half Moon Bay $15.56 per hour
Los Altos $16.40 per hour
Menlo Park $15.75 per hour
Mountain View $17.10 per hour
Oakland $15.06 per hour
Palo Alto $16.45 per hour
Petaluma $15.85 per hour
Redwood City $16.20 per hour
Richmond $15.54 per hour
San Carlos $15.77 per hour
San Diego $15.00 per hour
San Jose $16.20 per hour
San Mateo $16.20 per hour
Santa Clara $16.40 per hour
Santa Rosa $15.85 per hour
South San Francisco $15.80 per hour
Sunnyvale $17.10 per hour

Employers must also ensure their minimum wage postings are updated appropriately to reflect state and local increases.

To ensure your company has up-to-date minimum wage information, subscribe to Jackson Lewis’ Minimum Wage Watch, which provides alerts on changes in the minimum wage in California and around the country.

If you have questions about minimum wage compliance contact a Jackson Lewis attorney to discuss.

 

As we approach the holiday season, employers may have uncertainty about handling holiday pay and related issues with holiday closures.

Under California law, hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. In other words, there is no requirement that employers pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium required for work performed in excess of eight hours in a workday or 40 hours in a workweek.

There is also no requirement that an employer provides employees with paid holidays. If an employer provides paid holidays for its employees, the hours paid for the holiday do not count toward hours worked for purposes of overtime calculation.

Another issue that employers should consider with wages and the holidays are paydays. If a designated payday will fall on a holiday listed in the California Government Code, including a Saturday or Sunday, employers may pay on the next business day after the holiday.

The holidays listed in the Government Code are as follows:

  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Lincoln’s Birthday
  • Third Monday in February — Washington’s Birthday
  • March 31 – Cesar Chaves Day
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • September 9 – Admission Day
  • Fourth Friday in September – Indigenous Peoples’ Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • Fourth Thursday in November — Thanksgiving Day
  • December 25 — Christmas
  • Other days appointed by the governor for a public fast, thanksgiving or holiday

If you have questions about handling employee holiday pay, or related issues contact a Jackson Lewis attorney to discuss.

On November 15, 2021, the city council of West Hollywood passed a comprehensive ordinance that implements the highest minimum wage in the country and new leave requirements for employees in the city.

Most requirements under the ordinance take effect for hotel employers, defined as owning, controlling, or operating a hotel in the city or owns, controls, and/or operates any contracted, leased, or sublet premises connected to or operated in a hotel, on January 1, 2022.

For other employers in the city of West Hollywood, many of the requirements become effective July 1, 2022.

Minimum Wage

Under the West Hollywood Ordinance, the city starts a stair-step climb, which includes two increases per year until July 2023.

1/1/2022 7/1/2022 1/1/2023 7/1/2023
Hotel Employers $17.64 $18.31* No change $18.77*
Employers with 50 Employees or more $15.50 $16.50 $17.50 $18.77*
Employers with Less than 50 Employees $15.00 $16.00 $17.00 $18.77*

*This is an estimate, the actual wage will be determined by the cost-of-living adjustment for that year.

Paid Leave

The ordinance also implements a hybrid leave which provides that both full and part-time employees are provided paid time off for sick leave, vacation, or personal necessity.

Employees must be eligible to use accrued paid time off after the first 6 months of employment or consistent with company policies whichever is sooner.

Full-time employees, defined as working at least 40 hours a week or as defined by the employer shall be provided 96 compensated hours.  Full-time employees shall accrue at least 96 compensated time off hours per year.

A part-time employee, defined as an employee who works less than 40 hours per week shall accrue compensated time off in increments proportional to that accrued by someone who works forty hours in a week.

After the employee reaches the maximum accrued time off, an employer shall provide a cash payment once every 30 days for accrued compensated time off over the maximum. An employer may provide an employee with the option of cashing out any portion of the accrued compensated time off under the maximum, but the employer may not require the employee to cash out any accrued time off.

Unpaid Leave

Under the new ordinance, West Hollywood employers must permit full-time employees to take at least 90 additional hours per year of uncompensated time to be used for sick leave for the illness of the employee or a member of the employee’s immediate family when the employee has exhausted his or her compensated time off for the year.

Jackson Lewis continues to track employment regulations across the state. If you have questions about compliance with the new West Hollywood ordinance or related questions, contact a Jackson Lewis attorney to discuss.

As uncertainty about the federal OSHA Emergency Temporary Standard persists, Cal/OSHA’s Standards Board has announced it will not discuss the changes to California COVID-19 ETS at its November 18th meeting. The Board’s consideration of the Horcher proposal (a verbatim adoption of the federal OSHA regulation) will be delayed until there is a more settled situation with the litigation regarding the federal OSHA standard.

In the meantime, Cal/OSHA’s ETS as passed in June remains in effect.

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.